Case 5:17-cv-00404-OLG Document 25 Filed 06/05/17 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas, Mayor Raul L. §

Reyes of City of El Cenizo, Maverick

§

County, Maverick County Sheriff Tom

§

Schmerber, Maverick County Constable §

Pct. 3-1 Mario A. Hernandez, and League §

of United Latin American Citizens,

§

§

Plaintiffs,

§

§

vs.

§

§

State of Texas, Governor Greg Abbott

§

(In His Official Capacity), and Texas

§

Attorney General Ken Paxton (In His

§

Official Capacity),

§

§

Defendants.

§

Civil Case No. 5:1 7-cv-404-OG

AMICUS BRIEF OPPOSING DEFENDANTS' OPPOSED MOTION TO DISMISS OR TRANSFER INTRODUCTION
The Mexican American Legal Defense and Education Fund ("MALDEF"), a civil rights
law firm which was sued by the State of Texas (the "State") in an unprecedented move to silence opposition to Senate Bill 4 ("S.B. 4"), submits this brief to support Plaintiffs' Opposition to
Defendants' Opposed Motion to Dismiss or Transfer. S.B. 4 is a controversial law that the State knew would be met with public outcry. The
State anticipated that the law would face challenges to its constitutionality, and in a move to silence the opposition and to obtain its preferred forum, the State filed an anticipatory, declaratory lawsuit in the Austin Division of this District. Texas v. Travis County, Texas, et al., No. 1:1 7-cv-00425-SS ("Travis County"). The State filed the suit against individuals and jurisdictions who had criticized S.B. 4 while it was under consideration in the State house and

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Senate. The Travis County defendants include jurisdictions, employees of those jurisdictions,
and even MALDEF a public interest civil rights law firm. The State's lawsuit is premature, improper, and chills the First Amendment Rights of
jurisdictions, public interest groups, and private individuals. For the reasons discussed below, this Court should deny Defendants' Opposed Motion to Dismiss or Transfer (the "State's Motion") or, in the alternative, stay proceedings in this case until the Travis County court rules on the motions to dismiss and motion to consolidate presently before it.
BACKGROUND S.B. 4 was signed into law on May 7, 2017. It prohibits local entities from adopting, enforcing, or endorsing a policy that prohibits or materially limits the enforcement of "immigration laws," and is one of the most restrictive and prohibitive anti-immigrant state laws in the United States. On May 7, 2017, the same day that S.B. 4 was signed into law, the State sued Travis County, Texas, the City of Austin, Texas, and officials from Travis County and Austin (collectively, "Jurisdictional Defendants"), and MALDEF seeking a declaratory judgment that S.B. 4 is valid under the Fourth and Fourteenth Amendments to the United States Constitution and is not preempted by federal law. S.B. 4 does not go into effect until September 1,2017. On May 8, 2014, the City of El Cenizo, Texas, Maverick County, officials from El Cenizo and Maverick County, and League of United Latin American Citizens filed this action challenging the constitutionality of S.B. 4. On May 22, 2017, in the San Antonio Division of this District, El Paso County, Richard Wiles, Sheriff of El Paso County, and the Texas Organizing Project Education Fund brought a related action against the State and several State officials similarly challenging S.B. 4. El Paso County, et al. v. Texas, et. al., No. 5:1 7-cv-00459-OLG.
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On May 24, 2017, the State filed an Opposed Motion to Consolidate in Travis County
seeking consolidation of the Travis County and this action in the Austin Division. On the same day, the State filed a similar motion in this Court, the State's Motion.
On May 24, 2017, and May 26, 2017, the Jurisdictional Defendants in Travis County filed motions to dismiss and requested expedited rulings for the same. Additionally, MALDEF may shortly ask the State to withdraw its pleading against MALDEF pursuant to Rule 11.
ARGUMENT I. The Court Should Deny the State's Motion
The State has the burden to show that this case should be dismissed or transferred. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); see also Healthpoint, Ltd v. Derma Scis., Inc., 939 F. Supp. 2d 680, 684 (W.D. Tex. 2013). "Defendants must demonstrate good cause for
the transfer." Permian Basin Petroleum Ass'n v. Dep't of the Interior, No. MO-14-CV-050, 2015
WL 11622492, at *5 (W.D. Tex. Feb. 26, 2015). The State cannot meet this burden and its motion should be denied.
a. The First-Filed Rule Does Not Mandate Dismissal or Transfer
The State anticipated challenges to a controversial law, S.B. 4, and filed an anticipatory, declaratory suit in the Austin Division in order to obtain its preferred forum. This Court should not, and need not, countenance such legal gamesmanship, which would chill the First
Amendment rights of many Texans. Instead, this Court should exercise its discretion and reject the State's attempt to use improper legal machinations to invoke the first-filed rule. See Harris Cly., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 319 (5th Cir. 1999) ("CarMax") (stating that dismissal of an action when duplicative litigation is pending in another jurisdiction "is committed to the district court's discretion"); see also 909 Corp. v. Viii. of Boiingbrook
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Police Pension Fund, 741 F. Supp. 1290, 1292 (S.D. Tex. 1990) (dismissing the first-filed suit and stating that "[t]he Court cannot allow a party to secure a more favorable forum by filing an action for declaratory judgment when it has notice that the other party intends to file suit involving the same issues in a different forum.").
The court has broad discretion to decide whether to keep, transfer, stay, or dismiss a case when similar litigation is pending in another jurisdiction. See CarMax, 177 F.3d at 319; see also Permian Basin Petroleum Ass'n v. Dep't of the Interior, No. MO-14-CV-050, 2015 WL 11622492, at *5 (W.D. Tex. Feb. 26, 2015) (noting that the court "has broad discretion in deciding whether to transfer venue."). The first-filed rule does not trump such discretion. See Carmax, 177 F.3d at 319; see also Alitrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 628 (9th
Cir. 1991) (stating that "district court judges can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity."). Even where a court determines that the first-filed
rule applies, the second-filed court may in its discretion deny a motion to transfer to the firstfiled venue where the court determines that defendants fail to show good cause to transfer the case. See Permian Basin Petroleum Ass'n v. Dep't ofthe Interior, No. MO-14-CV-050, 2015 WL 11622492, at *5 (W.D. Tex. Feb. 26, 2015). Although a rigid application of the "first-to-file
rule would have the virtue of certainty, 'the cost a rule which will encourage an unseemly race to the courthouse and quite likely numerous unnecessary suits is simply too high." Texas
Instruments Inc. v. Micron Semiconductor, Inc., 815 F. Supp. 994, 998 (E.D. Tex. 1993) (quoting Tempco Elec. Heater Corp. v. Omega Eng'g, Inc., 819 F.2d 746, 750 (7th Cir. 1987)); see also Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952) ("Wise judicial administration, giving regard to conservation ofjudicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems."). "The
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circumstances under which an exception to the first-to-file rule typically will be made include bad faith, anticipatory suit, and forum shopping." Alitrade, Inc., 946 F.2d at 628 (citing Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir. 1983)) (internal citations omitted). The conduct by the State in this case warrants an exception to the first-filed rule.
First, anticipatory suits such as Travis County are frequently found to warrant an exception to the first-filed rule. See, e.g., Serco Servs. Co., L.P. v. Kelley Co., No. CA 3:93-C V1885-R, 1994 WL 715913, at *1 (N.D. Tex. May 24, 1994), affd, 51 F.3d 1037 (Fed. Cir. 1995)
(dismissing the first-filed suit after finding that "the filing of an anticipatory suit trumps the 'first-filed' rule); see also Gemmy Industries Corp. v. Blue Ridge Designes, Inc., 3 :99-cv-0008,
1999 WL 58785 (N.D. Tex. Feb 1, 1999) (stating that the first-filed declaratory judgment action was a "preemptive strike" and dismissing). As the Fifth Circuit has observed, "[a]nticipatory
suits are disfavored because they are an aspect of forum-shopping." Mission Ins. Co., 706 F.2d
at 601 n.3. Because "the alleged victim is typically given the right to choose the forum where its case will be heard," "[s]everal courts in this circuit have found that allowing an alleged wrongdoer to proceed with a declaratory judgment action divests the true plaintiff this right." Pennsylvania Gen. Ins. Co. v. CaremarkPCS, No. CIV.A.3:05-CV-0844-G, 2005 WL 2041969,
at *7 (N.D. Tex. Aug. 24, 2005). The State has attempted to gain the advantage of its preferred forum by filing the suit for declaratory judgment before any challenges to S.B. 4 could be made
and the law goes into effect. Such anticipatory suit and forum shopping by the State cannot be permitted.
Second, and as a result of the State's gamesmanship, Travis County will likely be dismissed against all defendants for lack ofjurisdiction and lack of standing. Therefore, this Court should not transfer this case to that forum. In Travis County, the City of Austin and Travis
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County have already filed motions to dismiss, and MALDEF will be filing its own motion in due
course, on the grounds that the State's suit is devoid of any case or controversy and reflects an improper attempt to obtain an "advisory opinion." See Life Partners, Inc. v. Life Ins. Co. ofN
Am., 203 F.3d 324, 325 (5th Cir. 1999) ("Federal courts do not render advisory opinions.").
Both Article III of the U.S. Constitution and the Declaratory Judgment Act, 28 U.S.C. § 220 1(a) require an actual controversy. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014); Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000); Golden v. Zwickler, 394 U.S. 103, 110 (1969). The State's complaint does not, and cannot, allege as to any of the Travis County defendants, including MALDEF, a justiciable controversy that "can presently be litigated and decided" and is "not hypothetical, conjectural, conditional, or based upon the possibility of a factual situation that may never develop." Rowan Cos., Inc. v. GrfJln,
876 F.2d 26, 28 (5th Cir. 1989) (internal quotations omitted).
One Northern District of Texas case is particularly instructive: There, a city attempted to obtain a declaratory judgment that its ordinance was constitutional. Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 880, 884 (N.D. Tex. 2008). The court declined to issue any such judgment. Importantly, the court found that plaintiffs' counsel's publicly stated
intention to challenge the ordinance was not sufficient to create a controversy, as "no lawsuit has
been filed on behalf of any individual or entity to enjoin the New Ordinance or to challenge its constitutionality." Id.; see also HillwoodDev. Co. v. Related Cos., Inc., No. 3:04-CV-1100-L,
2006 WL 1140472, at *6 (N.D. Tex. Apr. 28, 2006) ("Although there is a hypothetical possibility that a lawsuit will be filed, such possibility is not sufficiently immediate and real to constitute a justiciable controversy.").

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As applied to MALDEF, the Travis County suit is particularly frivolous and reflects an
improper attempt to chill MALDEF's representation of future clients. MALDEF is a civil rights law firm which has no members and files suits on behalfofits clients. Suing MALDEF in the first instance is the equivalent of suing a private law firm for declaratory relief, on the ground that they were soliciting clients for a new products liability suit. Such tactics are patently
abusive and intended for an improper purpose, including forum shopping and to chill civil rights
organizations from speaking out against laws under pain of being forced into an anticipatory lawsuit, whether the organization has an actual client prepared to sue or not.
For these reasons, the Travis County lawsuit will likely be dismissed. This Court, therefore, should not transfer this case and, instead, should deny the State's Motion.
b. Venue is Proper in the San Antonio Division Under 28 U.S.C. § 1391(b) and
28 U.S.C. § 1406 Does Not Apply
The San Antonio division is a proper venue for this action. Venue is proper in a judicial
district "in which any defendant resides, if all defendants are residents of the State in which the district is located" or "in which a substantial part of the events or omissions giving rise to the
claim occurred." 28 U.S.C. § 1391(b). Here, all defendants reside in the Western District. Texas also enacted S.B. 4 in the Western District. Venue is therefore appropriate anywhere in the
Western District of Texas under 28 U.S.C. § 139 1(b). There is no requirement that federal civil cases be filed in a particular division of a
judicial district. See In re Gibson, 423 F. Apptx 385, 388 (5th Cir. 2011) ("Prior to its repeal in 1988, the divisional venue statute, 28 U.S.C. § 1393, had limited plaintiffs in multi-divisional districts to filing suit in the division where the defendant resided. After that statute was repealed, plaintiffs were free to file suit in any division in a district."); 14D Charles Alan Wright Ct al.,

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Fed. Prac. & Proc. Juris. § 3809 (4th ed. 2017) ("Fortunately, Congress repealed Section 1393 in 1988. Accordingly, there is no longer any statutory requirement that venue in federal civil cases be laid in a particular division within a district.").
In a recent Western District case, a court analyzed this question and concluded that "venue is permissible anywhere in the WDT" because a substantial part of the events or omissions giving rise to the action occurred in the Western District. Graciela Galindo, et al. v. Reeves County Texas, et al., No. EP-10-CV-454-DB, 2011 WL 13175764, at *2 (W.D. Tex. Apr. 12, 2011) (emphasis original). The court disagreed that venue was not proper in the El Paso division because no events giving rise to the action occurred there. Id. The court noted that the defendant's "only basis for transfer pursuant to § 1406(a) is the conclusory statement that '[t]his suit is filed in the wrong division." Id. at *1 n.3.
The State makes the same conclusory arguments here. The State fails to cite any authority that requires a plaintiff to file in a specific division. The cases it does cite are irrelevant. The State's primary citation discusses whether Washington, D.C. or Vermont is the appropriate venue for a lawsuit against a federal official. Butterworth v. Hill, 114 U.S. 128 (1885). The case
says nothing about divisions of a federal district. Id. None of the other case law the State cites discusses divisions of a federal district either. Instead, the case law it cites show that this action is appropriate in any division in the Western District, including San Antonio. See, e.g., Florida Nursing Home Ass 'n v. Page, 616 F.2d 1355, 1361(5th Cir. 1980), rev 'don other grounds, Fla. Dep 't ofHealth & Rehab. Servs. v. Fla. Nursing Home Ass 'ii, 450 U.S. 147 (1981) ("This is not to suggest that only a single district can satisfy the statutory standard with respect to any given claim. Often, the factors deemed determinative might well indicate the suitability of several
forums.") (citations omitted).

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Because venue is appropriate in this action, 28 U.S.C. § 1406 does not apply. A district court may only dismiss or transfer a case under 28 U.S.C. § 1406 "when venue is 'wrong' or
'improper' in the forum in which it was brought. Ati. Marine Const. Co. v. US. Dist. Courtfor W. Dist. of Texas, 134 S. ct. 568, 577 (2013). To transfer this case to another venue, the State
must meet the burden to transfer under 28 u.s.c. § 1404. It does not meet that burden, as discussed below.
c. The State Fails to Meet Its Burden to Show That Austin is "Clearly More Convenient" than San Antonio as Required Under 28 U.S.C. § 1404
The State fails to meet its burden to show that the Austin division is "clearly more convenient" than the San Antonio division. The State offers no evidence that any of the public or private factors "clearly point towards hearing the case in the alternative forum."
Under 28 U.S.C. § 1404(a), a court may transfer an action to any other proper judicial
district "[for the convenience of the parties and witnesses, in the interest ofjustice." "If venue is proper in the destination venue, the moving party bears the burden of demonstrating that good
cause exists to transfer the case for convenience purposes." Graciela Galindo, N20 11 WL 13175764 at *2 (citing In re Volkswagen ofAm., Inc., 545 F.3d 304, 311(5th Cir. 2008) (en banc)). "A court will respect a plaintiffs choice of venue, however, 'when the transferee venue is
not clearly more convenient than the venue chosen by the plaintiff ...." Id. (quoting Volkswagen ofAm., 545 F.3d at 311). The moving party bears the burden of showing that the destination forum is "clearly more convenient." Id. (citing Volkswagen ofAm., 545 F.3d at 311).
When deciding whether to transfer venue, a court balances the private interests of the litigants and the public's interest in the fair and efficient administration ofjustice. Zurich Am. Ins. Co. v. Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 720 (W.D. Tex. 2013). The

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private interest factors are: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious
and inexpensive." Id. at 721 (citing In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)). The public interest factors are: "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the
forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law." Id. (citing Volkswagen AG, 371 F.3d at 203). None of the factors are dispositive. Id. (citing Action Indus., Inc. v. US. Fid. & Guar. Co.,
358 F.3d 337, 340 (5th Cir. 2004)).
"[A] plaintiffs choice of forum is highly esteemed and may only be overcome when the
private and public factors clearly point towards hearing the case in the alternative forum." Cortez v. Brad Drake Constr., LLC, No. EP-15-CV-346-KC, 2016 WL 1312636, at *2 (W.D. Tex. Apr. 4, 2016) (citing Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 672 (5th Cir. 2003); Schexnider v. McDermott Int'l, Inc., 817 F.2d 1159, 1163 (5th Cir. 1987)). "The clearly more convenient standard "places a significant burden on [Defendant] to show good cause for transfer." Auto-Dril, Inc. v. Nat'! Oilwell Varco, L.P., No. 6:1 5-CV-0009 1, 2016 WL 6909479, at *3 (W.D. Tex. Jan. 28, 2016) (citation omitted).
i. The Public Factors Do Not "Clearly Point Towards Hearing the Case in the Alternative Forum"
The State fails to show that the public factors "clearly point towards hearing the case in the alternative forum." As an initial matter, because Travis County is likely to be dismissed,
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there is no reason to believe any cases other than the ones filed in San Antonio will go forward and involve issues of access to proof, convenience to witnesses, etc.
1. Relative Ease to Access to Sources ofProof The State argues that the sources of proof are in Austin. That is not true. Most of the sources of proof can be accessed anywhere. S.B. 4 and its legislative history are public documents and electronic discovery is common in modern legal practice. Few, if any, physical
paper copies will likely be produced in discovery. Moreover, the State has not shown that Austin would be more convenient for the State's witnesses than San Antonio. Witness depositions can be taken anywhere and the Texas Legislature has adjourned sine die. This factor does not favor transfer.
2. Availability ofCompulsory Process to Secure the Attendance of
Witnesses The State failed to provide any evidence regarding this factor. We see no substantial difference between the San Antonio and Austin divisions regarding compulsory process. This factor does not favor transfer.
3. Cost ofAttendance for Willing Witnesses
The State failed to provide any evidence regarding this factor except for a conclusory
statement that "transferring the case to Austin will actually reduce the overall costs of the two cases for all the parties involved." We see no substantial difference in costs for a willing witness in a case litigated in either San Antonio or Austin. They are within 100 miles of each other and
both have major airports. This factor does not favor transfer.
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4. Other Practical Problems That Make Trial of a Case Easy, Expeditious and Inexpensive
The State failed to provide any evidence regarding this factor except for the reference to a pending action in Austin. While consolidation of multiple cases may decrease costs, this is not a motion to consolidate, but a motion to transfer or dismiss. Moreover, there is also no reason to prefer consolidation in Austin over San Antonio. This factor does not favor transfer.
ii. The Private Factors Do Not "Clearly Point Towards Hearing the Case in the Alternative Forum"
The State also fails to show that the private factors "clearly point towards hearing the case in the alternative forum."
1. Administrative DffIculties Flowing from Court Congestion
The State failed to provide any evidence regarding this factor. This factor does not favor transfer.
2. Local Interest in Having Localized Interests Decided at Home
The State failed to provide any evidence regarding this factor. We see no difference in the
localized interest of the residents of San Antonio and Austin. S.B. 4 affects all residents of Texas, not just those in the Texas capital. This factor does not favor transfer.
3. Familiarity ofthe Forum with the Law that will Govern the Case The State failed to provide any evidence regarding this factor. Both the San Antonio and Austin divisions are familiar with the applicable law. This factor does not favor transfer.
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4. Avoidance of Unnecessary Problems of Conflict ofLaws or in the Application ofForeign Law
The State failed to provide any evidence regarding this factor. We are not aware of problems regarding the conflict of laws or the application of foreign law. This factor does not
favor transfer. The State failed to meet its burden to show that the Austin division is "clearly more
convenient" than the San Antonio division. The State failed to provide any evidence that any of the public or private factors "clearly point towards hearing the case in the alternative forum."
We, therefore, respectfully ask the Court to deny Defendants' motion to transfer.
II. In the Alternative, the State's Motion Should Be Stayed
In the alternative, the Court should stay the State's motion pending resolution of the motions to dismiss in Travis County. When the jurisdiction of the first-filed court is uncertain, it is appropriate for the second-filed court to stay the case pending determination of the first-filed court's jurisdiction. See Burger v. Am. Mar. Officers Union, 170 F.3d 184 (5th Cir. 1999); see also W. GulfMar. Ass'n v. ILA Deep Sea Local 24, 5. Atl. & Gulf Coast Dist. ofILA, AFL-CIO, 751 F.2d 721, 729 n. 1(5th Cir. 1985) ("A stay may, for example, be appropriate to permit the court of first filing to rule on a motion to transfer"). Moreover, "where the first-filed action presents a likelihood of dismissal, the second-filed suit should be stayed, rather than dismissed." Ailtrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 629 (9th Cir. 1991); see also Bean v. Alcorta, No. 5:14-CV-604-DAE, 2016 WL 6242346, at *1 (W.D. Tex. Oct. 25, 2016) ("A stay of a pending matter is "within the trial court's wide discretion to control the course of litigation." (quoting In re Ramu Corp., 903 F.2d 312, 318 (5th Cir. 1990))).
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As discussed above, Travis County is likely to be dismissed either voluntarily or by the
court for any number of reasons. Therefore, MALDEF respectfully requests that if this Court
does not deny the State's Motion, then, in the alternative, this Court stay this case pending resolution of the motions to dismiss and motion to transfer in Travis County.
CONCLUSION For the reasons discussed above, MALDEF respectfully requests that the Court deny the State's Motion or, in the alternative, stay proceedings pending resolution of the motions in Travis
County.

DATED: May 31, 2017

Respectfully submitted,
/5/ Nina Perales Nina Perales
Nina Perales SBN: 24005046 MALDEF 110 Broadway, Suite 300 San Antonio, TX 78205 Phone: (210) 224-5476 Fax: 210/224-5382 Email: nperalesmaIdef.org
Attorney for Mexican American Legal Defense and Education Fund

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 Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF SAN ANTONIO TEXAS;

§

REY A. SALDAIITA, in his official capacity §

as San Antonio City Councilmember;

§

TEXAS ASSOCIATION OF CHICANOS §

IN HIGHER EDUCATION; LA UNION §

DEL PUEBLO ENTERO; and WORKERS §

DEFENSE PROJECT,

§

Plaintiffs,

§

§

CITY OF AUSTIN,

§

Plaintiff-Intervenor,

§

§

v.

§

§

THE STATE OF TEXAS; GREG

§

ABBOTT, sued in his official capacity as §

Governor of the State of Texas; KEN

§

PAXTON, sued in his official capacity as §

Attorney General of Texas,

§

Defendants.

§

SA-1 7-CV-00404-OLG
SA-1 7-CV-00459-OLG
CIVIL ACTION NO. 5:17-cv-00489

CITY OF AUSTIN'S COMPLAINT IN INTERVENTION

The City of Austin files the following Complaint in Intervention against the State of Texas

("Texas"), Governor Greg Abbott, and Texas Attorney General Ken Paxton, pursuant to Federal

Rules of Civil Procedure, Rule 24(b).

I. SUMMARY

1. Texas enacted Senate Bill No. 4 (SB 4) to punish cities, counties and college campuses that

provide "sanctuary" to undocumented immigrants. The City seeks intervention to challenge

several unconstitutional aspects of SB 4, seeking declaratory and injunctive relief under the

Supremacy Clause, First Amendment, Due Process Clause and Equal Protection Clause of the U.S.

Constitution and the Due Course of Law and Home Rule provisions of the Texas Constitution.

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2. SB 4 violates the Supremacy Clause by invading the federal government's exclusive authority to regulate the ability of foreign nationals to work, travel, study, invest, trade, and safely reside within the United States. By authorizing local police to subject foreign nationals to status determinations, Texas threatens national economic and diplomatic interests. SB 4 conflicts with federal law by removing local discretion concerning immigration enforcement and by increasing sanctions imposed on immigrant communities beyond those authorized by Congress. 3. Further, SB 4 violates Due Process by imposing a vague regulatory regime on local authorities while threatening draconian penalties for non-compliance. SB 4 violates the First Amendment by penalizing the conduct of local officials who "endorse" a policy that would
contradict SB 4's mandates. SB 4 violates Equal Protection by permitting local police to subject
perceived undocumented immigrants to enhanced interrogation based upon protected traits including race, ethnicity, national origin, and immigration status.
4. SB 4 violates the Texas Constitution's Due Course of Law provision by imposing unduly
burdensome and oppressive harms on local communities while failing to further any legitimate state interest. Finally, SB 4 violates the Texas Constitution's Home Rule guarantee by interfering
with the ability of Austin residents to elect their local representatives and by withdrawing the City's discretion to allocate scarce law enforcement resources and determine the most effective
policies for public health and safety. II. ADDITIONAL PARTIES
5. Intervenor City of Austin is a home-rule city in the State of Texas. The City adopted its original Charter in 1909. In exercise of the City's constitutional authority, the Charter describes
the manner in which local officials, including a Mayor and Council, may be elected and removed from office. The Charter also reserves to the City all constitutional home-rule authority including
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the discretion to allocate resource and determine priorities in furtherance of the welfare, health, morals, comfort, safety, and convenience of the City and its inhabitants.
III. ORIGINAL LAWSUIT 6. Plaintiffs City of San Antonio, et al., filed suit against defendants Texas, Governor Greg Abbott, and Attorney General Ken Paxton, seeking declaratory and injunctive relief to prevent implementation of SB 4. Doe. 1. Plaintiffs allege that SB 4 violates the United States Constitution and other federal constitutional and statutory provisions by invading the field of civil immigration
enforcement, encouraging racial profiling, threatening local municipalities with fines and threatening local officials with removal from office for perceived non-compliance with state and
federal immigration law. Id., ¶J 104-143. Plaintiffs allege that the City of San Antonio, its officials, and its residentsalong with organizational plaintiffs Texas Association of Chicanos in Higher
Education (TACHE), La Union del Pueblo Entero (LUPE), and Workers Defense Projectwill suffer substantial harms if the State is permitted to implement SB 4. Id., ¶J 83-103.
7. As of the time of this filing, no defendants have been served in this case. IV. CITY'S FACTUAL ALLEGATIONS
A. Texas has Enacted a Series of Unconstitutional Laws Targeting Hispanic Residents 8. In recent years, federal courts have ruled on several occasions that the Texas Legislature
has intentionally discriminated against African-American and Hispanic Texans.
9. In Texas v. Us., 887 F.Supp.2d 133 (D.D.C. 2012), a federal court ruled that the State drew Congressional and State Senate districts with discriminatory intent and to the detriment of AfricanAmerican and Hispanic voters. In reaching its conclusion, the court took note of "Texas's history of failures to comply" with the Voting Rights Act. 877 F.Supp.2d at 161.
CI

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10. In Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), the Fifth Circuit held that a voter

identification law enacted by the Texas Legislature and signed by Governor Abbott was racially

discriminatory under the Voting Rights Act. The Court specifically ruled that Texas' history of

racially gerrymandered districts supported a finding of discrimination. 830 F.3d at 257-58.

11. In Perez v. Abbott,

-, F.Supp.3d 2017 WL 1798454 (W.D.Tex. May 2, 2017), a

federal court ruled Texas drew Congressional districts with discriminatory intent and to the

detriment of Hispanic voters.

12. The Texas Legislature has also attempted on multiple occasions to pass laws that would

punish "sanctuary" jurisdictions, including failed bills in 2011 and 2015. As federal courts have

noted, these laws are "racially charged" and target Hispanic Texans. Veasey v. Perry, 71 F.Supp.3d

627, 702 (S.D.Tex. 2014).

B. After Gov. Abbott Stated His Intent to Punish "Sanctuary" Jurisdictions, ICE Conducted Raids to Retaliate Against the Policies of Local Elected Officials

13. On January 20, 2017, Travis County Sheriff Sally Hernandez announced that beginning

February 1, 2017, her office would only comply with civil detainer requests from Immigration and
Customs Enforcement (ICE) if those requests are supported by a warrant or if those requests

concern people alleged to have committed certain serious crimes, and that she would otherwise

decline to fulfill ICE requests that are not backed by probable cause.

14. Immediately thereafter, Governor Greg Abbott announced that he would withhold grant

funding for Travis County in retaliation for Sheriff Hernandez's public statements. Ultimately,

Texas denied Travis County $1.5 million in previously awarded funds that would have supported

programs for foster youth, veterans, and other at-risk communities.

15. On January 31, 2017, at the beginning of the Texas legislative session, Governor Abbott made the punishment of "sanctuary" jurisdictions one of his top priorities. He complained that the

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 5 of 18
federal government was not preventing undocumented immigrants from crossing the border and claimed that some law enforcement officials "are openly refusing to enforce existing law." He then announced that "this is the session we will ban sanctuary cities." 16. On February 2, 2017, Gov. Abbott announced via social media that "Texas will hammer
Travis County" because of its perceived "sanctuary" policies.
17. On or about February 6, 2017, Gov. Abbott again announced that he would "hammer" the
City of Austin and Travis County. At an appearance on a radio talk show, Gov. Abbott stated: I'm putting the hammer down. This is offensive what is going on in Austin, Texas. It's actually the county, which is Travis County, which is the county seat ofAustin,
Texas. Travis County has declared what I call "sanctuary city policies." They are
no longer going to hold for ICE detainers, certain criminalswho are, in fact, criminalsthey've been arrested before for very serious crimes. As part ofhis comments, Gov. Abbott threatened to send public officials to jailincluding sheriffs
and mayorsif they fail to comply with civil detainer requests.
18. Between February 9 and February 12, 2017, ICE began a series of raids that sent waves of
terror through immigrant communities in Austin and across Central Texas. In the Austin and San
Antonio areas, ICE conducted several dozen arrests, the majority of which concerned individuals
who had committed no criminal offense. 19. On or about March 20, 2017, during a hearing in the United States District Court for the
Western District of Texas, in the matter of US. v. Coronilla-Guerrero, Case No. 1:17-CR-132-
LY, U.S. Magistrate Judge Andrew W. Austin stated in open court to an ICE official: There's been questions about whether Austin's being targeted. We had a briefing that your immediate supervisor, I guess, Agent Shaffer, came and briefed me and the magistrate judge, Judge Lane, at the very end of January that we could expect a
big operation, agents coming in from out of town. There was going to be a specific operation, and it was at least related to us in that meeting that it was a result of the sheriffs new policy that this was going to happen.
5

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 6 of 18
20. The "new policy" referred to by Judge Austin was Travis County's adoption of a policy of
not fulfilling certain civil immigration detainer requests.
C. SB 4 Increases Immigration Enforcement and Threatens to Penalize Municipalities and Policymakers Who Decline to Follow the State's Unconstitutional Demands
21. Gov. Abbott signed SB 4 into law on May 7, 2017. SB 4 is effective September 1, 2017.
22. SB 4 changes the obligations of municipalities in regard to civil immigration law. Under
federal immigration law 8 U.S.C. § 1357, local authorities maintain discretion whether to fulfill civil detainer requests, and whether they cooperate with ICE by entering written agreements.
Under 8 U.S.C. § 1373, local authorities maintain discretion regarding what type of immigration status information to collect, if any.
23. Under SB 4, local authorities must permit their officers to investigate the immigration status of every person who is lawfully detained or arrested, except in limited situations. Any person in custody must produce a Texas driver's license or "similar government-issued identification" in
order to avoid extended detention for purposes of an immigration status check.
24. Also under SB 4, local authorities must permit their officers to assist or cooperate with federal immigration enforcement activities as is "reasonable or necessary." 25. SB 4 prohibits any municipality or local official from adopting, enforcing, or endorsing any policy that would prohibit or limit the enforcement of federal immigration law.
26. If a municipality does not comply with SB 4, it may be subject to fines up to $25,500 for each day ofnoncompliance after the first day. The State may bring an action to impose these fines if any officer or employee ofthe municipality fails to comply with SB 4. 27. If a police chief or sheriff refuses to comply with SB 4 by failing to honor a detainer
request, he or she is subject to criminal prosecution for a Class A misdemeanor.

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 7 of 18
4for 28. If a local official holding elective or appointive office refuses to comply with SB
example, by endorsing a policy that would limit the enforcement of federal immigration lawhe
or she will be subjected to a quo warranto proceeding resulting in removal from office.
D. The City of Austin is a "Welcoming City"; Local Officials Have Publicly Expressed their Support for Immigrant Communities and their Opposition to SB 4
29. On multiple occasions, the City's Mayor and City Council have adopted resolutions expressing the City's intent to be a "Welcoming City" for immigrants and all communities, regardless of race, religion, ethnicity, status, or national origin. In support of this objective, the City provides social services and other support to local immigrant communities, without regard to perceived immigration status. 30. Upon introduction of SB 4, multiple elected officials at the City publicly expressed their opposition to SB 4 and its likely negative impact on the local community. For example, Mayor Steve Adler has made public statements emphasizing that SB 4 will have a negative impact on public safety and will drain scarce public resources by authorizing City police officers to conduct civil immigration investigations. Council Member Greg Casar, whose district includes many residents who were born outside of the United States, has participated in demonstrations against SB 4 and has given local and national media interviews highlighting the potential harms of this new law. Council Member Delia Garza has publicly spoken about the threat of racial profiling under SB 4, and how the law gives no guidance as to how local police should decide when to conduct a status determination. And Council Member Pio Renteria gave public testimony describing how the combined effects of SB 4 and recent ICE raids have led to immigrant communities avoiding public settings, including attendance at his church.
7

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 8 of 18
E. Gov. Abbott Reiterated His Intent to Punish "Sanctuary" Cities and Discourage Immigration Across the Texas Border
31. When Gov. Abbott signed SB 4, his office issued a statement that the law would ban sanctuary cities in Texas.
32. On May 8, 2017, Gov. Abbott gave a televised interview on Fox & Friends. He emphasized
that SB 4 focuses on immigration across the Texas border, saying: The people who are coming into the United States, especially across the border in
Texas, are coming not just from Mexico. In fact, most of the people coming across
the border in Texas are not from Mexico. They are from people [sic] around the
entire globe. So this has nothing to do with those who are Hispanics....
F. Most Immigrants Who Cross the Texas Border are of Hispanic Descent 33. According to Pew Research Center, Mexican citizens make up one-half of the population of undocumented immigrants in the United States. An additional one-quarter of undocumented
immigrants are Hispanic peoples from Central America, South America, and the Caribbean. In all,
as many as three-quarters of all undocumented immigrants are from Hispanic nations. 34. The Department of Homeland Security (DHS) reports that the vast majority of undocumented immigrants captured while crossing the southern border of the United States are from Mexico and Central America. In 2014, over 96% of persons apprehended by DHS came from Mexico, Guatemala, Honduras or El Salvador. In 2016, over 94% of persons apprehended came
from the same four countries.
G. Many Residents and Visitors are in Texas Lawfully But Cannot Produce the Forms of Identification Required by SB 4
35. SB 4 requires proof of lawful immigration status as shown by a Texas driver's license "or
similar government-issued identification" to avoid extended detention. Unfortunately, many residents and visitors are present in Texas lawfully but do not have government-issued identification.
8

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 9 of 18
36. Persons lawfully present in the United States range from citizens to tourists. United States citizens are not required to carry identification to prove their status, despite the possibility that a
citizen may appear to be a foreign national in the eyes of a local police officer. Some United States citizens are not even aware of their status, given that they may have derived citizenship from other
family members. 37. Many students, professionals, and migrant workers, among others, are lawfully present within the United States but are not issued government identification. In some cases, the
documentation indicating their status consists of passport stamps, receipts from the State
Department, or court records from an immigration proceeding. 38. Under SB 4, local police officers without sufficient training or resources will be permitted
to subject lawfully present individuals to extended detention for purposes of a status check, in violation of state, federal, and international law. SB 4 goes so far as to incentivize local
immigration enforcementeven if such enforcement is in violation of the lawby offering grants
and indemnity to compliant jurisdictions.
H. SB 4 Will Negatively Impacts Trade, Tourism, Investment, and International Relations 1. SB 4 impacts trade and related treaty obligations.
39. Texas and the City of Austin benefit tremendously from trade with Mexico and other
nations in Central America, South America, and the Caribbean. 40. The United States has entered into multiple treaties that affect its relations with Mexico and other nations in Central America, South America, and the Caribbean. 41. Among relevant treaties, the North American Free Trade Agreement (NAFTA) provides
for the free passage of business professionals across borders. Pursuant to this treaty, the United
States is required to provide temporary entry to foreign nationals from Canada and Mexico.

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 10 of 18
42. Canadian and Mexican citizens who enter this country under temporary entry provisions
of these treaties will not have government identification indicating their lawful presence.
43. Under SB 4, foreign nationals working in the United States under trade treaties will be subject to increased status checks and status determinations, and will be exposed to increased risk
of detention, arrest, and other deprivations. 44. Depending on how SB 4 impacts police treatment of foreign nationals, Texas' action in
promulgating SB 4 may cause the United States to violate its treaty obligations. 2. SB 4 impacts tourism in the United States.
45. Texas and the City of Austin benefit from tourist visits from foreign nationals. The City
holds multiple events with international participation each year, including the South by Southwest
festival, the Circuit of the Americas Fl racing events, and other events focused on culture, business
and technology. These events generate substantial income for the local, regional, and national economies. 46. In a similar context, Arizona passed Senate Bill 1070 in 2010, seeking to require state police to participate in enhanced immigration enforcement activities. Although the Supreme Court
ultimately struck down several aspects of the law, and the State later agreed to not enforce other problematic portions, an international boycott of the Stateincluding decisions by national
organizations to not conduct major conventions in the statecaused Arizona to suffer hundreds of millions of dollars in direct and indirect losses.
47. More recently, the State of North Carolina suffered an economic boycott after its legislature adopted a law discriminating against transgender individuals. Major national organizations withdrew events from the state, including the National Basketball Association All-Star Game and the National Collegiate Athletic Association Final Four Men's Basketball Tournament. In addition
10

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 11 of 18
to hundreds ofmillions ofdollars in lost event revenue, the Associated Press estimated the boycott
caused the state to lose new business including a PayPal facility that would have added an estimated $2.66 billion to the state's economy.
48. Several national organizations have already threatened a boycott of Texas based upon the State's threatened implementation of SB 4. Such a boycott would likely cause substantial damage
to local, state, and national economies.
49. Further, the implementation of SB 4 will discourage tourism by foreign nationals who fear
they will be subject to enhanced immigration enforcement measures.
3. SB 4 impacts international investment in the United States. 50. Texas and the City of Austin benefit from investment by foreign nationals. Foreign
nationals invest in local businesses, buy land, participate in educational programs, and generally contribute to the short-term and long-term growth of the local, state and national economies.
51. Implementation of SB 4 will discourage investment by foreign nationals who fear they will
be subject to enhanced immigration enforcement measures.
I. SB 4 Negatively Impacts Local Communities 52. The passage of SB 4, together with ICE raids conducted in retaliation for local "sanctuary" policies, has already imposed a severe detrimental impact on the local community. 53. In recent months, the Austin Police Department has encountered crime victims, or close relatives of crime victims, who are unwilling to engage in the criminal justice system out of fear that they or their close relatives will be at increased risk of immigration enforcement and deportation. 54. At the Austin Independent School District, students have missed class due to fears that ICE agents will capture undocumented residents on the way to or from school.
11

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 12 of 18
55. Across the City, community organizations that provide for the needs of immigrant
communities find themselves assisting families that are afraid to leave their homes, making grocery runs to ensure children have diapers and milk. Organizations that serve Hispanic clients report a sharp drop in people showing up for services. Because residents are declining to access preventative care resources, they are more likely to access emergency room services when they become sick, which will impose an increased burden on local and regional health care providers.
56. The result of the threatened implementation of SB 4 has been a breakdown in public trust,
as affected individuals feel they cannot contact municipal and nongovernmental agencies for fear
of immigration enforcement. 57. In addition, if implemented, SB 4 would dramatically alter the allocation of Austin Police
Department resources by requiring officers to determine whether any person held in custody is
subject to a request from ICE. In addition, SB 4 would require the Chief of Police to permit City officers to conduct other civil immigration investigations, and would require the Chief to permit
City officers to participate in ICE raids and other activities. All told, these requirements would
cost the City millions of dollars and would prevent the City from pursuing other law enforcement priorities, including the investigation and prosecution of serious crimes.
V. CAUSES OF ACTION FIRST CAUSE OF ACTION: PREEMPTION 58. The City hereby incorporates by reference the preceding paragraphs 1 through 57. 59. SB 4 violates the Supremacy Clause of the United States Constitution by subjecting individuals and municipal agencies to expansive and coercive civil immigration regulations in areas already subject to federal regulation. The United States government has exclusive authority over the field of inmiigration, and SB 4 invades authority expressly reserved to Congress and the
12

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 13 of 18
President. Further, SB 4 directly conflicts with multiple laws and regulations promulgated by Congress, the President, and the Department of Homeland Security.
60. The President of the United States has inherent authority to conduct foreign affairs. By enacting SB 4, Texas has unconstitutionally invaded the President's authority by subjecting foreign nationals to increased risk of detention, arrest, harassment, and abuse, which impact the reciprocal treatment of United States citizens abroad. SB 4 will deter foreign investment, trade, and tourism in the State of Texas, which will have a detrimental impact on national interests. 61. The President of the United States recently enacted regulations on the exact same subject
matter as SB 4, to wit: Executive Order 13768, purporting to define and penalize "sanctuary
jurisdictions." In recent court filings and guidance memoranda, the Department of Justice has confirmed that a city such as Austin may be punished as an impermissible "sanctuary" only if it fails to comply with existing federal immigration law and, in particular, 8 U.S.C. § 1373. Austin is complying with federal immigration law and Section 1373 and is therefore not a "sanctuary"
under the federal definition. Because SB 4 would penalize Austin even if it complies with existing
law, SB 4 violates the Supremacy Clause by conflicting with Executive Branch policies. 62. Congress has enacted a comprehensive regulatory scheme to monitor the status of immigrants to the United States and determine when a person's status is unlawful. SB 4 violates the Supremacy Clause by invading the field of immigration status checks and status determinations, areas that Congress has explicitly regulated. SB 4 also directly conflicts with federal laws and regulations that describe how the government shall determine lawful presence. 63. SB 4 also violates the Supremacy Clause by impacting commerce with foreign nations, an
area of regulation expressly reserved to Congress by the United States Constitution. SB 4 will deter foreign nations from conducting trade with Texas, for fear of exposing their citizens to enhanced
13

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 14 of 18
immigration enforcement activities, thus resulting in a substantial negative impact on trade between the United States and Mexico, Central America, South America, and beyond. 64. Finally, SB 4 violates the Supremacy Clause by increasing the sanctions imposed on immigrants and those who appear to be immigrants, even though Congress has already adopted a carefully calibrated immigration status enforcement program. Specifically, SB 4 calls for local police to enforce civil immigration laws by conducting status checks and status determinations,
which will result in increased regulation of immigrants and those who appear to be immigrants.
Inevitably, this increased regulation will result in increased detentions, arrests, and potential
violations of civil liberties. SB 4 also penalizes elected officials in jurisdictions that decline to
adopt enhanced civil immigration enforcement activities, which will result in the disenfranchisement of voters in "sanctuary" jurisdictions. Finally, SB 4 penalizes the municipalities themselves by imposing fines on "sanctuary" jurisdictions, thus resulting in an
unjustified waste of public resources. In the aggregate and in isolation, these new immigration regulations conflict with existing federal law concerning the determination of lawful presence.
SECOND CAUSE OF ACTION: VOID FOR VAGUENESS 65. The City hereby incorporates by reference the preceding paragraphs 1 through 64. 66. SB 4 violates the Due Process Clause of the 14th Amendment by failing to define a violation of the statute with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. On one hand, SB 4 purports to enforce existing immigration law; on the other, it attempts to make discretionary decisionsconcerning civil detainers, data collection, and cooperation with ICE operationsmandatory requirements. SB 4 would punish any local official who "endorses" a "sanctuary" policy while adopting a definition of "sanctuary" that conflicts with
14

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 15 of 18
the federal government's stated position. The law threatens penalties for "limiting" immigration enforcement without providing a manageable standard. SB 4 imposes criminal penalties on police chiefs and sheriffs who knowingly fail to comply with immigration detainer requests for persons in their "custody." SB 4 fails to define the term 'custody' and may hold law enforcement chiefs
liable if they release a person based on a reasonable belief they have provided adequate proof of
citizenship or lawful immigration status. Finally, SB 4 fails to identify any constitutional manner in which local police can decide whether or not to check the status of detainees or arrestees.
THIRD CAUSE OF ACTION: FIRST AMENDMENT 67. The City hereby incorporates by reference the preceding paragraphs 1 through 66. 68. SB 4 violates the First Amendment by penalizing the protected speech of local officials who "endorse" a policy that would contradict SB 4 mandates. Under federal law, any statute restricting protected speech is deemed to be overbroad and invalid in all of its applications.
FOURTH CAUSE OF ACTION: EQUAL PROTECTION 69. The City hereby incorporates by reference the preceding paragraphs 1 through 68. 70. SB 4 is part of a pattern and practice of unconstitutional laws promulgated by Texas,
including at least six laws that, according to federal courts have discriminated against Hispanic
Texas residents in violation of the Equal Protection Clause of the United States Constitution. Just
as federal courts found that Texas drew congressional districts and legislative districts with the
specific intent of disenfranchising Hispanic voters, and just as a federal court found that Texas created "voter ID" requirements with the specific intent of disenfranchising Hispanic voters and voters from other protected classes, Texas promulgated SB 4 with the specific intent of terrorizing Hispanic residents of Texas and depriving such residents of their civil liberties.
15

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 16 of 18
71. SB 4 grants license to police to engage in unconstitutional investigative practices, including profiling based upon race, ethnicity, national origin, and perceived status. Further, because law
fails to present any cognizable guidelines for enforcement of suspected civil immigration violations, the State's "savings clause" is illusory. The law cannot be constitutionally applied and
should be enjoined in its entirety.
FIFTH CAUSE OF ACTION: DUE COURSE OF LAW 72. The City hereby incorporates by reference the preceding paragraphs 1 through 71. 73. SB 4 violates the Due Course of Law provision contained within the Bill of Rights of the Texas Constitution, as well as substantive due process rights protected by the Fourteenth Amendment of the United States Constitution, by arbitrarily imposing unduly burdensome and oppressive harms on the City of Austin, its officials and its residents, and by substantially restricting protected conduct including freedoms of expression, association, and travel. SB 4 is not rationally related to a legitimate governmental interest because civil immigration enforcement is an entirely federal function. In addition, the statute's actual, real world effect is not rationally related to, and is excessively burdensome as to be oppressive in light of the minimal state
governmental interest.
74. The City of Austin has standing to challenge the constitutionality of SB 4 under the Due Course of Law provision because the City is charged with implementing a statute that it believes
is unconstitutional. SIXTH CAUSE OF ACTION: HOME RULE
75. The City hereby incorporates by reference the preceding paragraphs 1 through 74.
76. The City of Austin is a home-rule City as defined by the Texas Constitution, Article 11,
Section 5. Pursuant to the Texas Constitution, the City adopted a Charter that asserts the full power
16

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 17 of 18
of self-government, including the power to determine how local officials may be elected and
removed from office and the power to promote the welfare, health, morals, comfort, safety, and
convenience of the City and its inhabitants. 77. SB 4 violates the Home Rule provision of the Texas Constitution authority by denying the City the power of self-govermnent, including the right to elect and remove local officials and the right to determine for itself how to exercise its police power. The People of Texas did not grant the Legislature any authority to regulate the immigration status of foreign nationals and to the
extent that SB 4 seeks to regulate the manner in which the City provides for the public health and
safety of all of its residents and visitors, including foreign nationals, the law is unconstitutional. VI. COMMON QUESTIONS OF LAW AND FACT
78. The City's claims, enumerated above, arise from common questions of fact and law asserted by plaintiff City of San Antonio in their suit seeking to invalidate SB 4 on constitutional grounds. Common questions of law include the extent to which SB 4 intrudes on federal authority to regulate the status of foreign nationals within the United States' borders; the extent to which SB 4 is vague; and the extent to which SB 4 impedes the protected First Amendment conduct of local officials. Common questions of fact include the manner in which SB 4 will impact local law
enforcement activities and how SB 4 will negatively harm local communities.
PRAYER The City seeks the following relief: A. A declaration that SB 4 is unconstitutional; B. A preliminary and permanent injunction barring Texas from enforcing SB 4; C. Any further relief that the Court deems fit and proper.
17

Case 5:17-cv-00404-OLG Document 37 Filed 06/12/17 Page 18 of 18
Respectfully submitted, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel
MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys
City of Austin Law Department P. 0. Box 1546
Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel(áaustintexas. gov christopher.conpo1a(âaustintexas.gov
ATTORNEYS FOR PLAINTIFF INTERVENOR CITY OF AUSTIN
18

 
 Case 5:17-cv-00404-OLG Document 24 Filed 06/05/17 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L.

:

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct. 3-1 Mario A. Hernandez, and League of :

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In

:

His Official Capacity), and Texas Attorney

:

General Ken Paxton (In His Official

:

Capacity)

:

:

Defendants.

:

-------------------------------------------------------------

APPLICATION FOR PRELIMINARY INJUNCTION

Plaintiffs hereby apply to the Court for a preliminary injunction enjoining all Defendants

from enforcing Texas Senate Bill 4 (“SB 4”). The application is made on the basis of

declarations and Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction

filed herewith.

As set forth in detail in the Memorandum, Plaintiffs have established that they are likely

to succeed on the merits of their claims that SB 4 violates the Constitution; that Plaintiffs will

suffer irreparable harm if the Court does not enjoin SB 4; that the Defendants will suffer no harm

if the Court preserves the status quo pending adjudication of this matter on the merits; that the

balance of hardships tips strongly in Plaintiffs’ favor; and that a preliminary injunction in this

case advances the public interest.

1

Case 5:17-cv-00404-OLG Document 24 Filed 06/05/17 Page 2 of 3

For these reasons and the reasons detailed in the accompanying Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction, Plaintiffs respectfully request that the Court grant their Application.

Dated: June 5, 2017

Respectfully Submitted,

Lee Gelernt Omar C. Jadwat Andre I. Segura Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org
Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Cecillia D. Wang Cody H. Wofsy Stephen Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org

*Pro Hac Vice Forthcoming

Attorneys for the Plaintiffs
2

Case 5:17-cv-00404-OLG Document 24 Filed 06/05/17 Page 3 of 3

CERTIFICATE OF SERVICE

I, Luis Vera, Jr., hereby certify that on June 5, 2017 copies of this Application for Preliminary Injunction were electronically filed via the Court’s CM/ECF system.

Dated: June 5, 2017

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net

Case 5:17-cv-00404-OLG Document 24-1 Filed 06/05/17 Page 1 of 53

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L.

:

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct. 3-1 Mario A. Hernandez, and League of :

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In

:

His Official Capacity), and Texas Attorney

:

General Ken Paxton (In His Official

:

Capacity)

:

:

Defendants.

:

-------------------------------------------------------------

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 24-1 Filed 06/05/17 Page 2 of 53
TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iii INTRODUCTION......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 2
A. SB 4’s Effect On Plaintiffs ........................................................................................... 2 B. Cooperation Between the Federal Government and Local Law Enforcement ............. 4 C. Senate Bill 4 .................................................................................................................. 8
1. The Sanctuary Provisions ..................................................................................................... 9 2. The Detainer Mandate ........................................................................................................ 10 STANDARD OF REVIEW ........................................................................................................ 12 ARGUMENT............................................................................................................................... 12 I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS. ................................... 12 A. SB 4 Is Preempted By Federal Immigration Law. ...................................................... 13 1. SB 4 Generally Conflicts with the Federal Scheme For Cooperative Enforcement........... 13 2. The Detainer Mandate Impermissibly Relies on Local Determinations of
Immigration Status............................................................................................................ 19 B. SB 4 is Unconstitutionally Vague. .............................................................................. 20
1. SB 4 Is Subject to Heightened Vagueness Scrutiny Because It Impacts Constitutional Rights and Is Both a Criminal and Quasi-Criminal Statute. ............................................. 21
2. SB 4’s Anti-Sanctuary Provisions Are Unconstitutionally Vague. ................................... 22 3. The Detainer Mandate Is Unconstitutionally Vague......................................................... 27 C. SB 4’s Prohibition Of “Endorsement” Violates The First Amendment...................... 28 1. The Endorsement Ban is Unconstitutional Viewpoint Discrimination. ............................. 28 2. The Endorsement Ban Is Also Unconstitutionally Vague.................................................. 30
i

Case 5:17-cv-00404-OLG Document 24-1 Filed 06/05/17 Page 3 of 53 D. SB 4’s Detainer Mandate Violates The Fourth Amendment. ..................................... 30 E. SB 4 Violates Equal Protection................................................................................... 34 F. SB 4 Has Serious Implications For Voting Rights And Tenth Amendment
Principles..................................................................................................................... 38 II. SB 4 Will Cause Irreparable Harm to Plaintiffs. .............................................................. 41 III. The Balance of Hardships And The Public Interest Favor A Preliminary Injunction. ..... 42 CONCLUSION ........................................................................................................................... 42
ii

Case 5:17-cv-00404-OLG Document 24-1 Filed 06/05/17 Page 4 of 53
TABLE OF AUTHORITIES
Cases
Arizona v. United States, 132 S. Ct. 2492 (2012) ...................................................................................................... passim
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................................................................................................................. 30
Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2001) ................................................................................................................. 16
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) ....................................................................................................... 33, 34
Colautti v. Franklin, 439 U.S. 379 (1979) ................................................................................................................. 22
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) .......................................................................................................... passim
Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991) ................................................................................................................... 32
Dunn v. Blumstein, 405 U.S. 330 (1972) ................................................................................................................. 38
Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................................................. 41
Ford Motor Co. v. Texas Dep't of Transp., 264 F.3d 493 (5th Cir. 2001).................................................................................................... 21
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010) ................................................................................................................. 34
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014)..................................................................................................... 14
Garcetti v. Ceballos, 547 U.S 410 (2006) .................................................................................................................. 30
Gerstein v. Pugh, 420 U.S. 103 (1975) ................................................................................................................. 34
Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................................................. 38
Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966) ................................................................................................................. 38
Hernandez v. Texas, 347 U.S. 475 (1954) ................................................................................................................. 36
Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).................................................................................................... 30
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Hunter v. Erickson, 393 U.S. 385 (1969) ........................................................................................................... 37, 38
Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (5th Cir. 1979).................................................................................................... 23
Jenevein v. Willing, 493 F. 3d 551 (5th Cir. 2007)................................................................................................... 29
Kramer v. Price, 712 F.2d 174, 178 (5th Cir. 1983), vacated as moot after repeal of challenged statute, 273 F.2d 1164 (5th Cir. 1984) ................................................................................................. 23
LULAC v. Perry, 548 U.S. 399 (2006) ................................................................................................................. 36
Maryland v. Pringle, 540 U.S. 366 (2003). ................................................................................................................ 33
Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013).............................................................................. 6, 34, 36
Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017)............................................................................ 31
Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014) .................................. 31, 32
Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015) .................................................................................................... 31
Morales v. Chadbourne, No. 12-301-M-LDA, 2017 WL 354292 (D.R.I. Jan. 24, 2017) ................................................ 31
Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016) ................................................................................. 31, 32
Nat’l Fed. of Indep. Business v. Sebelius, 132 S. Ct. 2566 (2012) ............................................................................................................. 39
New York Times v. Sullivan, 376 U.S. 254 (1964) ................................................................................................................. 28
New York v. United States, 505 U.S. 144 (1992) ........................................................................................................... 39, 40
Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82 (5th Cir. 1992)...................................................................................................... 42
Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012).................................................................................................... 41
Orellana v. Nobles Cty., 2017 WL 72397 (D. Minn. Jan. 6, 2017) ................................................................................. 31
Padilla v. Kentucky, 559 U.S. 356 (2010) ................................................................................................................... 5
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Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. Unit B Feb. 1981) ................................................................................. 12
Printz v. United States, 521 U.S. 898 (1997) ..................................................................................................... 18, 39, 40
Reitman v. Mulkey, 387 U.S. 369 (1967) ........................................................................................................... 36, 38
Republican Party of Minn. v. White, 536 U.S. 765 (2002) .................................................................................................................. 29
Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................................................................. 38
Romer v. Evans, 517 U.S. 620 (1996) ........................................................................................................... 37, 38
Roy v. Cty. of Los Angeles, 114 F. Supp. 3d 1030 (C.D. Cal. 2015).................................................................................... 32
Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014) (plurality opinion)................................................................... 35, 36, 37
Screws v. United States, 325 U.S. 91 (1945) ................................................................................................................... 22
Texas v. Travis County, et al., 1:17-cv-00425 (W.D. Tex. May 7, 2017) ................................................................................ 26
Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) ................................................................................................................. 29
United States v. Stevens, 559 U.S. 460 (2010) ................................................................................................................. 29
Veasey v. Perry, 71 F.Supp. 3d 627 660 (S.D. Tex 204), aff’d in part, vacated in part, rev’d in part on other grounds, Veasey v. Abbott, 832 F.3d 216 (5th Cir. 2016) .................................................. 28, 32
Vill. of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) ................................................................................................................. 21
Villas at Parkside Partners v. City of Farmer’s Branch, 726 F.3d 524 (5th Cir. 2013) (en banc plurality) ................................................... 13, 16, 19, 20
Vision Ctr. v. Opticks, Inc., 596 F.2d 111 (5th Cir. 1979)..................................................................................................... 12
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ........................................................................................................... 35, 38
Women's Me.l Ctr. of Nw. Houston v. Bell, 248 F.3d 411 (5th Cir. 2001).............................................................................................. 21, 27
Wood v. Georgia, 370 U.S. 375 (1962) ................................................................................................................. 29
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Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................................................................................................................. 38
Federal Statutes and Regulations
8 C.F.R. § 208.7, 8 C.F.R. § 274a.12(c)(8) ............................................................................................................... 27 8 C.F.R. § 287.7(e).......................................................................................................................... 6 8 U.S.C. § 1101(1)(15)(U) .............................................................................................................. 4 8 U.S.C. § 1101(1)(15)(T) ............................................................................................................ 14 8 U.S.C. § 1103(a)(10).............................................................................................................. 4, 14 8 U.S.C. § 1103(a)(11)(B), (c) ........................................................................................................ 4 8 U.S.C. § 1158(d)(2) ................................................................................................................... 27 8 U.S.C. § 1226(d)(1)(B) ................................................................................................................ 4 8 U.S.C. § 1231(i) ......................................................................................................................... 14 8 U.S.C. § 1252(c) ........................................................................................................................ 14 8 U.S.C. § 1255............................................................................................................................. 27 8 U.S.C. § 1324(c) .......................................................................................................................... 4 8 U.S.C. § 1357(a)(2).................................................................................................................... 31 8 U.S.C. § 1357(d) .................................................................................................................... 4, 14 8 U.S.C. § 1357(f)(2) ...................................................................................................................... 4 8 U.S.C. § 1357(g)(1) ........................................................................................................... 4, 5, 14 8 U.S.C. § 1357(g)(1)-(8) ............................................................................................................. 14 8 U.S.C. § 1357(g)(10) ................................................................................................................. 14 8 U.S.C. § 1357(g)(10)(B) .............................................................................................................. 4 8 U.S.C. § 1357(g)(9) ............................................................................................................... 4, 14 8 U.S.C. § 1373(a) ........................................................................................................................ 14 8 U.S.C. § 1373(b) .................................................................................................................... 4, 14 8 U.S.C. § 1373(c) .......................................................................................................................... 4 8 U.S.C. § 1522(c)(1)(C) ................................................................................................................ 4
Other Federal Authorities
CLEAR Act of 2003, H.R. 2671, 108th Cong. § 105 (2003) ........................................................ 16 CLEAR Act of 2015, H.R. 2964, 114th Cong. § 5 (2015) ........................................................... 16 Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (as passed by House on
July 23, 2015)............................................................................................................................ 16 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, §§ 401-51, 110 Stat. 2105, 2260-77 (1996)........................................................ 26 SAFE Act, H.R. 2278, 113th Cong. § 114 (2013) ........................................................................ 16 Stop Sanctuary Policies and Protect America Act, S. 2146, 114th Cong. (2015) ........................ 16 U.S. Const. art. I, § 8, cl. 4.............................................................................................................. 4
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U.S. Const. art. VI......................................................................................................................... 33 State Authorities
Tex. Code Crim. Proc. art. 2.13(d) ............................................................................................... 10 Tex. Code Crim. Proc. art. 2.13(e)................................................................................................ 10 Tex. Code Crim. Proc. art. 2.251 .................................................................................................. 16 Tex. Code Crim. Proc. art. 2.251(a)............................................................................ 10, 19, 20, 30 Tex. Code Crim. Proc. art. 2.251(b) ........................................................................... 10, 19, 20, 27 Tex. Code Crim. Proc. art. 2.251(a)(1) ................................................................................... 11, 40 Tex. Const. art. 16, § 1(a) ............................................................................................................. 33 Texas Gov't Code § 752.051(2) .................................................................................................... 25 Texas Gov’t Code § 752.051(5)...................................................................................................... 8 Texas Govt' Code § 752.051(6) ...................................................................................................... 9 Tex. Gov’t Code § 752.053(a)(1) .......................................................................................... passim Tex. Gov’t Code § 752.053(a)(2) .......................................................................................... passim Texas Gov't Code 752.053(b) ....................................................................................................... 23 Texas Gov’t Code § 752.053(b)(1) ................................................................................... 10, 16, 17 Texas Govt' Code § 752.053(b)(2) ............................................................................................... 10 Texas Gov't Code § 752.053(b)(3) ....................................................................... 10, 16, 22, 24, 33 Texas Gov't Code § 752.053(b)(4) ......................................................................................... 10, 16 Texas Gov’t Code § 752.053(a)(3) ............................................................................................... 16 Texas Gov't Code § 752.054......................................................................................................... 36 Tex. Gov’t Code § 752.056..................................................................................................... 11, 21 Tex. Gov’t Code § 752.056(a) ...................................................................................................... 22 Tex. Gov’t Code § 752.056(a)(1) ................................................................................................. 21 Texas Govt' Code § 752.056(b) .................................................................................................... 10 Texas Gov’t Code § 752.0565 .................................................................................................. 9, 10 Tex. Gov’t Code § 752.0565(a) .................................................................................................... 33 Tex. Gov’t Code § 772.0073(a)(2) ............................................................................................... 10 Tex. Loc. Gov’t Code § 87.031(c) ................................................................................................ 11 Texas Penal Code § 12.21....................................................................................................... 11, 19 Tex. Penal Code § 39.07 ........................................................................................................ passim
Other Authorities
Am. Immigration Lawyers Ass’n, Immigration and Customs Enforcement’s Detainer Program Operates Unlawfully Despite Nominal Changes 3-4 (2017)..................................... 32
Art Acevedo & James McLaughlin, Police Chiefs: SB 4 Is a “Lose-Lose’ for Texas, THE HOUSTON CHRONICLE (Apr. 30, 2017)........................................................................................ 4
Danyelle Solomon et al., The Negative Consequences of Entangling Local Policing and Immigration Enforcement, Ctr. for Am. Progress, Mar. 21, 2017, available at
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https://www.americanprogress.org/issues/immigration/reports/2017/03/21/428776/negativeconsequences-entangling-local-policing-immigration-enforcement/.......................................... 6 Dep’t of Homeland Sec., Office of the Inspector Gen., The Performance of 287(g) Agreements, OIG-10-63 (2010) ..................................................................................................................... 34 Edward F. Ramos, Fiscal Impact Analysis of Miami-Dade’s Policy on “Immigration Detainers,” available at https://immigrantjustice.org/sites/immigrantjustice.org/files/Miami%20Dade%20Detainers-Fiscal%20Impact%20Analysis%20with%20Exhibits.pdf .......................................................... 6 Gustavo Valdes & Thom Patterson, Feds Accuse North Carolina Sheriff’s Office of Racial Profiling, CNN (Sept. 20, 2012), http://www.cnn.com/2012/09/20/justice/north-carolinajustice-immigration/ .................................................................................................................. 35 Michael Barajas, Texas’ Big-City Police Chiefs Hate The “Sanctuary Cities” Bill, SAN ANTONIO CURRENT (May 1, 2017).............................................................................................................. 6 Suzanne Gamboa, ACLU: Tucson Traffic Stops for Immigration Checks Violating Rights .......... 6 Syracuse Univ., Trans. Records Access Clearinghouse, Few ICE Detainers Target Serious Criminals, Sept. 17, 2013.......................................................................................................... 11 Trevor Gardner II & Aarti Kohli, Warren Institute, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program (2009), available at https://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf ........................................ 6 U.S. Immigration & Customs Enforcement, Policy Number 10074.2, Mar. 24, 2017................. 32 Webster’s Third New Int'l Dictionary 749 (1981)........................................................................ 28
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INTRODUCTION Plaintiffs are the Texas State League of United Latin American Citizens (“Texas LULAC”) and its members, the City of El Cenizo, the City’s Mayor, Maverick County and elected officials of Maverick County, including its Sheriff and Constable. They respectfully seek a preliminary injunction of Texas Senate Bill 4 (“SB 4”) because the law is patently unconstitutional on numerous grounds and the balance of harms strongly militates in favor of preserving the status quo. The public interest also weighs heavily in favor of an injunction to prevent the law from going into effect on September 1, 2017. SB 4 is an extraordinary intrusion on Plaintiffs’ ability to govern the City and County in the manner they deem best for their residents. Every day, these elected officials have to carefully weigh the facts, then make difficult decisions about the best allocation of their limited police resources, to ensure the safety and well-being of their communities. These officials have also spent years building trust with their communities and fostering a sense of inclusion. SB 4 undermines all of this work, not to mention similar work in communities across the entire state. SB 4 is not directed at enforcing state law. Rather, under SB 4, local entities must enforce federal immigration law and must do so regardless of whether such enforcement will divert resources away from more pressing police needs, or place their officials and employees in jeopardy of being sued by individuals whose constitutional rights are violated. Critically, moreover, SB 4 imposes severe penalties on local officials who are deemed to violate it: thousands of dollars in civil monetary penalties, removal from office, and even potential jail time. Making matters worse, SB 4 is written in such vague and ambiguous terms that local officials will inevitably be left to guess whether any particular action or policy violates the law.
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If they guess wrong and do not engage in full-bore immigration enforcement (such as asking every single motorist about their immigration status), they risk massive penalties and removal from office. If they choose instead to avoid even the possibility of incurring these penalties by engaging in immigration enforcement at every turn, they will have to divert scarce resources away from more pressing police needs and will create a community of fear and anxiety, with the inevitable result that individuals (including Texas LULAC members) will be profiled and unlawfully detained.
The Court should preliminarily enjoin SB 4 so that it can engage in a deliberate assessment of the law’s legality. Doing so will prevent irreparable harm to Plaintiffs and their communities. In contrast, the State will suffer no harm from a preliminary injunction; no legal void would be left. The status quo will simply remain in place, with local jurisdictions retaining the authority they have always had to choose how best to police their own communities, and leaving the federal government with the responsibility for enforcing federal immigration law.
BACKGROUND A. SB 4’s Effect On Plaintiffs Plaintiffs are the City of El Cenizo and Maverick County, and members of their leadership—the Mayor of the City, and the Sheriff and Constable of the County—and the Texas LULAC. The people of the City of El Cenizo have chosen Plaintiff Raul Reyes to lead them as Mayor for over a decade. Declaration of Raul Reyes (“Reyes Decl.”), ¶¶ 1-2. Under the Mayor’s direction, El Cenizo and its police department have adopted a set of policies to protect and serve its community, which will be directly curtailed by SB 4. See id., ¶¶ 11-28. Plaintiff Sheriff Tom Schmerber spent 26 years with the United States Border Patrol before being elected
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Sheriff of Maverick County, where he supervises 34 deputies. Declaration of Tom Schmerber (“Schmerber Decl.”), ¶¶ 1-2, ¶ 11. Plaintiff Constable Mario Hernandez has served in law enforcement for more than a decade, most recently as elected Constable of Maverick County. Declaration of Mario Hernandez (“Hernandez Decl.”), ¶¶ 1-3. These officials, to varying degrees, limit participation in federal immigration enforcement and use their lawful discretion to place local needs ahead of federal demands by determining how and when they will participate in federal immigration enforcement efforts.
These elected officials have chosen their policies and practices carefully, in light of tight local budgets and a desire, and need, to foster community trust in policing. SB 4 will remove the discretion they need to work for and with their communities, and alienate immigrant and minority community members who will now equate local police with immigration agents. They also fear being penalized or removed from office. All have been outspoken in their criticism of SB 4. And all are unclear as to how to comply with SB 4, given its vague and incredibly broad edicts.
Plaintiff Texas LULAC was founded to provide opportunities for Latino veterans who faced discrimination after returning home from war and has since expanded to advance the needs and interests of the Texas Latino population more generally. Its offices are in San Antonio, as are 1,000 or so of its members. Texas LULAC’s members—in San Antonio and around Texas—fear the discriminatory environment that SB 4 will create, including the increased risk of racial profiling by local police officers who, due to their lack of training, may use skin color or language as a proxy for immigration status—a possibility that SB 4 actually encourages because of the onerous consequences it imposes for failing to toe the line on its broad edicts.
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The fears of all these Plaintiffs are consistent with the views expressed by others,
including the Texas Major Cities Chiefs and the Texas Police Chiefs Association:
SB 4 requires local law enforcement to take a more active role in immigration enforcement; this will tear down what we’ve worked so hard to build up. Officers will start inquiring about the immigration status of every person they come in contact with, or worse, only inquire about the immigration status of individuals based on their appearance. This will lead to distrust of police, less cooperation from members of the community and will foster the belief that they cannot seek assistance from police for fear of being subjected to an immigration status investigation. This is a lose-lose situation for everyone. Art Acevedo & James McLaughlin, Police Chiefs: SB 4 Is a “Lose-Lose’ for Texas, THE
HOUSTON CHRONICLE (Apr. 30, 2017) (attached as Ex. C to Alexis Warren Declaration (“Warren
Decl.”)).
B. Cooperation Between the Federal Government and Local Law Enforcement
The Constitution assigns the federal government primary responsibility for regulating
immigration. U.S. Const. art. I, § 8, cl. 4. State governments and local officials may not
“achieve [their] own immigration policy,” Arizona v. United States, 132 S. Ct. 2492, 2507
(2012), but they may “cooperate” in the voluntary enforcement activities that Congress has
authorized. 8 U.S.C. § 1357(g)(10)(B). These cooperative efforts generally happen directly between federal and local officers.1
Federal-local cooperation on immigration enforcement can take many forms. Federal
officers sometimes ask for local volunteers to join enforcement task forces and help carry out
1 See, e.g., 8 U.S.C. § 1357(d) (providing for direct interaction with a “local law enforcement official”); id. § 1357(f)(2 (same); id. § 1357(g)(1) (limiting cooperation “to the extent consistent with . . . local law”); id. § 1357(g)(9) (participation by a “political subdivision” is voluntary); id. § 1373(a)-(c) (same); id. § 1101(1)(15)(U) (same); id. § 1103(a)(10) (authorizing local arrests with the consent of the local law enforcement chief); id. § 1103(a)(11)(B), (c) (providing for a “cooperative agreement” with a “unit of local government”); id. § 1226(d)(1)(B) (requiring a federal “liaison” to “local law enforcement”); id. § 1522(c)(1)(C) (providing for “consultation with local governments”).
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arrests. They often ask to enter local jails to interrogate inmates. Local agencies can also apply for a program through which the federal government can individually deputize local officers, after training and under supervision, to perform certain functions of federal immigration agents. 8 U.S.C. § 1357(g)(1) (the “287(g) program”). By congressional design, these and other forms of cooperation leave a significant amount of leeway for local law enforcement agencies to adapt their involvement to local needs and priorities.
Local agencies’ discretion to structure their own participation is crucial. Immigration law is notoriously complex, and local officers generally receive no training on the fine distinctions among lawful status, lawful presence, removability, and deportability. See Declaration of Roxana Bacon (“Bacon Decl.”) ¶¶ 8-20 (describing the extreme complexity of immigration law and the indeterminacy of whether an individual is lawfully present, in violation of immigration laws, or subject to being removed or arrested, and explaining why local officials cannot make such determinations); Padilla v. Kentucky, 559 U.S. 356, 377-81 (2010) (Alito, J., concurring in the judgment).
As a result, local enforcement of immigration law has repeatedly led to a number of constitutional problems. It has led local officers to stop and arrest those they perceive to be “foreign,” subjecting entire communities to racial profiling. See Declaration of Vanita Gupta (former head of the Civil Rights Division of the U.S. Department of Justice) (“Gupta Decl.”) ¶ 10 (explaining that “removing the ability and discretion of local law enforcement leaders to limit when and under which circumstances their officers may inquire into immigration status will create the risk of racial profiling” and that “without proper training, supervision, or resources, police will rely on racial proxies for immigration status and screen minorities and those who ‘look’ foreign”); see also, e.g., Melendres v. Arpaio, 989 F. Supp. 2d 822, 865-79 (D. Ariz.
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2013); Trevor Gardner II & Aarti Kohli, Warren Institute, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program (2009), available at https://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf; Danyelle Solomon et al., The Negative Consequences of Entangling Local Policing and Immigration Enforcement, Ctr. for Am. Progress, Mar. 21, 2017, available at https://www.americanprogress.org/issues/immigration/reports/2017/03/21/428776/negativeconsequences-entangling-local-policing-immigration-enforcement/; Michael Barajas, Texas’ Big-City Police Chiefs Hate The “Sanctuary Cities” Bill, SAN ANTONIO CURRENT (May 1, 2017) (attached as Warren Decl., Ex. D) (quoting San Antonio Police Chief William McManus’s concern that “‘[i]n order for me to identify someone who I don’t think is from here, it’s either skin color, language or accent. And in order to do that I’m profiling.”).
Unregulated local enforcement has also resulted in unjustified stops and extended detentions. Melendres, 989 F. Supp. 2d at 906-07; Gupta Decl. ¶¶ 11, 12; see also Suzanne Gamboa, ACLU: Tucson Traffic Stops for Immigration Checks Violating Rights (attached as Warren Decl., Ex. B) (reporting on ACLU of Arizona findings that immigration status inquiries pursuant to Arizona’s SB1070 have resulted in large number of unlawfully extended stops, based on analysis of Tucson police records).
Unlimited local participation can also imperil local budgets and public safety. Holding people in jail is very expensive, and the federal government does not reimburse localities for honoring detainers. 8 C.F.R. § 287.7(e); Edward F. Ramos, Fiscal Impact Analysis of MiamiDade’s Policy on “Immigration Detainers,” available at https://immigrantjustice.org/sites/immigrantjustice.org/files/Miami%20Dade%20Detainers-Fiscal%20Impact%20Analysis%20with%20Exhibits.pdf. Many police forces are short-staffed,
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and lack the personnel to designate officers from their local pool for federal immigration assignments. See Reyes Decl. ¶¶ 16-17 (“Resources are very limited and the city cannot afford to hire additional police officers.”); Hernandez Decl. ¶¶ 6-7; Schmerber Decl. ¶¶ 11-13 (“Given the lack of staff and large population and coverage area in [Maverick] County, our resources are already overly stretched.”); Gupta Decl. ¶ 7.
At the same time, in many Texas communities, the reality is that large portions of the population—immigrants, along with their citizen parents, children, neighbors, and others—will not engage with police if local officers are too deeply involved in federal immigration enforcement. As the Mayor of El Cenizo explains, “the new law’s requirements will create an environment of fear and members of our community will no longer feel comfortable seeking city services or participating in civic life.” Reyes Decl. ¶22; see also Declaration of Lupe Torres (“Torres Decl.”) ¶¶ 11-16; Hernandez Decl. ¶ 15 (“I believe this will also lead people to . . . avoid interaction with me for fear that they will be subject to immigration enforcement”); Gupta Decl. ¶¶ 8-9. The Sheriff of Maverick County’s view is that the legislation will thus harm his office’s community policing efforts. Schmerber Decl. ¶20.
Local agencies must therefore structure their participation to account for their own capabilities and the needs of their constituents. See Reyes Decl. ¶¶ 18-21 (“I have developed a deep understanding of the needs of the community and of the best ways to ensure public safety.”); Schmerber Decl. ¶¶ 12-18 (explaining that SB 4 removes his ability to “properly allocate my resources by deciding when, and when not, to cooperate with [federal] immigration efforts”); Gupta Decl. ¶¶ 7-12.
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C. Senate Bill 4 Before SB 4, Texas law enforcement officials were empowered to determine how best to serve their constituents and accomplish their law enforcement missions. A police chief could tell his officers not to inquire about immigration status during traffic stops—when, for example, such inquiries would impede an investigation or divert limited resources or when there was concern that such inquiries would create distrust with the community and prevent effective policing. Gupta Decl. ¶ 9. A sheriff whose deputies were busy investigating violent crimes could say no if Immigration and Customs Enforcement (“ICE”) asked for volunteers to join a task force. See Schmerber Decl. ¶¶ 12-13. And a jail could insist on a neutral determination of probable cause before re-arresting detainees, who would otherwise be released, for federal immigration purposes. See id. ¶¶ 14-16. SB 4 eviscerates those judgments. Now, any elected local official who does one of those things could be removed from office, fined thousands of dollars, or possibly thrown in jail. See Reyes Decl. ¶¶ 13-14. So could anyone who speaks out against unlimited immigration enforcement. See Schmerber Decl. ¶ 9; Hernandez Decl. ¶ 10. It is hard to overstate SB 4’s intrusion on local democracy. The statute will turn local officials and employees against the communities they serve. With its tangle of undefined commands, backed by crushing penalties, SB 4 hijacks the local political process in a way that neither Texas nor any state has ever attempted before.
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The law’s severity is matched only by its breadth. The law applies to a “local entity” which it defines as any local “officer,” “employee,” or “governing body.” Texas Gov’t Code § 752.051(5) (effective Sept. 1, 2017) (amendment pursuant to Article 1 of SB 4).2
Two sets of provisions in SB 4 are at issue in this lawsuit. The first are general “antisanctuary” provisions governing local enforcement of federal immigration laws. The second set of provisions involve immigration “detainers.”
1. The Sanctuary Provisions SB 4 prohibits local entities—which, again, includes every local employee in the state— from limiting their immigration enforcement activities in numerous ways. For a single violation, even an accidental one, a sheriff or constable can be removed from office, with the removal action initiated at what amounts to the discretionary power of the State’s Attorney General. Id. § 752.0565. There are many layers of prohibition. First, local entities and employees may not “adopt” or “enforce” a “policy,” including an “informal” or “unwritten” policy, which “prohibits or materially limits the enforcement of immigration law.” Id. § 752.053(a)(1); id. § 752.051(6). Second, local entities and employees may not even “endorse” that kind of policy. Id. § 752.053(a)(1). Third, local entities and employees may not engage in any “pattern or practice” that prohibits or materially limits immigration enforcement. Id. § 752.053(a)(2). Notably, the statute nowhere defines what it means to “endorse,” what it means to “limit” (as distinct from “prohibit”), which limits are “material,” or what actions might constitute a “pattern or practice” (as distinct from an “informal, unwritten policy”). Id. § 752.051(6)
2 It even applies to campus police departments. Id. §§ 752.051(5), 752.053(a). See also Univ. of the Incarnate Word v. Redus, 2017 WL 1968030 (Tex. May 12, 2017). It exempts hospitals, religious organizations, and grade schools. Id. § 752.052.
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The statute then lists a number of actions that may never be limited, including that local entities may not stop their employees from (1) “inquiring into the immigration status of a person under lawful detention or arrest,” (2) “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance,” or (3) permitting immigration officers to access local jails. Id. § 752.053(b)(1)-(4). The statute does not define what it means to “assist” or “cooperate,” or what assistance is “reasonable” or “necessary.”3
Local employees who violate any of these commands, even once, face steep penalties. Any employee who intentionally does an act that violates the sanctuary provisions is subject to a civil fine of up to $1,500 for the first violation and up to $25,500 for each subsequent violation. Id. § 752.056(a). For a continuing violation, each day triggers a new penalty of up to $25,500. Id. § 752.056(b). Elected and appointed officials who violate the sanctuary provisions—even once, intentionally or not—are subject to immediate removal from office. Id. § 752.0565.
2. The Detainer Mandate SB 4 requires officers to honor federal immigration detainers issued to local entities to hold an individual in their custody for ICE. See Tex. Code Crim. Proc. art. 2.251(a) (effective Sept. 1, 2017) (amendment pursuant to Article 2 of SB 4). To Plaintiffs’ knowledge, no state has ever enacted that kind of mandate with these penalties. SB 4 defines an “immigration detainer request” as any “federal government request to a local entity to maintain temporary custody of an alien.” Tex. Gov’t Code § 772.0073(a)(2) (effective Sept. 1, 2017) (amendment pursuant to Article 1 of SB 4) (including both requests from ICE using the federal detainer form, I-247, and informal requests). When a local officer
3 One provision purports to block officers from asking victims and witnesses about immigration status, but its many exceptions swallow the rule. See Tex. Code Crim. Proc. art. 2.13(d)-(e) (effective Sept. 1, 2017) (amendment pursuant to Article 6 of SB 4). Most notably, officers may ask about immigration status to provide information about visas. Id. art. 2.13(d)(2).
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receives a detainer request from the federal government, SB 4 requires her to determine whether the subject of the request “has provided proof,” to the officer’s satisfaction, “that the person is a citizen of the United States or that the person has lawful immigration status.” Tex. Code Crim. Proc. art. 2.251(b). If not, SB 4 requires the officer to “comply with, honor, and fulfill any request made in the detainer request.” Id. art. 2.251(a)(1) (emphasis added).4 There is no exception if the individual cannot produce evidence deemed satisfactory by the official, nor is there is an exception if the local official has doubts about whether the federal government has probable cause to support the detainer request. There is likewise no exception for even the most minor crimes. See Syracuse Univ., Trans. Records Access Clearinghouse, Few ICE Detainers Target Serious Criminals, Sept. 17, 2013 (explaining that, in FY 2012 and 2013, half of all ICE detainers targeted people with “no record of a criminal conviction, not even a minor traffic violation”), available at http://trac.syr.edu/immigration/reports/330/.
The penalties for violating this detainer mandate, even once, are severe. A single knowing violation by a sheriff, police chief, or constable is a Class A misdemeanor, Tex. Penal Code § 39.07 (effective Sept. 1, 2017) (amendment pursuant to Article 5 of SB 4), which is punishable by up to one year in jail and a $4,000 fine, id. § 12.21. The official is also subject to immediate removal from office. See Tex. Loc. Gov’t Code § 87.031(c). The violation may also lead to civil fines if it falls within the statute’s sanctuary provisions. Tex. Gov’t Code § 752.056.
4 The statute gives two examples of what might constitute such proof, see Tex. Code Crim. Proc. art. 2.251(b) (“Texas driver’s license or similar government-issued identification”), but does not otherwise specify how local officers should make this determination or what standard of proof they should apply.
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STANDARD OF REVIEW To obtain a preliminary injunction, a party must show: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) the threatened injury to plaintiff must outweigh the threatened harm the injunction may do to defendant, and (4) granting the preliminary injunction will not disserve the public interest. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 435 (5th Cir. Unit B Feb. 1981). The decision whether to grant a preliminary injunction “rests in the sound discretion of the district court.” Vision Ctr. v. Opticks, Inc., 596 F.2d 111, 114 (5th Cir. 1979).
ARGUMENT I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS.
SB 4 is unconstitutional in numerous respects. The law (A) is preempted by federal law, and thus violates the Supremacy Clause, in that it conflicts with Congress’s considered decision to allow local officials the discretion to decide how and when to enforce federal immigration law; (B) is unconstitutionally vague because it does not provide local officials with clear guidance on how to conform their conduct to the law’s requirements, and thus subjects local officials to harsh penalties for failing to guess correctly about the law’s scope; (C) violates the First Amendment because it prohibits speech on the basis of one’s view about the wisdom and legality of local officials enforcing federal immigration law; (D) violates the Fourth Amendment because it requires local police to detain individuals regardless of whether there is probable cause for the detention; and (E) violates the Equal Protection Clause of the Fourteenth Amendment because it singles out noncitizens (and those perceived to be noncitizens) and bars localities from preventing harm to that group and only that group. In addition, the unprecedented nature of SB 4 raises serious Tenth Amendment-type concerns and also has profound voting rights implications.
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A. SB 4 Is Preempted By Federal Immigration Law. State laws are preempted when they “stand[] as an obstacle” to the “full purposes and objectives of Congress.” Villas at Parkside Partners v. City of Farmer’s Branch, 726 F.3d 524, 529 (5th Cir. 2013) (en banc plurality) (quotation marks omitted). This conflict occurs when a state law deviates from Congress’s “decision about the right degree of pressure” to apply to a regulated entity, Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 380 (2000), or when a state law imposes a different “method of enforcement” than the federal scheme. Arizona, 132 S. Ct. at 2505. SB 4 conflicts with the federal immigration scheme in two respects. SB 4 generally upsets the careful balance Congress has struck between encouraging local assistance and preserving local discretion. And SB 4’s specific detainer mandate requires local officers to make their own final determinations about people’s immigration status, which invades the federal government’s exclusive control over immigration. 1. SB 4 Generally Conflicts with the Federal Scheme For Cooperative Enforcement. Congress has paid close attention to the role of local law enforcement officers in the federal immigration scheme. See supra note 1 (listing instances where the Immigration and Nationality Act (“INA”) regulates federal engagement with “local law enforcement,” “local government,” “political subdivisions,” and “local law”). In designing that scheme, Congress has carefully calibrated the amount of pressure it uses to induce local participation in immigration matters. With one limited exception, it has chosen to preserve their discretion to decide what kinds of enforcement activity are consistent with local safety, resources, and rights. SB 4 fundamentally alters that balance. It obliterates the local discretion that federal law preserves, it adds its own sanctions for violations of federal law, it imposes restrictions that
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Congress has considered and rejected, and it introduces new penalties—heavy fines, removal from office, and jail time—that stand starkly at odds with the cooperative regime Congress has created. A “conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Arizona, 132 S. Ct. at 2505 (quotation marks omitted). Accordingly, SB 4 must be enjoined to restore the balance Congress created.
That balance is reflected in numerous federal provisions. On one hand, Congress has created several tailored opportunities for local officers to participate in immigration enforcement. See 8 U.S.C. § 1357(g)(1)-(8) (program for local officers to receive training and act as immigration officers); id. § 1357(g)(10) (permission to voluntarily “communicate” and “cooperate” with federal officers); id. § 1103(a)(10) (limited local arrest authority “with the consent of the head of the department”); id. § 1252(c) (same); id. § 1324(c) (same). On the other hand, Congress has taken great care to preserve local judgments about whether and how to participate. It has made the 287(g) program purely voluntary for “political subdivision[s],” 8 U.S.C. § 1357(g)(9), and ensured that the program is carried out “consistent with . . . local law,” id. § 1357(g)(1). It has made immigration detainers purely voluntary. Id. § 1357(d); Galarza v. Szalczyk, 745 F.3d 634, 639-42, 639 n.3 (3d Cir. 2014). It has acknowledged the toll that immigration enforcement can take on local resources. See 8 U.S.C. § 1231(i) (limited reimbursement for “a political subdivision”). It has empowered local officers to protect victims and witnesses from deportation. See id. § 1101(1)(15)(T), (U) (visas for otherwise-deportable victims and witnesses after local certification). And it has ensured that, even in an emergency, local participation occurs only “with the consent of the head of the department.” Id. § 1103(a)(10).
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The one exception where Congress has cabined local discretion is in the Section 1373 context, a statute that requires a “local government entity” to allow officers to share information about citizenship and immigration status where they have it. Id. § 1373(a)-(b). Section 1373 does not compel local officials to inquire about immigration status to obtain that information in the first place.
SB 4 dramatically upends this scheme in two ways. First, one provision duplicates Section 1373 (sharing information already in the possession of a locality), but imposes new and different state penalties, and is thus clearly preempted by Congress’s calibration of the level of appropriate sanctions for a Section 1373 violation. Second, and more fundamentally, SB 4 covers activity that falls outside of Section 1373, activities that Congress has chosen to leave purely voluntary.
(a) SB 4 attaches its own separate and severe state penalties to violations of Section 1373. Yet, in federal law, Congress chose not to penalize violations of Section 1373. As the Supreme Court has repeatedly made clear, a state or local jurisdiction may not impose different penalties than Congress has chosen. Arizona, 132 S. Ct. at 2502.
Specifically, while Section 1373 carries no sanctions of its own, SB 4 imposes penalties of up to $25,500 and even a single violation can result in removal from office. “Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted.” Arizona, 132 S. Ct. at 2502-03 (describing this as a “further intrusion” beyond field preemption). This duplication would usurp federal enforcement discretion by allowing Texas to decide when and how the federal statute will be enforced. SB 4’s vastly escalated penalties also directly conflict with Congress’s choice of remedies. “Conflict is imminent when two separate remedies are brought to bear on the same activity.”
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Crosby, 530 U.S. at 380 (quotation marks omitted); see id. (“[T]he inconsistency of sanctions here undermines the congressional calibration of force.”); Farmer’s Branch, 726 F.3d at 529.5
(b) In addition to imposing different penalties for violations of Section 1373, SB 4 also removes local discretion in areas not covered by Section 1373, in clear conflict with Congress’s decision to limit the Section 1373 mandate to sharing information already in a locality’s possession.
Specifically, SB 4 extends to enforcing detainers, Texas Gov’t Code § 752.053(a)(3); Tex. Code Crim. Proc. art. 2.251, interrogations about immigration status, Texas Gov’t Code § 752.053(b)(1), undefined “enforcement assistance,” id. § 752.053(b)(3), local jail access, id. § 752.053(b)(4), and literally anything else that might be said to “limit the enforcement of immigration laws.” Id. § 752.053(a), (b). Thus, local officials will now be regularly required, among other things, to allow motorists to be questioned about immigration status by local police.
Notably, Congress has repeatedly considered and rejected attempts to prohibit additional forms of non-cooperation by state and local entities—the very restrictions SB 4 now imposes. See, e.g., CLEAR Act of 2015, H.R. 2964, 114th Cong. § 5 (2015); SAFE Act, H.R. 2278, 113th Cong. § 114 (2013); CLEAR Act of 2003, H.R. 2671, 108th Cong. § 105 (2003); Stop Sanctuary Policies and Protect America Act, S. 2146, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (as passed by House on July 23, 2015). SB 4 thus represents “an untenable expansion of the federal [sanctuary] provision.” Farmer’s Branch, 726 F.3d at 531 n.9 (en banc plurality) (quotation marks omitted). Texas cannot now enact these same
5 Similarly, in Whiting, the Court held that an Arizona statute requiring employers to use EVerify “did not conflict” with federal law because “the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 608 (2001) (emphasis added). This could not be further from SB 4. Moreover, the Arizona law only regulated private employers, not local governments.
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restrictions in the face of Congress’s determination that they would disserve the federal enforcement scheme. See Crosby, 530 U.S. at 378 n.13 (finding preemption where “Congress repeatedly considered and rejected targeting a broader range of conduct”); Arizona, 132 S. Ct. at 2504 (finding preemption where “Congress made a deliberate choice not to impose” penalties that the state had imposed).
Section 1373 represents Congress’s “deliberate effort to steer a middle path.” Crosby, 530 U.S. at 378-79 (quotation marks omitted). Texas is not free to reject “the federal decision about the right degree of pressure” to apply to law enforcement agencies. Crosby, 530 U.S. at 380. SB 4 would obliterate the voluntary federal scheme and replace it with a system of unregulated enforcement, divorced from local judgments about safety, resources, and rights. It would force sheriffs, constables, and line officers to permit maximum enforcement activity, lest they violate SB 4’s expansive terms and trigger its harsh penalties. No longer could they require reasonable suspicion before interrogating people about their immigration status. Texas Gov’t Code § 752.053(b)(1); but see Arizona, 132 S. Ct. at 2507-09 (upholding status verification provision that required reasonable suspicion). Nor could they even prevent their officers from carrying out civil immigration arrests, because that would surely “limit the enforcement of immigration laws.” Texas Gov’t Code § 752.053(a)(1), (2); but see Arizona, 132 S. Ct. at 250507 (striking down provision that authorized such arrests). “This is not the system Congress created.” Id. at 2506.
Congress’s decision makes sense, moreover. Local involvement in immigration carries many pitfalls. Local officers are generally not trained in the “significant complexities involved in enforcing federal immigration law.” Arizona, 132 S. Ct. at 2506. See Bacon Decl. ¶¶ 7, 1419; Gupta Decl. ¶ 7; Reyes Decl. ¶17; Hernandez Decl. ¶14; Schmerber Decl. ¶¶18-20. Their
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unregulated involvement risks “unnecessary harassment of some aliens” and “may lead to harmful reciprocal treatment of American citizens abroad.” Arizona, 132 S. Ct. at 2506, 2498 (quotation marks omitted). At the same time, indiscriminate local participation can drain local resources, jeopardize individual rights, and sever links between law enforcement and victims, witnesses, and other constituents. See Gupta Decl. ¶¶8-9; Reyes Decl., ¶22; Hernandez Decl., ¶15; Torres Decl., ¶¶11-16; Schmerber Decl., ¶¶20-22. The interplay between compulsion and discretion implicates all of those interests. Congress is entitled to balance them without Texas’s interference.
Texas cannot claim any sovereign right to increase its subdivisions’ engagement in immigration enforcement. That much is clear from Arizona, where the Supreme Court struck down a statute that empowered local officers to make immigration arrests. See 132 S. Ct. at 2505-07; see also Crosby, 530 U.S. at 367, 377 (striking down state’s statute that “restrict[ed] the authority of its agencies” to engage in certain economic activity, because “Congress manifestly intended to limit economic pressure . . . to a specific range”). Congress is free to preempt such attempts. While states have an absolute right to refuse to participate in federal regulatory programs, see Printz v. United States, 521 U.S. 898, 935 (1997), they have no affirmative right to engage in immigration enforcement.
Nor does any case law support SB 4’s precipitous expansion of Texas immigration enforcement. In Arizona, the Court upheld a provision that instructed officers to contact the federal government to verify detainees’ immigration status. 132 S. Ct. at 2507-10. Crucially, though, the provision only applied if there was “reasonable suspicion” that a person was unlawfully present, only required verification “when practicable,” and only required a “reasonable attempt” to verify status. Id. at 2507. SB 4, by contrast, would prohibit law
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enforcement chiefs from imposing the exact same limitations, see Tex. Gov’t Code §§ 752.053(a)(1)-(2), and imposes crushing penalties where Arizona’s law imposed none. See Crosby, 530 U.S. at 380 (inconsistent penalties preempted). SB 4, which extends way beyond status checks, would thus induce far more local enforcement with far less local discretion.
In short, SB 4 conflicts with the system Congress designed. Through its many efforts to preserve local discretion, its many refusals to expand Section 1373, and its many decisions to reject a more compulsory local role, “Congress manifestly intended to limit” its mandates on local jurisdictions “to a specified range.” Id. at 377. SB 4 fundamentally clashes with this Congressional design.
2. The Detainer Mandate Impermissibly Relies on Local Determinations of Immigration Status.
SB 4 requires law enforcement agencies to honor all immigration detainer requests where the subject of the detainer cannot “provide[] proof” of citizenship or “lawful immigration status.” Tex. Code Crim. Proc. art. 2.251(a)-(b). A sheriff, police chief, or constable who knowingly fails to honor a single detainer is subject to a Class A misdemeanor, see Tex. Penal Code § 39.07, which carries a sentence of up to a year in jail, id. § 12.21.
The detainer mandate is preempted because it relies on local officers making unilateral determinations of immigration status. The “federal immigration scheme . . . leaves no room for a determination of immigration status” by state or local officials. Farmer’s Branch, 726 F.3d at 559 (Owen, J., concurring in part and dissenting in part). In Farmer’s Branch, the Fifth Circuit struck down an ordinance that placed a “determination [of lawful presence] in the hands of state courts,” because the state determination “open[s] the door to conflicting state and federal rulings on the question.” 726 F.3d at 536 (en banc plurality).
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In the face of these clear instructions, SB 4 conditions compliance with federal detainer requests on whether the local officer thinks a “person has lawful immigration status in the United States.” Tex. Code Crim. Proc. art. 2.251(b). Placing that determination in a local officer’s hands contravenes the principle that “the power to classify non-citizens is reserved exclusively to the federal government.” Farmer’s Branch, 726 F.3d at 537. This role is reserved for federal officers because they, unlike local officers, are trained in the many “intricacies of immigration law.” Padilla, 559 U.S. at 377-81 (Alito, J., concurring in judgment); Bacon Decl. ¶¶ 7-19. And while SB 4 lists one example of what might establish lawful status (a Texas driver’s license), it provides no guidance as to what standard of proof the officer should apply. See Tex. Code Crim. Proc. art. 2.251(b).
As explained below, SB 4 mandates this impermissible status determination while also forbidding local officials from declining a detainer request when they have doubts about whether the presence of probable cause justifies the continued detention. See infra Part I.D. (explaining SB 4’s Fourth Amendment violations). Those two determinations are not the same: Probable cause does not necessarily exist simply because the person cannot affirmatively prove their own immigration status on the spot. Thus, instead of allowing law enforcement to ensure that arrests comply with the Constitution, SB 4 forces local officers to make an impermissible final determination of immigration status.
B. SB 4 is Unconstitutionally Vague. Three of SB 4’s punitive anti-sanctuary provisions (Texas Gov’t Code §§ 752.053(a)(1), (a)(2), and (b))—and the entirety of the detainer requirement (Tex. Code Crim. Proc. art. 2.251(a), (b); Tex. Penal Code § 39.07)—are unconstitutionally vague and must accordingly be invalidated.
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1. SB 4 Is Subject to Heightened Vagueness Scrutiny Because It Impacts Constitutional Rights and Is Both a Criminal and Quasi-Criminal Statute.
A “stringent” vagueness test applies where, as here, a statute “threatens to inhibit the exercise of constitutional rights,” and where the law is criminal or “quasi-criminal” in nature. Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982).
Here, SB 4’s detainer and anti-sanctuary provisions impact constitutional rights, and accordingly the “stringent” vagueness standard applies. The stringent standard also applies because SB 4 is a criminal and quasi-criminal statute. SB 4’s detainer provision imposes criminal penalties, Tex. Penal Code § 39.07, and the anti-sanctuary provisions are “quasicriminal.” A quasi-criminal provision is one that imposes “significant civil and administrative penalties, including fines and license revocation.” Women's Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 420 (5th Cir. 2001). SB 4 imposes significant financial penalties for violations of the anti-sanctuary provisions,. See Texas Gov’t Code § 752.056(a)(1) (fine of $1000 - $1,500 a day for a first violation); (a)(2) ($25,000 to $25,500 for every subsequent violation); and (b) (treating each day of a continuing violation as a separate violation). And elected officials also face removal from office. See Texas Gov’t Code § 752.056. These penalties are at least as severe as those found to be quasi-criminal by the Fifth Circuit. See Women’s Med. Ctr., 248 F.3d at 422 (finding that civil administrative penalties of $100 to $2,500 per day and loss of medical license are “quasi-criminal”).6
6 Indeed, the vagueness in the anti-sanctuary provisions is so pronounced that these sections would be unconstitutionally vague even under the more lenient test that applies to civil regulations of merely economic conduct. SB 4 “commands compliance in terms ‘so vague and indefinite as really to be no rule or standard at all’” and “is ‘substantially incomprehensible.’” Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 507 (5th Cir. 2001) (internal quotation marks and citations omitted).
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Accordingly, the heightened standard for assessing vagueness applies here. Under this heightened standard, a law is unconstitutionally vague if it “(1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” Id. at 421. SB 4’s anti-sanctuary and detainer provisions fail both parts of this disjunctive test.
2. SB 4’s Anti-Sanctuary Provisions Are Unconstitutionally Vague. The anti-sanctuary provisions contain numerous unconstitutionally vague terms that, singularly and combined, fail to provide Plaintiffs with a “reasonable opportunity to know what conduct is prohibited” and are “so indefinite” that the law “allows arbitrary and discriminatory enforcement.” Id. Its vague terms include provisions that local entities may not “materially limit” federal immigration enforcement Texas Gov’t Code § 752.053(a)(1); may not engage in “patterns or practices” that “materially limit” federal immigration enforcement, id. § 752.053(a)(2); and must provide “assistance” and “cooperation” to federal immigration officers unless doing so would not be “reasonable or necessary,” id. § 752.053(b)(3). As result of these vague terms, Plaintiffs are in a bind. They may either fail to act when SB 4 requires it, or take action not compelled by SB 4 that harms their constituents and subjects them to lawsuits. On the one hand, Plaintiffs may mistakenly guess that SB 4 does not prohibit a particular action, policy, or endorsement, and thereby face severe penalties and removal from office.7 On the other hand, they may assume that SB 4 applies or that the severe penalty of
7 Notably, removal from office contains no scienter requirement. Tex. Gov’t Code § 752.053. The monetary and detainer penalties do require that an employee intentionally perform an act that violates the law. Tex. Gov’t Code § 752.056(a); Tex. Penal Code § 39.07. But this intent requirement cannot alleviate the vagueness of the statutes, as the prohibited acts are themselves unclear. A scienter requirement “cannot make definite that which is undefined.” Screws v. United States, 325 U.S. 91, 105 (1945) (plurality opinion); see also Colautti v. Franklin, 439 U.S. 379, 395 (1979); Kramer v. Price, 712 F.2d 174, 178 (5th Cir. 1983)
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failing to comply poses too great a risk. That, in turn, will cause them to over-enforce SB 4’s provisions and thereby lead to conduct that exposes Plaintiffs to liability for violating the Fourth Amendment or prohibitions against racial profiling. Mistaken compliance out of the fear of penalties would also undermine Plaintiffs’ relationship with their communities, create fear and anxiety in those communities, and divert scarce resources to federal immigration enforcement at the expense of solving violent crimes or other pressing safety issues. See Reyes Decl. ¶¶16-22; Schmerber Decl. ¶¶12-20; Torres Decl. ¶¶11-16; Hernandez Dec. ¶¶6-7, ¶10, ¶15.
(a) The term “materially limit” used in sections 752.053(a)(1) and (2), 752.053(b) is not defined and cannot possibly guide local entities with the tough decisions they must make in allocating scare resources on difficult policing issues, especially given that some of those decisions must be made under significant time constraints. See Schmerber Decl., ¶13, ¶16. As the Fifth Circuit has made clear, terms like “materially limit” provide no meaningful guidance to local entities and their employees. See, e.g., Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 832 (5th Cir. 1979) (holding that proscription on actions that “hamper or impede the conduct of any authorized business at the airport” is unconstitutionally vague because countless actions near business may be considered to “hamper” or “impede” its conduct).
For instance, Plaintiffs cannot know whether, in light of SB 4, they are required to instruct their deputies to inquire about immigration status every time they detain an individual. See Schmerber Decl. ¶ 13. Local entities may instead wish to instruct their deputies that they should inquire about immigration status during traffic stops only where they have reasonable
(“[s]pecifying an intent element does not save [the challenged law] from vagueness because the conduct which must be motivated by intent, as well as the standard by which that conduct is to be assessed, remain vague”), vacated as moot after repeal of challenged statute, 273 F.2d 1164 (5th Cir. 1984).
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suspicion that the individual is in the country unlawfully and there is objective evidence to support that suspicion. Yet, after SB 4, that type of sound policy decision may be deemed by the State to “materially limit” the enforcement of immigration law, because the State wants full-on immigration enforcement, with individuals being asked about their immigration status when stopped or detained. Plaintiffs may likewise wish to instruct their deputies that they should not spend time inquiring about immigration status if it would lengthen the detention, or would divert them from more pressing tasks concerning public safety. See Schmerber Decl. ¶¶ 12-13, 19; Hernandez Decl. ¶15. But again, under SB 4, the State may very well deem that policy decision to “materially limit” immigration enforcement.
Similarly, ICE may request local assistance in a task force. If Plaintiffs decided that they cannot help because of the need to deploy their officers on more pressing local matters, or because Plaintiffs do not want to undermine public trust in policing, that decision could be deemed by the State to “materially limit” the enforcement of immigration law. See Schmerber Decl. ¶13. The same is true of less formal requests by ICE. As Sheriff Schmerber notes in his declaration, he has in the past received calls from immigration agents requesting police backup for immigration enforcement actions. See Schmerber Decl. ¶13-14. He has had to decline some requests because of a lack of resources. Id., ¶14. Yet now, in light of SB 4’s vague language, he will have to consider whether the State would construe such declinations as “materially limit[ing]” the enforcement of immigration law. Id. Thus, even simple, day-to-day decisions regarding how a city or county allocates its scarce police resources will be fraught with uncertainty and potentially lead to significant penalties.
Moreover, the law does not define what is meant by “assisting or cooperating” with federal immigration officers. Tex. Gov’t Code § 752.053(b)(3). Virtually anything could fall
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within those terms, depending on how expansively the State chooses to interpret them. For example, the law provides local entities with no guidance on whether it is reasonable or necessary to refuse cooperation where they believe federal agents are using excessive force or are failing to comply with Fourth Amendment search requirements. Nor does the law provide guidance on whether it is reasonable or necessary to decline cooperation where the investigation of a local crime demands an officer’s time and additional police resources. There are countless scenarios in which this confusion will interfere with urgent local matters or embroil local officials in unnecessary disputes not of their making.
In short, Plaintiff officials cannot reasonably anticipate which of their many policies or actions will be deemed by the State to “materially limit” immigration enforcement. Every day, local entities make decisions about where and how to allocate resources to best serve their communities. They now will have no idea whether they are violating the law and subjecting themselves to financial penalties or removal from office.
(b) The vagueness of the “materially limit” language is compounded by other vague terms in the statute. The law, for example, penalizes a “pattern” or “practice” of materially limiting immigration enforcement. Id. § 752.053(a)(2) It is not clear whether this means, for example, only a consistent practice over months or years or would also include some number of instances by the same officer or unit. The State could also conclude that an officer who fails a handful of times to check the immigration status of a motorist may have a pattern of limiting immigration enforcement. That officer’s superior, as well, may be in violation, for failing to affirmatively order an end to the “pattern or practice.”
Additionally, SB 4 broadly and ambiguously defines the term “immigration laws” as any state or federal law “relating to aliens, immigrants or immigration,” and not simply limited to the
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“federal Immigration and Nationality Act” or any specific statutory or legislative provision. Texas Gov’t Code § 752.051(2) (emphasis added). Consequently, local entities are prohibited from adopting or endorsing policies and practices that “materially limit” enforcement of the myriad laws that arguably relate to noncitizens, which could (in the State’s view) include virtually anything (housing, marriage, or benefit laws, for instance). See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, §§ 40151, 110 Stat. 2105, 2260-77 (1996) (governing noncitizens’ eligibility for welfare benefits outside the INA).
SB 4’s combination of ill-defined terms thus leaves Plaintiffs in the dark on even basic duties: Is every deputy and officer required to ask about immigration status at the time of every stop or arrest? Are they required to do so even for deputies and officers who are not trained in immigration law, and where the time and resources will come at the expense of other, more pressing policing tasks? Plaintiffs legitimately and reasonably fear that they will not be able to stay within the bounds of the law given these vague terms. See Schmerber Decl. ¶¶ 13, 16-17, 20; Hernandez Dec. ¶¶ 11-14; Reyes Decl. ¶¶ 23-26.
Critically, moreover, the vague provisions do more than create uncertainty among localities. They grant the State an unprecedented amount of discretion to dictate local policies through the selective application of civil penalties. The threat of arbitrary enforcement is a real one: Texas has already chosen to sue those jurisdictions and individual officials who are “publicly hostile” to the policies of SB 4. See Complaint for Declaratory Judgment, Texas v. Travis County, et al., 1:17-cv-00425, ¶¶ 3-5 (W.D. Tex. May 7, 2017), (No. 1). These twin harms—the impossibility of anticipating and avoiding prohibited conduct and the potential for
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“arbitrary and discriminatory” administration of the law—are precisely what the constitutional prohibition on vagueness is designed to prevent. Women’s Med. Ctr., 248 F.3d at 421.8
3. The Detainer Mandate Is Unconstitutionally Vague. The detainer provisions expose Plaintiffs to criminal penalties and are unconstitutionally vague. The provision states that local officials need not honor a detainer request if they determine that the individual is a U.S. citizen or has a “lawful immigration status,” Tex. Code of Crim. P. Art. 2.251(b), but the law does not define the term “lawful immigration status.” It is impossible for officers to administer this exception properly because federal law does not define the term. Bacon Decl. ¶¶ 9-10 (“The [INA] does not contain a definition or category that establishes when an individual has ‘lawful immigration status’ that could be used in the administration of SB 4.”). Rather, federal immigration law creates myriad immigration statuses. Some—like Lawful Permanent Resident status—grant a non-citizen formal immigration status. See generally 8 U.S.C. § 1255; Bacon Decl. ¶ 10. Others provide lawful authorization to be present in the United States but do not provide a formal immigration status. Bacon Decl. ¶¶ 1013. For example, some noncitizens are given a status of “deferred action” that allows them to work and remain in the United States, but they have no formal lawful immigration status. Bacon Decl. ¶ 13. Likewise, an individual seeking asylum may have permission to work and remain in the United States while her asylum claim is being adjudicated, but will have no formal lawful immigration status. See 8 U.S.C. § 1158(d)(2); 8 C.F.R. § 208.7, § 274a.12(c)(8); Bacon Decl. ¶
8 SB 4 effectively gives the Texas Attorney General enormous discretion about which local officials to target with an enforcement action for whichever local SB 4 infraction he chooses to perceive at the time.
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12. Other lawful statuses allow a person to be in the United States but do not authorize employment. See Bacon Decl. ¶ 67.
SB 4 does not make even remotely clear how local entities are supposed to administer the law in the absence of clear guidelines. The law states only that a person can attempt to show lawful immigration status with certain kinds of documents, such as a Texas drivers’ license. But not everyone will have a drivers’ license, for various reasons that are unrelated to status. Veasey v. Perry, 71 F.Supp. 3d 627 660 (S.D. Tex 204), aff’d in part, vacated in part, rev’d in part on other grounds, Veasey v. Abbott, 832 F.3d 216 (5th Cir. 2016). More fundamentally, there is no one government document that proves “lawful immigration status” because there is no single federal definition of lawful immigration status. Bacon Decl. ¶ 16. Thus, because SB 4 does not define “immigration detainer request” or “lawful immigration status,” it is an unconstitutionally vague criminal provision.
C. SB 4’s Prohibition Of “Endorsement” Violates The First Amendment. Under SB 4, no local official may “endorse” a policy that “materially limits the enforcement of immigration laws.” Tex. Gov’t Code § 752.053(a)(1). The prohibition on endorsements patently violates the First Amendment because it (1) involves viewpoint discrimination, and (2) is overbroad and vague. 1. The Endorsement Ban is Unconstitutional Viewpoint Discrimination. SB 4’s ban on endorsements is a ban on speech. Indeed, it is not only a ban on speech, but a ban on speech on a matter of vital public interest. It thus targets political speech that lies at the heart of the First Amendment. New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (“debate on public issues should be uninhibited, robust, and wide-open”). Even more egregiously, the ban bars political speech on the basis of the speaker’s viewpoint—a local official
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can endorse immigration enforcement, but cannot endorse limitations on enforcement. See Webster’s Third New Int’l Dictionary 749 (1981) (stating that “endorse” means “to express definite approval or acceptance of,” “vouch for” or “underwrite”). See Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641 (1994) (noting that viewpoint discriminatory laws impermissibly seek “to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.”). Viewpoint discrimination—particularly discrimination against statements by elected officials—is subject to the highest scrutiny and must be narrowly tailored to a compelling government interest. Where “the State chooses to tap the energy and legitimizing power of the democratic process . . . it must accord the participants in that process . . . the First Amendment rights that attach to their roles.” Jenevein v. Willing, 493 F. 3d 551, 557-58 (5th Cir. 2007) (explaining that an elected government employee is granted full First Amendment protections because his “‘employer’ is the public itself”).
Texas has offered no valid justification, much less a compelling governmental interest, to justify its endorsement ban. Nor could it. See Wood v. Georgia, 370 U.S. 375, 392 (1962) (“[T]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”); Republican Party of Minn. v. White, 536 U.S. 765, 778 (2002) (invalidating state supreme court’s canon of conduct, which prohibited candidates for judicial election from announcing their views on disputed legal or political issues, as a content-based regulation of speech).9
9 The endorsement ban is also facially overbroad, because “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472–73 (2010) (citation omitted). Indeed, here it is difficult to imagine any legitimate applications.
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In short, Texas cannot ban local officials from speaking on a topic of such vital interest to Texans and the Nation. That is especially so where Texas prohibits speech on one side of the debate only. Garcetti v. Ceballos, 547 U.S 410, 419 (2006) (stressing that the First Amendment protects the right of all public employees—even those who are not elected officials—to speak as “citizens about matters of public concern” and recognizes “the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion”).
2. The Endorsement Ban Is Also Unconstitutionally Vague. In addition, the endorsement prohibition is unconstitutionally vague. Under the First Amendment, statutes that regulate expression must be “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest” in free and open expression. Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973); see also Hobbs v. Thompson, 448 F.2d 456, 459 (5th Cir. 1971) (“Lack of fair warning to actors or lack of adequate standards to guide enforcers also may lead to a ‘chill’ on privileged activity.”). No reasonable person can determine what type of action or speech constitutes an “endorsement” of a policy that “materially limits” immigration enforcement. D. SB 4’s Detainer Mandate Violates The Fourth Amendment. SB 4’s detainer mandate will force law enforcement officers to violate their constituents’ rights. It prohibits what the Fourth Amendment requires—a particularized determination, in each case, that probable cause supports the detention. The detainer provision should therefore be enjoined. SB 4 forces law enforcement agencies to honor all immigration detainer requests for detainees who cannot affirmatively prove that they are citizens or have lawful status. See Tex.
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Code Crim. Proc. art. 2.251(a), (b). The statute defines “immigration detainer request” broadly to include not just formal I-247 requests, but any “federal government request . . . to maintain temporary custody of an alien.” Tex. Gov’t Code § 772.0073(a)(2). SB 4 thus requires officers to honor informal detention requests as well, such as a phone call.
Honoring a detainer constitutes “a new seizure for Fourth Amendment purposes,” and must therefore be supported by probable cause. Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); see id. at 217 n.3 (“courts have uniformly held that probable cause is required” for an immigration detainer); accord Mercado v. Dallas Cty., 2017 WL 169102, at *5-6 (N.D. Tex. Jan. 17, 2017). Immigration detainers must also comply with the INA, which only allows warrantless arrests when an immigration officer has “reason to believe” that the arrestee is “likely to escape before a warrant can be obtained.” 8 U.S.C. § 1357(a)(2) (2006); Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016) (enjoining issuance of detainers without either warrant or individualized “likely to escape” determination); Orellana v. Nobles Cty., 2017 WL 72397, at *8-9 (D. Minn. Jan. 6, 2017) (holding that county lacked authority to honor detainer issued in violation of § 1357(a)(2)).
The across-the-board detainer arrests that SB 4 compels will violate these requirements. First, arrests will violate the Fourth Amendment when the detainer is issued without probable cause. See, e.g., Morales v. Chadbourne, No. 12-301-M-LDA, 2017 WL 354292, at *5-6 (D.R.I. Jan. 24, 2017) (holding that ICE had issued detainer without probable cause of removability); Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (county lacked probable cause based on detainer that conveyed absence of probable cause). Second, informal detention requests, if not expressly time-limited, will force local officers under SB 4 to hold people for longer than 48 hours. See Cty. of Riverside v.
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McLaughlin, 500 U.S. 44, 56-67 (1991) (suspects arrested without warrant must be provided probable cause within 48 hours of arrest); Roy v. Cty. of Los Angeles, 114 F. Supp. 3d 1030, 1033 (C.D. Cal. 2015) (immigrants held on detainers for 6, 18, and 89 days); Miranda-Olivares, 2014 WL 1414305, at *9 (discussing immigrant held on detainer for two weeks). Third, ICE has admitted that it fails to comply with the INA’s warrantless arrest provision, because it issues detainers without any “individualized determination that” a person is “likely to escape” before a warrant can issue. 8 U.S.C. § 1357(a)(2); Moreno, 213 F. Supp. 3d at 1005-06.10 Arrests in any of these situations are illegal. And yet SB 4 forces local officers to arrest and detain anyway.
The statute’s exception for people who can prove citizenship or lawful status does not cure its defects. Among other things, the exception would not prevent detentions from lasting longer than 48 hours. Nor does a person’s inability to affirmatively prove their immigration status establish probable cause that they are removable. Hundreds of thousands of citizens in Texas do not have a driver’s license or similar identification. Veasey, 71 F. Supp. 3d at 660 (expert testimony that over 600,000 registered voters in Texas did not have driver’s licenses or other voter ID); see also id. at 671 (noting that Texas’s “suspension of more than a million driver’s licenses . . . disparately burdened . . . Latinos”). And it is not clear what other
10 Although ICE has recently announced that it will address this deficiency by issuing administrative warrants along with detainers, see U.S. Immigration & Customs Enforcement, Policy Number 10074.2, at 2, Mar. 24, 2017, it is too early to know how many errors will occur. Cf. Complaint for Injunctive and Declaratory Relief and Damages at 24-26, Roy v. Cty. Of Los Angeles, CV 12-9012-RGK (Oct. 19, 2012) (noting that ICE “routinely issue[d] immigration holds for the initiation of an investigation without probable cause to believe a person in removable form the United States”); Am. Immigration Lawyers Ass’n, Immigration and Customs Enforcement’s Detainer Program Operates Unlawfully Despite Nominal Changes 3-4 (2017) (“in the ordinary course of their duties, ICE officers routinely issue detainers requesting extended detention without any sworn, particularized statement of probable cause or review by a neutral magistrate.”).
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documents will prove status, even if local officials could make that complex determination. See Bacon Decl. ¶ 16.
The Court should therefore enjoin SB 4’s detainer mandate in full. See City of Los Angeles v. Patel, 135 S. Ct. 2443, 249-51 (2015) (listing facial invalidations of statutes on Fourth Amendment grounds). For every arrest, the Fourth Amendment requires the officer to decide whether there is probable cause. This requires a “particularized” assessment, in each case, that probable cause supports the arrest. Maryland v. Pringle, 540 U.S. 366, 371, 373 (2003). SB 4 would thus render every arrest it commands invalid, because the statute forbids officers from undertaking any particularized assessment, even though the Fourth Amendment requires a particularized assessment for each arrest. See Patel, 135 S. Ct. at 2451-52 (invalidating statute because it authorized searches without the opportunity for the pre-compliance review that the Fourth Amendment required for every search).
Facial invalidation is also necessary to protect law enforcement chiefs from the catastrophic penalties SB 4 imposes, even for unintentional violations. The penalty of removal from office has no scienter requirement and no good-faith exception. See Tex. Gov’t Code § 752.0565(a). A sheriff who instructed a deputy on a single occasion, based on a mistaken immigration status determination, not to honor a detainer would be subject to removal from office. See id. § 752.053(b)(3) (sheriffs may not prohibit deputies from “providing enforcement assistance”). That is an intolerable burden to place on law enforcement officers, whose first duty is to protect the rights of those they serve. U.S. Const. art. VI (oath to uphold the Constitution); Tex. Const. art. 16, § 1(a) (oath to “defend the Constitution and laws of the United States”). It will force officers to carry out arrests despite uncertainty about probable cause or compliance
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with the INA. See Patel, 135 S. Ct. at 2452-534 (facially invalidating ordinance because “the ordinance create[d] an intolerable risk that searches authorized by it” will be unlawful).
Law enforcement agencies have used a number of approaches to seek to ensure that their detainer arrests do not violate the Constitution. Some require that a “neutral magistrate” determine probable cause. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Others take things case by case. Schmerber Decl., ¶ 16. Officers should not have to face fines and prosecution for declining detainers that lack probable cause or statutory authorization. See Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 490 (2010) (“We normally do not require plaintiffs to bet the farm by taking the violative action before testing the validity of the law.”) (internal quotations marks and citations omitted). The Court should enjoin Texas from applying SB 4 to these policies, or to actions taken under them.
E. SB 4 Violates Equal Protection. SB 4 prevents local policies that are necessary to prevent specific, concrete injuries on
the basis of race and alienage. Relatedly, it comprehensively removes basic local protections from non-citizens (and those who are assumed to be non-citizens), and no others, targeting a group that states have no constitutional interest in treating differently from other residents.
1. As explained above, unregulated local immigration enforcement often leads to stops and arrests targeted at those perceived to be “foreign,” particularly Latinos. See Melendres, 989 F. Supp. 2d at 903-04 (attributing racial profiling in part to agency’s “failure to monitor its deputies’ actions for patterns of racial profiling”). This occurs when local officers, untrained in the complexities of immigration law, use other proxies for immigration status like race, language, national origin, and alienage. See Reyes Decl., ¶ 28; Schmerber Decl., ¶ 20; Torres Decl., ¶¶ 11-13; Gupta Decl. ¶ 10.
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To prevent this problem from occurring, law enforcement agencies in Texas and across the country structure their practices in a variety of ways. Some limit inquiries about immigration status, so officers do not seek out opportunities to ask those questions. Gupta Decl. ¶ 8, 10, 12. Others regulate when officers can honor detainers or seek to remove incentives for their officers for overzealous attempts to stop and arrest people who look foreign. Gupta Decl. ¶¶ 10-12. Still others choose not to participate in task forces or the 287(g) program, whose track record of racial profiling is well known. See, e.g., Dep’t of Homeland Sec., Office of the Inspector Gen., The Performance of 287(g) Agreements, OIG-10-63 at 25-27 (2010) (describing reforms needed “to address civil rights issues”); Gustavo Valdes & Thom Patterson, Feds Accuse North Carolina Sheriff’s Office of Racial Profiling, CNN (Sept. 20, 2012), http://www.cnn.com/2012/09/20/justice/north-carolina-justice-immigration/ (reporting that ICE terminated 287(g) agreement because of a “pattern of racial profiling aimed at searching for illegal immigrants”) (internal quotation marks omitted).
SB 4 wipes out these efforts to ensure local compliance with the Constitution. Under SB 4, a law enforcement chief cannot prevent racial profiling by limiting when her officers can ask about status. This kind of state law has long been impermissible. As the Supreme Court recently reaffirmed, the Equal Protection Clause does not permit states to preempt local efforts to “address or prevent injury caused on account of race.” Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1636 (2014) (plurality opinion) (Kennedy, J.); see id. at 1638 (noting that states cannot enact “political restriction[s]” that are “likely to be used[] to encourage infliction of injury by reason of race”). The Court has therefore struck down state laws that prohibit local desegregation policies, see Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and local housing anti-discrimination ordinances, see Reitman v. Mulkey, 387 U.S. 369
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(1967). SB 4 is no different. By disabling policies meant to address specific, concrete injuries on account of race, SB 4 “operate[s] to insinuate the State into the decision to discriminate.” Schuette, 134 S. Ct. at 1631.
In fact, SB 4 goes further than the statutes struck down in Reitman and Seattle, because they only preempted local efforts to address discrimination that did not violate the Constitution. See Seattle, 458 U.S. at 474 (noting “the absence of a constitutional violation”); Reitman, 387 U.S. at 381 (ordinance only prohibited “private racial discrimination”). Because SB 4 creates a “serious risk” of causing these “specific injuries on account of race,” Schuette, 134 S. Ct. at 1633, the statute must be enjoined.11
That SB 4’s contains a boilerplate statement that local entities “may not consider race . . . except to the extent permitted by the United States Constitution or Texas Constitution” is of little value. Texas Gov’t Code § 752.054. This simply authorizes officers to consider race to the maximum extent permitted by the Constitution, but otherwise adds nothing beyond pre-existing constitutional limits and does not validate the policies that police and sheriffs use to “prevent injury caused on account of race.” Schuette, 134 S. Ct. at 1636 (emphasis added). Nor will this provision alone reduce the “serious risk” of “injuries on account of race.” Id. at 1633. Under SB 4, limiting involvement in immigration enforcement can lead to jail, fines, and ouster from office, whereas violating the anti-discrimination provision carries no penalty at all. See also Melendres, 989 F. Supp. 2d at 848 (systematic racial profiling despite official policy that “[r]acial profiling is prohibited and will not be tolerated”).
11 See also e.g., Hernandez v. Texas, 347 U.S. 475 (1954) (striking down Texas’s systematic exclusion of persons of “Mexican descent” from jury service); LULAC v. Perry, 548 U.S. 399, 439 (2006) (recounting Texas’s “long history of discrimination against Latinos”).
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Local officials, like Plaintiffs here, know better how to ensure that discrimination does not occur. Yet, in clear violation of equal protection, SB 4 prevents local entities from taking preventive steps to avoid the “serious risk” of violating the Constitution. Schuette, 134 S. Ct. at 1633 (Kennedy, J.).
2. SB 4 also effects a “[s]weeping and comprehensive . . . change in legal status” for millions of non-citizens in Texas, as well as those who may appear to be non-citizens to those who make incorrect assumptions). Romer, 517 U.S. at 627. Whereas all others groups can petition their local jurisdictions to adopt policies that protect them from discrimination, unlawful stops, and other constitutional harms, non-citizens are now broadly disabled from seeking such policies. Instead, “no matter how local or discrete the harm,” non-citizens (and those perceived to be foreign) must now convince a statewide electorate that their rights are worthy of protection too. Id. at 631 (“the amendment imposes a special disability upon those persons alone”).
States may not enact these kinds of “targeted” burdens. Schuette, 134 S. Ct. at 1632. For instance, in Seattle, a state law blocked local officials from enacting local desegregation policies. The Supreme Court struck it down because the law “place[d] special burdens on the ability of minority groups” to seek protective local policies. That is precisely what has occurred here. SB 4—a state law—prevents local officials and residents from enacting local policies to protect non-citizens and minorities who may be profiled.
Similarly, in Romer v. Evans, 517 U.S. 620 (1996), a state law blocked local residents and officials from adopting local anti-discrimination policies that protected gays and lesbians. The Court struck it down, emphasizing that the law “impose[d] a special disability upon those persons alone” in preventing them from enacting local laws to prevent discrimination. Id. at 631; cf. Hunter v. Erickson, 393 U.S. 385, 391 (1969). SB 4 similarly
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violates the Equal Protection Clause by singling out a discrete, vulnerable group and taking away their local protections against concrete harms.
The special burden imposed by SB 4 is even less defensible than the “special disability” imposed in Romer, because there the state had not targeted any suspect class. 517 U.S. at 632. Texas, however, has targeted non-citizens, whom states have no valid interest in treating worse than anyone else (and the law will inevitably have a disproportionate effect on minority groups). Cf. Graham v. Richardson, 403 U.S. 365, 372 (1971) (holding that state “classifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny,” because “[a]liens are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate”) (citation omitted).
SB 4 cannot stand under these principles. Just like the laws in Romer, Seattle, Hunter, and Reitman, it “withdraws from [non-citizens and those appearing to be non-citizens], but no others, specific legal protection from the injuries caused by discrimination [and unlawful arrests], and it forbids reinstatement of these laws and policies.” Romer, 517 U.S. at 627. Equal protection does not allow that kind of targeted burden.
F. SB 4 Has Serious Implications For Voting Rights And Tenth Amendment Principles.
1. SB 4’s removal provisions raise serious voting rights concerns because of the removal provisions. The Fourteenth Amendment protects the right to vote as a fundamental political right. Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). It is well established that “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn, 405 U.S. at 336. The Equal Protection Clause protects against laws that discriminate between similarly
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situated individuals, or groups of individuals, in the exercise of their fundamental rights. Mayor Reyes, Sherriff Schmerber, Constable Hernandez, and individual members of
LULAC are registered electors and voters in the state of Texas and in their respective municipalities and counties of residence. Local Gov’t Code Sec. 24.023 entitles each voter in a Type C General Law municipality, including El Cenizo, to vote for a mayor of the municipality. Texas law also entitles each voter to vote for a Sheriff and Constable for the county in which he or she lives. SB 4 violates the Equal Protection Clause by diluting the equal right to vote to residents in municipalities (including El Cenizo) and counties (including Maverick County) that have passed a sanctuary city-type resolution or ordinance. SB4 conditions the right to continue serving as an elected official—including in the elected offices of mayor, sheriff, and constable— upon officials’ perceived unwillingness to enforce detainer requests or respond to notification requests from the federal government, regardless of the legality of the requests. It effectively revokes Plaintiffs’ fundamental right to vote on an equal basis with other Texas residents by stripping authority from duly elected local officials in Sanctuary Cities.
2. The Tenth Amendment protects state and local governments from being commandeered to administer federal regulatory programs. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144, 174-183 (1992). This protection applies not just to states, but also to local officials. See Printz, 521 U.S. at 931 n.15 (holding that county sheriffs, not just state entities, were protected from federal commandeering). As a result, local officials have their own “prerogative to reject” the unlawful imposition of federal duties “not merely in theory but in fact.” Nat’l Fed. of Indep. Business v. Sebelius, 132 S. Ct. 2566, 2605 (2012) (plurality opinion of Roberts, J.) (quotation marks omitted).
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The State of Texas, moreover, cannot preemptively waive its localities’ anticommandeering rights. In New York, the Court rejected the federal government’s argument that “state officials [had] consented” to press their own agencies into federal service. 505 U.S. at 180-82 (“[T]he departure from the constitutional plan cannot be ratified by the ‘consent’ of state officials.”). It explained that commandeering protections do not exist “for the benefit of the States or state governments as abstract entities.” Id. at 181. Instead, state officers are protected from federal control “for the protection of individuals,” id. (quotes omitted), because decentralization “reduce[s] the risk of tyranny and abuse.” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
SB 4 seeks to waive Plaintiffs’ anti-commandeering rights. It orders local law enforcement agencies to “fulfill any request made in [a] detainer request provided by the federal government.” Tex. Code Crim. Proc. art. 2.251(a)(1) (emphasis added). It likewise forbids local law enforcement agencies from rejecting demands made by federal immigration officials. See Texas Gov’t Code § 752.053(b). Texas may not subject local entities to plenary federal control in the manner in which SB 4 operates, thereby blurring the lines of accountability that the Tenth Amendment serves to protect. See Printz, 521 U.S. at 930 (holding that local sheriffs should not be forced “to absorb the costs of implementing a federal regulatory program” or “put in the position of taking the blame for its burdensomeness and for its defects”). Doing so denies local communities “the liberties that derive from the diffusion of sovereign power.” New York, 505 U.S. at 181 (quotation marks omitted); see also Printz, 521 U.S. at 922 (warning of “the risk of tyranny and abuse” if the federal government could “impress into its service . . . the police officers of the 50 States”).
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II. SB 4 Will Cause Irreparable Harm to Plaintiffs. There can be no dispute that Plaintiffs will suffer irreparable injury should SB 4 go into
effect. As Plaintiffs have shown, SB 4 will violate their constitutional rights in numerous ways, which, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (addressing First Amendment harms). Where “‘an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)).
SB 4 also threatens numerous other irreparable harms to Plaintiffs, including incarceration, loss of employment, and fines. Mayor Reyes, Sheriff Schmerber, and Constable Hernandez therefore face grave consequences for exercising their First Amendment rights or ensuring that their localities comply with constitutional standards.
Moreover, SB 4 intrudes on localities’ reasoned judgments, based on their superior understanding of local contexts, about how best to distribute their scarce resources. See Hernandez Decl., ¶¶ 12-15; Reyes Decl., ¶¶ 15-17, ¶ 24; Schmerber Decl., ¶¶ 10-14. SB 4 also undermines their efforts to build community trust in law enforcement. See Reyes Decl., ¶¶ 1819, ¶¶ 21-22; Schmerber Decl., ¶¶ 21-22. If SB 4 goes into effect and destroys that trust, no after-the-fact judicial remedy can restore it.
Plaintiff Texas LULAC’s individual members also face irreparable injury in the form of unlawful stops, arrests, and extended detentions. Indeed, the legislation’s mere passage, combined with the state’s public messages on immigration enforcement, has already begun adversely affecting Texas LULAC’s Latino members. See Torres Decl., ¶¶ 11-18.
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III. The Balance of Hardships And The Public Interest Favor A Preliminary Injunction. The balance of hardships weighs heavily in favor of a preliminary injunction. The status
quo is that localities can choose how and when to use their scarce resources to enforce federal immigration law. An injunction will simply leave that status quo in place until the Court can make a deliberate decision on the legality of SB 4.
Moreover, any injury to the State pales in comparison to the numerous and serious harms that Plaintiffs will suffer should SB 4 go into effect. Plaintiffs’ requested relief would not prevent Defendants from promoting their stated goal of increasing cooperation with federal immigration authorities; it would merely require them to do so in compliance with the Constitution and federal law.
The public interest also supports preliminary relief here. SB 4 would require localities and police departments to divert their limited personnel away from their existing law enforcement efforts, and toward immigration enforcement activities that they are ill-equipped to handle. See Reyes Decl., ¶ 28; Schmerber Decl., ¶¶ 18-20. Thus, SB 4 will make their communities less safe, not more. And “the public interest always is served when public officials act within the bounds of the law and respect the rights of the citizens they serve.” Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 93 (5th Cir. 1992) (quoting district court below).
CONCLUSION For the foregoing reasons, the Court should preliminarily enjoin SB 4.

Dated: June 5, 2017
Lee Gelernt Omar C. Jadwat Andre I. Segura Spencer E. Amdur

Respectfully Submitted,
/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR.
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AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org
Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org
Cecillia D. Wang Cody H. Wofsy Stephen Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org

& ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

*Pro Hac Vice Forthcoming

Attorneys for the Plaintiffs

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CERTIFICATE OF SERVICE

I, Luis Vera, Jr., hereby certify that on June 5, 2017 copies of this Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction were electronically filed via the Court’s CM/ECF system.

Dated: June 5, 2017

/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net

Case 5:17-cv-00404-OLG Document 24-2 Filed 06/05/17 Page 1 of 37

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L. :

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct.3-1 Mario A. Hernandez, and League of :

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In :

His Official Capacity), and Texas Attorney :

General Ken Paxton (In His Official

:

Capacity)

:

:

:

Defendants.

:

-------------------------------------------------------------

DECLARATION OF ROXANA C. BACON

I, Roxana C. Bacon, hereby declare:

I make this declaration based on my own personal knowledge, and if called to testify, I

could and would do so competently as follows:

1. I served as the Chief Counsel for the United States Citizenship and Immigration

Service (USCIS) in the Department of Homeland Security (DHS) from October 2009

until December 2010. As Chief Counsel, I managed the USCIS lawyers throughout

the United States, provided counsel to the Director of USCIS, participated in policy

discussions among DHS immigration agencies, and drafted memoranda regarding

administrative/executive options to statutory reform, including DACA-type

discretion.

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2. I received my Bachelor’s degree from the University of California at Berkeley, and my J.D. from the University of California at Berkeley Boalt Hall School of Law. My C.V. is attached as Exhibit A.
3. Prior to serving as Chief Counsel for USCIS, I spent over thirty years practicing immigration law at various law firms.
4. I have been teaching immigration law since 1979; I have taught at the Arizona State University College of Law as well as at the University of Miami Law School. I now teach immigration law at the University of Miami School of Law.
5. The Plaintiffs have asked me to provide my opinions concerning SB 4 and the immigration status determinations that local law enforcement officials will be required to make. I have read and reviewed SB 4 and related provisions of the Texas code.
6. SB 4 increases local law enforcement involvement in determinations of immigration status in two ways. First, SB 4 forbids local government from prohibiting officers from investigating an individual’s lawful status during stops and detentions. This will lead to more status investigations and may lead to policies mandating such status investigations. Second, SB 4 requires officers to determine if a person is a U.S. citizen or has “lawful immigration status” as a prerequisite to complying with requests from the federal government to detain an individual.
7. Allowing local law enforcement officers, during routine traffic stops or other infractions and during arrests, to inquire about and investigate place of birth and immigration status will lead to unnecessary delays and prolonged and wrongful detention, inevitable errors in identifying immigration status and rights, and an
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increased likelihood that local officers will rely on impermissible factors, such as race or ethnicity, in making such determinations. 8. As explained in detail below, there are several reasons why SB 4 is problematic with regards to immigration status determinations. 9. First, there is no one definition that establishes when an individual has “lawful immigration status” in the United States. 10. The Immigration and Nationality Act (INA) does not contain a definition or category that establishes when an individual has “lawful immigration status” that could be used in the administration of SB 4. In federal immigration practice, an individual’s “immigration status” is generally understood to refer to particular federal immigration classifications under which an individual was admitted. This applies, for example, to individuals admitted as “non-immigrants,” or those admitted temporarily for reasons defined by statute; those admitted as “immigrants,” or permanent residents (generally known as “green card holders”); and other, more limited classifications established by federal law (i.e., temporary protected status, or TPS). Even when a noncitizen lacks formal immigration status, it does not necessarily mean that their presence in the United States is unauthorized. This is because our federal immigration system distinguishes authorized presence from formal immigration status, and treats them as distinct. 11. Second, there are a variety of different circumstances where a person may be in the country without a formal immigration status without being subject to removal and may also not have documentary evidence of that fact. Many individuals are permitted to remain and work in United States, despite the fact that they may not have a
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recognized immigration status or classification. Furthermore, there is no federal immigration classification that covers all individuals who the federal government has allowed to remain in this country in the course of the proper administration of the immigration laws. 12. For example, people with pending applications for asylum or adjustment of status may be authorized by DHS to remain in the United States and granted employment authorization although they lack status. The same is true of certain survivors of domestic violence who have filed petitions under the Violence Against Women Act (VAWA). Individuals required to be released from indefinite detention have no formal status under federal immigration law, but have a constitutional right to remain undetained in the United States. Other individuals may obtain deferral or withholding of removal in under the Convention Against Torture, allowing them to stay in the United States without a formal immigration status. 13. Deferred action operates in a similar manner: individuals who receive deferred action have no formal immigration status, but they have received permission by the federal government to remain in the United States for a given period of time. They have, in effect, per se legal authorization to reside in the United States. Deferred action allows the federal government to authorize the presence of individuals who would otherwise be subject to removal. For example, the federal government may grant deferred action for a period of one year to an undocumented immigrant whose testimony is required for a criminal prosecution. This serves to authorize the individual’s presence for the given period and enables the government to move forward with the prosecution of a crime.
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14. Third, determining whether an individual has lawful immigration status is a complex legal inquiry, governed by a wide range of federal statutory and regulatory provisions.
15. The determination of an individual’s immigration status is a convoluted determination that local law enforcement officers are unable to make. Requiring local officials to make this determination can lead to the wrongful detention of individuals who, for a variety reasons, may not be able to demonstrate or prove that they have some immigration status or are not subject to being removed or arrested for immigration violations, including, for example, lawful permanent residents; individuals with nonimmigrant visas, such as employment visas; U-visas and T-visas; individuals who are in the process of adjusting their status; and other individuals who may be in the United States lawfully due to TPS, parole, orders of supervision, deferred action, VAWA, release after prolonged detention, withholding, and asylum.
16. In many cases, individuals will not have clear documentation to demonstrate their status and local officials are not trained to make determinations based on immigration documentation. Certain immigration documents would not provide an untrained official with evidence that they are lawfully present, and may instead convey to an untrained official that they are removable. Further, citizens are not required to carry proof of citizenship, increasing the risk that citizens suspected of being present unlawfully will be detained.
17. Fourth, federal immigration officials also exercise discretion in determining who is subject to being removed or detained, and in the general administration of immigration law. Local law enforcement officials do not have the authorization or
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training to determine whether or not a person should be subject to removal or detained or arrested for immigration violations. 18. What follows is a non-exhaustive and more detailed explanation of the complexities of immigration law and why it is impractical for local law enforcement officers to assess status accurately. 19. My conclusions are based on a number of factual and experience-based factors which will be discussed separately in order to show both the stunning and bewildering complexity of the laws that law enforcement officers would have to understand at an expert level to interpret the responses to any interrogation about immigration status. 20. Furthermore, there is no one database in which all immigration information is contained. Different federal agencies have access to different systems and databases, whereas local law enforcement officers do not. Even upon contacting federal officials, there is no one database that can be quickly accessed in order to determine if there is any basis on which the individual is lawfully present or potentially in violation of federal immigration laws. 21. SB 4 creates the risk of the wrongful detention of U.S. citizens. 22. United States citizens are not required to carry proof of citizenship under U.S. or Texas law. In addition to persons born in the U.S., certain persons born outside of the country are citizens under an intricate scheme of naturalization and derivative and acquired citizenship. See generally Daniel Levy, U.S. Citizenship and Naturalization Handbook, § 1.1 (Charles Roth ed., 2016–17 ed.).
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23. For example, persons born abroad may naturalize to obtain citizenship. See 8 U.S.C. § 1421 et. seq. (2012). In fact, there are more than a dozen ways that a non-citizen may naturalize. Levy, U.S. Citizenship and Naturalization Handbook, § 1.1
24. Others may acquire citizenship through one or both of their parents. See 8 U.S.C. § 1401. Acquired citizenship depends on the year the citizen was born, whether one or two parents is a citizen, the marital status of the parents, and their length of residence in the U.S. In border states such as Texas it is not unusual for persons to have acquired U.S. citizenship from their grandparents through the chain of grandparent to parent to child. See Lee J. Teran, Mexican Children of U.S. Citizens: “Viges Prin” and Other Tales of Challenges to Asserting Acquired U.S. Citizenship, 14 The Scholar: St. Mary's Law Review on Minority Issues 583, 587–88 (2012).
25. Still others may derive citizenship through the citizenship or naturalization of one or both parents. 8 U.S.C. § 1431.
26. In all of these cases, the citizen who is stopped or arrested may not even be aware of his or her acquired U.S. citizenship, even though absolute legal protection from any DHS immigration action is guaranteed by citizenship.
27. A person is not required and normally would not carry her birth certificate, U.S. passport, naturalization certificate or certificate of citizenship with her, much less the chain of birth certificates and residency records to prove U.S. citizenship through more than one generation, so providing proof on the spot is unlikely.
28. Given these complexities of citizenship status, a law enforcement officer could easily, albeit mistakenly, prolong detention of a U.S. citizen after learning that she was born in a foreign country.
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29. SB 4 creates the risk of the wrongful detention of individuals with legal immigration status.
30. The Immigration and Nationality Act, 8 U.S.C. § 1101, et. seq. sets up a bifurcated system of immigrant and non-immigrant categories. In addition, the statute and related regulations create numerous other complex, temporary categories and statuses that allow persons to be lawfully in the United States, as discussed below.
31. This myriad of options for foreigners reflects the fact that Congress uses immigration laws to support U.S. policy across many national interests, including international trade, economics, education, politics, anti-discrimination, religious freedom, scientific research, the arts, national security, family relationships, humanitarianism, and even the consequences of environmental changes. To reduce those policy options to a quick assessment of immigration status by untutored officers and single dimension systems is akin to asking one’s DNA code based on eye color. It is so simplistic that it guarantees major errors.
32. Lawful permanent residents, commonly referred to as “green card” holders, are considered immigrants under the immigration laws. They are issued an I-551 laminated document as proof of status. The card is valid for ten years, but the status is permanent. While producing an I-551 permanent resident card may satisfy a Texas officer, not every green card holder has the document. During the time USCIS renews the document, the person may only have a receipt or may be waiting to receive a receipt. Further, the filing fee to renew, replace a lost card or obtain a new card because of a name change is $540.00 with additional charges for photographs, a cost that can be prohibitive for some permanent residents. In addition, USCIS has its
8

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own problems with renewals, including delayed processing times that increase the chances of lost filings and receipts. 33. Currently it takes approximately seven months to obtain a new card. The processing times vary greatly depending on allocation of resources within USCIS, but they are growing longer. During the renewal period, the only proof of lawful status is a receipt from USCIS, that may be printed or electronic, and that makes no reference to legal status or an extension date. A person who does not carry the receipt (not required by law) or have access to an electronic filing notice might be subject to prolonged detention by a confused local law enforcement officer attempting to discern immigration status. 34. The critical fact for SB 4 purposes is that even though the permanent resident card expires every ten years and even if the permanent resident fails to renew or loses her card, she continues to be a lawful permanent resident, regardless of whether she has proof of status. 35. Major additional problems occur with lawful permanent residents who apply for permanent resident status abroad. Numerically, this is a larger group than those who are able to “adjust their status” to permanent residents without leaving the U.S. The largest U.S. Consulate that processes immigrant visa applications is located in Ciudad Juarez, where all Mexicans must apply for permanent residence status. In 2016, the Ciudad Juarez Consulate issued 89,428 immigrant visas. Department of State, Summary of Visas Issued by Issuing Office Fiscal Year 2016, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualRe port/FY16AnnualReport-TableIV.pdf (last visited June 1, 2017). Lawful permanent
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residents who obtain their status at a U.S. Consulate enter the U.S. with an immigrant visa stamp in their foreign passport, not with the laminated I-551 document. 36. A permanent resident granted status at a U.S. Consulate is given a visa stamp generally valid for six months when she presents herself for entry at the border. A request is sent by the admitting DHS officer to USCIS to manufacture the I-551 permanent resident card. That process can take months, often longer than the temporary stamp date. Regardless of DHS bureaucratic issues, or the lapse of the stamp date, the individual is lawfully in the U.S. Neither a Texas officer nor an ICE officer would necessarily know about these seeming details that are actually dispositive of status. 37. Additionally, errors in the name on the I-551 are frequent, especially in Hispanic cultures, since any change in marital status results in a name change in which some of the maiden name remains while a new “last name” is taken. Given the common surnames in Hispanic culture, the loss of a “Gonzales” or the addition of a “Rodrigues” with the first name of “Juan” or “Maria” can lead to hundreds of false responses when checking any immigration database. Similarly, the legal names of children born of two Hispanic parents incorporate both parents’ names in a sequence not used in non-Hispanic culture. While I was USCIS Chief Counsel, the name confusion was highlighted as a chronic issue in both developing and maintaining databases. 38. The complexities continue. Lawful permanent residents who obtain status based on a marriage of less than two years duration to a U.S. citizen obtain conditional permanent residence status. 8 U.S.C. §1186a. This status is only valid for two years,
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and the I-551 permanent resident card has a two-year expiration date. Upon expiration, the conditional permanent resident must apply to remove the conditions on her permanent resident status. The filing fee for the application to remove the conditions of conditional residence status is $680.00, a cost that at times is beyond the reach of the immigrant so that removal requests are not always timely. 39. While the conditional resident is filing to remove the two-year limitation, a process that currently takes more than eight months, she only has a receipt from USCIS to show that the application has been filed and that status has been extended for a year. A line ICE officer, who has no role of any kind in the processing or adjudication of any petition or application for permanent resident status, would not be familiar with these conditional removal documents. 40. Similarly, a lawful permanent resident who obtained her “green card” through an EB5 investment (one of the “employment-based” immigration categories) has a similar conditional resident status period and is subject to the same prolonged procedure for removing the conditions. 8 U.S.C. § 1153(b)(5). Although there are thousands of individuals in the “EB-5 conditional removal step,” a Texas officer would have little exposure to them, since they have absolutely no contact with the filing, processing, adjudication or follow-up of EB-5 status. 41. A Texas law enforcement officer could easily prolong detention of a permanent resident after learning that a person was born in a foreign country in an attempt to understand the person’s immigration status or even to alert immigration officials. Escalating the issue to ICE is not a guarantee of either a quick or accurate response since permanent resident processing is not within ICE’S jurisdiction, expertise or
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authority. There is no “hotline” between USCIS and ICE to escalate questions of a person’s status, and the USCIS internal escalation process to make a definitive conclusion regarding status can take more than a month. In addition, other Cabinetlevel agencies (DOL, Health and Human Services, OITR) have their own databases that include immigration-related information not accessible to ICE but that impacts the lawful presence of an individual migrant. 42. SB 4 creates the risk of the wrongful detention of individuals with nonimmigrant visas who are lawfully present in the United States. 43. Millions of foreign-born persons are in the U.S. at any given time with nonimmigrant visas. There are twenty-three non-immigrant visas that allow non-citizens and their spouses and children to enter or remain in the U.S. for varying lengths of time. 8 U.S.C. § 1101(a)(15)(A)–(V). Each category has separate rules and guidelines for their grant, maintenance, and termination, and jurisdiction for such adjudications lay primarily with USCIS, with a small percentage under the authority of the Department of State (DOS). ICE is not involved in a non-immigrant visa holder’s status processing, adjudication, extension or termination. To make matters more complicated, even after the original period for a non-immigrant visa ends, nonimmigrant visa holders may remain in the U.S. lawfully while they pursue an extension of stay or a change of status to another non-immigrant visa category. 8 C.F.R. §§ 214.1, 248.1. Under this provision, the person receives permission to remain in the U.S. without having to obtain a new visa from a U.S. Consulate abroad. While this process is pending, the non-immigrant’s date of authorized stay noted on her immigration document (Form I-94) is not extended, although she still has lawful
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status by operation of regulation. Frequently, USCIS, which is exclusively in charge of all extension and change of status requests, has processing times in excess of six months. Even longer delays have been known to occur, and with the current reduction of USCIS personnel are likely to become commonplace. However long the processing time, and however faulty the underlying receipts, the person seeking the benefit is considered by law to be in status, i.e., lawfully present in the U.S. 44. A Texas or ICE law enforcement officer, unfamiliar with these complicated rules, could erroneously conclude that a person awaiting an extension or change of status was in the country unlawfully. 45. Other non-immigrant categories do not have a clear expiration date on their immigration documents. For example, F-1 visa holders (students), J-1 visa holders (exchange visitors), and M-1 visa holders (vocational students) are admitted for “duration of status,” an administrative convenience which allows them to remain in the U.S. for the period of time necessary to complete their studies or activities. 8 C.F.R. §§ 214.2(f)(5)(i), (j)(1)(ii), (m)(5). Their I-94 entry or status document contains no expiration date, but instead is annotated as “D/S.” Even after completing their course of studies, by regulation, these visa holders are allowed an additional 30– 60 days to depart the United States. 8 C.F.R. §§ 214.2(f)(5)(iv), (j)(1)(ii), (m)(10)(i). Further, some students can obtain automatic work authorization related to their studies and others can obtain permission to work on campus. Some work authorizations require a separate USCIS document and others do not. Some extension or status decisions are made by the Department of and some are not. Only
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a seasoned expert can decipher the validity of a student status in all but the most ordinary circumstances. 46. Canadians present another perplexing set of rules. Canadian citizens may enter the U.S. as visitors for pleasure or for business without obtaining a visa from a U.S. Consulate. 8 C.F.R. § 212.1(a); 22 C.F.R. § 41.2(a). They are automatically admitted for a period of six months, but are given no immigration document to prove their status or their entry and required departure date. Again, Texas ICE officers are not likely to be familiar with the unique rules regarding Canadians although there are many in Texas, especially during winter. 47. The most frequently used of the non-immigrant temporary work categories, known as H-1B, presents many unique problems for verifying status. First, the employer identified on the receipt may not have the same name or address as the employer where the immigrant works each day. Associations, holding companies, partnerships, even labor contracting agencies are all eligible to sponsor the H-1B immigrants, and second them to certain co-employers. Indeed, this aspect of the H-1B category is managed by yet another Cabinet-level federal agency, the Department of Labor, Alien Employment Certification (AEC). The AEC also manages the labor pool testing for H-2A and 2B temporary worker categories; neither USCIS nor ICE plays a role in determining what employers are properly included under the primary employer’s umbrella. A Texas officer would not know such nuances, and an ICE officer, who by law does not process and of the “H” petitions, would also see the different employer information and likely conclude that an impropriety has occurred. This erroneous assumption would cause delay, irrelevant inquiries, and even possible detention.
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48. Not only may H-1B non-immigrants have different employers noted on their key documents, but those who have spent an extended period of time in the U.S. and whose employers are considering filing for permanent resident status for them are granted the right to change employers (known as “portability”) within the same job family without prior USCIS or DOL approval. Such a seeming anomaly would not be within either the Texas or ICE officer’s knowledge base.
49. Non-immigrant status based in part on international treaties pose especially tricky assessments. A Canadian in Texas under NAFTA has a non-visa status, known as “TN,” issued at the border. She does not need the same level of supporting documents as an H-1B temporary worker, but is entitled to live and work in the U.S. indefinitely, in grants of one or two years. The document she presents may vary from a passport notation to an entry document that has no “visa category,” and no expiration date. Further, she may change employers without notifying USCIS; she can simply leave the U.S. and re-enter with a new sponsor. None of this information would be familiar to a Texas officer or even ICE since ICE does not handle any aspect of immigrant or non-immigrant visa/status processing.
50. While NAFTA includes immigration provisions for both Canadians and Mexicans, Mexicans under NAFTA are treated entirely differently from Canadians in terms of immigration benefits, filing procedures, and evidence of status. Their processing is akin, but still different than, H-1B procedures. Again, such variations are not likely to be known to Texas officers or ICE, but they do occur, and make immigration status verification knotty, if not impossible.
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51. Two other categories of non-immigrant visas depend on international treaties that can be changed by the DOS or the Office of the United States Trade Representative (USTR), yet another Cabinet-level agency with authority over aspects of immigration, without changing the underlying immigration statute. Such visas automatically involve the other nation signatory to the treaty, and questions about a person holding such a visa raise issues that are handled by USCIS, DOS, or USTR, not ICE or a Texas law enforcement officer. These “E Visa” categories concern treaty investors or traders, and their employees. Only citizens of certain countries may hold such visas, and their designation is integrated into our international treaties of Trade Commerce and Friendship. 8 U.S.C. § 1101(a)(15)(E); 8 C.F.R. § 214.2(e). These categories have a variety of authorizations for what their holders may do and for how long. Without knowledge of the treaty category and its specifics, it would not be possible to identify whether the person is operating within the allowed framework or not. No ICE or Texas officer would have that knowledge and could not acquire it in any general training course, and yet because the category concerns international relations and persons investing significant sums in the U.S., it is a complex inquiry where investigative delay is especially offensive.
52. Similarly, the J visa category, 8 U.S.C. § 1101(a)(15)(J), is so complex private practitioners consider it a specialty that is often done to the exclusion of other types of immigration law. J visas are also based on treaties with other nations, and are available to scholars, researchers, professors, students at advanced and undergraduate levels. It is also the exclusive path for foreign doctors, except for certain exemptions for Canadian doctors, to obtain licenses and ultimately visas that allow them to
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practice medicine in the U.S. Each of these sub-categories has separate rules and requirements, some of which are managed by yet another Cabinet-level federal agency, the Department of Health and Human Services (HHS), some by state health organizations and some by universities. None of the underlying information necessary to evaluate status is readily available to ICE, nor within their expertise, much less that of Texas law enforcement officials, and yet Texas has thousands of scholars, professors and physicians holding J visas. 53. U visas are another complex visa category, available for victims of certain criminal activity who have been or are likely to be helpful to law enforcement. 8 U.S.C. § 1101(a)(15)(U). By law, there are only 10,000 visas available each year in this category. If the annual 10,000 visa cap is reached, the applicant is placed on a waiting list, provided a Notice of Conditional Approval, and granted either deferred action or parole, statuses discussed below in this affidavit. 8 C.F.R. § 214.14(d)(2). This Notice is proof of lawful status, although there is little chance that Texas officer or even an ICE officer would be familiar with it. U visa applicants who have final orders of removal may request a stay of removal that should be considered favorably by DHS. Memorandum from Peter S. Vincent, Principal Legal Advisor, U.S. Immigration and Customs Enforcement to OPLA Attorneys (Sep. 25, 2009), https://www.ice.gov/doclib/foia/dro_policy_memos/vincent_memo.pdf. Arresting or detaining someone who is in a U visa process likely would be catastrophic to the criminal case or on-going investigation as well as to the individual. 54. Victims of severe trafficking, who comply with law enforcement’s request for assistance in prosecution or investigation of trafficking crimes, are eligible for T
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visas, a category rife with complexity. 8 U.S.C. § 1101(a)(15)(T). Even before approval of the visa, if USCIS determines that the application is bona fide, the agency will automatically grant an administrative stay of removal until final adjudication. 8 C.F.R. § 214.11(d)(1)(ii). Information regarding the applicant is confidential and may only be disclosed to law enforcement in a manner that ensures the confidentiality of such information. 8 C.F.R. § 214.11(p); 8 U.S.C. § 1367(b)(2). This confidentiality provision further complicates a state officer’s interrogation about immigration status. Only 5,000 T visas may be issued each year. If this annual cap is reached, applicants are issued a written notice and placed on a waiting list. 8 C.F.R. § 214.11(j). This Notice operates as permission for the person to stay lawfully in the U.S., a fact that would not be readily known by a Texas or ICE officer since they are not the processing or issuing sub-agency. 55. For obvious reasons, U and T visa categories (victims of crime or informants for law enforcement) are subject to specific confidentiality requirements that further complicate open discussions with Texas or ICE officers, neither of whom is the adjudicating agency for either category. 8 U.S.C. § 1367. 56. SB 4 may cause the detention of individuals who are legally in the United States pending adjustment of status. 57. Persons who are in the process of applying for lawful permanent residency through adjustment of status, 8 U.S.C. § 1255, a large category numerically, pose an especially difficult group for determining immigration status. Such persons are allowed to remain in the U.S., pending an adjudication of their application, even after their non-immigrant status and their I-94 immigration document have expired. Not
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all of these persons would have proof of their lawful status in U.S., and those documents that they do possess may be unfamiliar to ICE officers as well as local law enforcement officials. For example, they might only have a filing fee receipt (Notice of Action) with no additional information and because it is their only proof of lawful status, they would not be likely to carry this document with them for fear of loss or theft. The delays in processing the underlying “green card” or employment authorization card, pursuant to a pending application, can exceed one year. Again, however long the bureaucratic delays, the applicant is lawfully present in the interim, but without any easy way to prove that fact. 58. Another common scenario involves applicants for permanent resident status based on employment with a U.S. company. Often such persons have a valid non-immigrant category but are applying for permanent residency. Changing from such nonimmigrant categories as student, visiting scholar, or temporary worker is allowed, even encouraged, in the law. Documenting the applicant’s lawful presence in the U.S. during the processing of such an “adjustment of status” is, however, not easy. Due to the esoteric features in each category and the long processing times, the underlying documents proving the person is lawfully in the U.S. are multiple, confusing, and at times inconsistent. For example, a common problem occurs when the non-immigrant category document, often an H-1B form, shows a different employer than the one sponsoring the green card. That is a perfectly lawful situation, but one that perplexes those not steeped in the non-deportation side of U.S. immigration law. Further, an immigrant may hold a valid H-1B or J visa while simultaneously holding receipts and work authorizations for permanent resident
19

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status. The number of authorizations, and the fact that they confirm simultaneous immigrant and non-immigrant status, would confuse a line ICE officer trying to make an assessment of lawful presence in the U.S., and simply be beyond the reach of a line Texas officer. Yet from a real-life immigration perspective, on any given day there are several hundred thousand H-1Bs alone in this “adjustment” category. 59. Thus, a Texas or ICE law enforcement officer, unfamiliar with adjustment of status procedures would be unable to ascertain a person’s status, which could lead to prolonged detention. 60. SB 4 may also cause the detention of individuals with other lawful statuses. 61. There are many other lawful statuses that fall outside the statute’s 23 enumerated non-immigrant visa categories. Each of them presents complex to impossible problems for a Texas officer or an ICE officer responding to the Texas officer’s inquiries. The most common of these categories are “temporary protected status,” or “TPS,” “orders of supervision,” “parole,” and “deferred action.” 62. Temporary Protected Status (TPS) is a lawful status granted to citizens of designated countries because of a natural disaster or armed conflict. 8 U.S.C. § 1254a. DHS normally designates these countries (usually at the request of the other foreign nation involved in the situation) for a period of eighteen months. TPS is a category that involves international relations and policy at the highest levels of U.S. government. If DHS extends TPS for an additional time period, applicants must re-register for TPS. 63. However, because of the volume of applications, DHS automatically extends TPS status for six months during the re-registration period. The extension is published in
20

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the federal register and on the DHS website. Thus, the TPS holder has an expired immigration document, even though DHS has extended her stay during the reregistration period. This Administration’s recent actions in regard to TPS Haitians are particularly difficult for any Texas or ICE officer. Although agreeing to extend TPS for Haitians again, the decision was to extend for only six months. Since the blanket “grace period” is six months, it is not clear how overlapping extension requests and automatic grace period grants will be identified or what documents will suffice to prove lawful presence. ICE is not a part of those considerations; they reside with USCIS. 64. A local law enforcement officer would be unfamiliar with this automatic extension process, published only in the federal register and on the DHS website. In addition, the delays in extending TPS for all designated countries are growing. 65. “Parole” is a decision by DHS, usually involving USCIS national headquarters but sometimes allowed at the more regional level, to admit a person into the U.S. who has no valid visa but who has an exigent circumstance that, in an exercise of discretion, warrants the admission. For example, paroles are granted for immigrants to care for sick children or close relatives, to attend funerals, to appear in court cases, to settle legal matters, to secure release from detention: all are within the domain of this discretionary power. Once given, parole can be extended by a local immigration office. Documentation about parole can include an I-94 entry document or, in some emergency cases, merely a letter. Grants of parole are seldom entered into any comprehensive database.
21

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66. “Orders of supervision,” 8 C.F.R. § 241.5, and stays of removal, 8 C.F.R. § 241.6, are similar to parole; they are used when a removal order is in place, but there are equitable reasons not to execute it. In the case of undocumented immigrants, they may have to appear before ICE officers periodically for “check-ins.” The documentation to prove the status can be minimal and may or may not include an employment authorization document.
67. In addition, through regulations and internal policy directives, other categories of non-citizens may still reside lawfully in the United States with or without permission to work. For example, deferred action allows a non-citizen to remain in the U.S. for a period of time designated by USCIS or ICE. Deferred action is not explicitly provided for under either the statute or the regulations. See, e.g., 8 C.F.R. § 274a.12(c)(14). “Deferred action” is the ultimate prosecutorial tool, allowing DHS to grant a variety of relief to those who would otherwise be subject to immigration enforcement.
68. President Obama used deferred action to craft relief from deportation for certain children whose presence in the U.S. began in childhood. His action is known as the DACA program. Currently over 200,000 persons in Texas hold DACA status. USCIS, DACA Statistics FY2016, Q3, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studi es/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performanc edata_fy2016_qtr3.pdf (last visited June 1, 2017).
69. DACA beneficiaries may be issued an employment authorization document for a period of two years. They may renew their status upon filing an extension application
22

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and paying a filing fee of $495.00. During the renewal period, the only proof of lawful status is the filing fee receipt, known as the Notice of Action. 70. While DACA involves an application process, prosecutorial discretion itself typically does not. Rather, it can occur informally, based on such immediate factors as Congressional or other political intervention, media pressure, compelling equities. Even immigration judges can find their orders for deportation halted by prosecutorial discretion, a situation that is seldom included in any database. 71. Survivors of domestic violence may apply for permanent resident status under the Violence Against Women Act (VAWA). 8 U.S.C. § 1101(a)(51); 8 U.S.C. § 1154(a)(1) et. seq. They are also granted deferred action pending the final adjudication of their cases. Proof of their deferred action status is a USCIS document that again may not be part of an ICE-accessible database, due to confidentiality protections for battered, and vulnerable, spouses. 8 U.S.C. § 1367. VAWA recipients may, but need not, apply for an employment authorization document. Few ICE officers are familiar with this process or documentation, and probably no Texas officers. 72. SB 4 may cause the detention of individuals who are eligible for Employment Authorization Documents. 73. Some non-citizens are eligible to apply for an employment authorization document (EAD) based on their immigration status. 8 C.F.R. § 274a.12 et. seq. The EAD, a laminated card, contains a photo of the applicant and an expiration date, usually between one and two years, depending on the underlying non-immigrant category. However, there is no requirement that a person eligible for an EAD apply for one.
23

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Further, its issuance and extensions are often delayed and depend upon the underlying qualifying non-immigrant category being extended. 74. To extend an employment authorization document, the non-citizen must pay a filing fee of $495.00. Because of the delay in adjudication, DHS automatically extends the EAD for certain categories for an additional six months. Notice of such extension only appears on the DHS website. USCIS, Automatic Employment Authorization Document (EAD) Extension, https://www.uscis.gov/working-united-states/automaticemployment-authorization-document-ead-extension (last updated Feb. 1, 2017). Thus, a non-citizen, who has filed to extend her EAD card, has no proof of lawful status, other than what is published on the DHS website. 75. SB 4 places persons in removal proceedings and those granted status by an immigration judge at risk of unlawful detention. 76. Many persons are present in the U.S. without documentation but are awaiting a court hearing before an immigration judge or an appeal at the Board of Immigration Appeals or in the federal courts. They may be challenging their removal (deportation) or seeking available relief from removal under the immigration statute such as asylum, cancellation of removal, or other benefits. They may even be filing statutory or Constitutional challenges to provisions of the law, immigration-centric Executive Orders, or the implementation of the law or its regulations. Some may be individually named and some may be included in class actions. In fact, there are over 585,000 cases pending in the immigration courts alone, and a current backlog in Texas of 99,690 cases, second only to pending cases in California. TRAC Immigration, Immigration Court Backlog Tool,
24

Case 5:17-cv-00404-OLG Document 24-2 Filed 06/05/17 Page 25 of 37
http://trac.syr.edu/phptools/immigration/court_backlog (last visited June 1, 2017). The current estimate for when an immigrant’s deportation case will actually be heard is approximately four years, and the delays are growing. 77. These individuals would not normally be rearrested by ICE because they have already been placed in removal proceedings and are allowed to remain in the community during those pending proceedings. However, the only documentation that a person in this category would have is the Notice to Appear (Form I-862), alleging the grounds for the removal proceedings. Non-citizens do not normally carry the Notice to Appear with them. 78. When a person is granted relief from removal, the immigration judge issues a short memorandum or a longer formal decision, pending the processing of immigration documentation (the I-551 card). The immigration judge cannot issue immigration documents related to such relief from removal. Instead, the non-citizen must apply to USCIS for evidence of status awarded by the judge. The process and wait for issuance of a permanent resident card or an employment authorization card can take many months, depending on the specific relief granted 79. If the person loses her case before the immigration courts, she may file a timely appeal to the Board of Immigration Appeals. Upon such filing, she receives an automatic stay of removal. She is not provided with any additional immigration documentation. If she loses before the Board of Immigration Appeals, she may file a petition for review to the Federal Circuit Court of Appeals and seek a stay of removal. Again, these procedures are outside DHS purview, residing solely within the federal court system. No DHS database automatically tracks them. Habeas petitions, and
25

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challenges to certain aspects of immigration law and its implementation are filed in Federal District Courts and may include stays of removal. Again, there is no ICE database of such judicial proceedings. 80. A non-citizen would not normally carry proof of the status of her case on appeal. Even if she did, a law enforcement officer would not be able to interpret or ascertain her immigration status from the appeal notice, and any effort to do so would almost certainly prolong detention without any legal basis. 81. SB 4 may also cause the unlawful detention of individuals who have been granted withholding of removal. 82. A person who is granted withholding of removal under 8 U.S.C. § 1231(b)(3), commonly known as “protection from harm” in the home country, is provided with a written decision from an immigration judge. The decision contains no expiration date and simply states that the person cannot be removed to the country from which she fears harm. Such a person is lawfully in the U.S., and detention or arrest violates her rights. 83. Such a person may, but need not, apply for an employment authorization document (EAD); even if she chooses to add this step, she must wait months for approval and issuance of the document. The employment authorization document is valid for a period of one to two years, despite the fact that the person continues to have indefinite withholding of removal status until it is formally terminated by the immigration judge, and only then upon a finding that she may be safely removed from the U.S. In the case of stateless persons, a situation more common than generally thought, withholding may be for a lifetime. A person may have an expired EAD then, but still
26

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be lawfully in the U.S. Further, while she is applying for withholding of removal before the immigration judge, she cannot be removed from the U.S., even though she has no proof of lawful status during proceedings. 84. SB 4 may also lead to the unlawful detention of individuals who have been granted asylum. 85. A person who is granted asylum under 8 U.S.C. § 1158 by the immigration judge is similarly issued a written decision. The administrative decision contains no expiration date. Such person may, but need not, apply for an employment authorization document, but doing so is the usual prolonged process. The employment authorization document is generally valid for a period of one to two years, despite the fact that the person continues in indefinite asylee status unless it has been formally terminated by the immigration judge. 86. While she is applying for asylum status before either an immigration judge or the Asylum Office of USCIS, she cannot be removed from the U.S., although she has no proof of lawful status. 87. The “A” file (alien registration file) is a near mythical creature. Supposedly a single archive of all data relating to a lawful permanent resident, in the real world the “A” file may be spread out among other DHS and other federal law enforcement agencies, may include both electronic and paper components, may be updated or not by the immediate user, and may not be returned intact. There are millions of “A” files going back decades, so what is described as “the complete file” seldom is. In my experience as USCIS Chief Counsel, a case that was actively involved in any one of the hundreds of immigration-related processing steps was seldom intact. Cases that
27

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had been sent for particular review by fraud detection experts or were involved in removal proceedings of litigation or involved an especially troubling adjudication were often spread out among different offices and officers. For Texas law enforcement or ICE, the incomplete nature of the records is a serious impediment to understanding a person’s immigration status; certainly, it is a shaky foundation on which to determine detention and possibly arrest. 88. Further, as mentioned above, some of USCIS’ files are subject to stricter privacy controls, especially those pertaining to refugees, VAWA (Violence Against Women Act), T and U visas and applicants for asylum, since open access to those person’s immigration information can place them in physical harm. Files kept by the Immigration Court are subject to yet a different database; housed not by DHS but by the DOJ, Executive Office of Immigration Review. If appeals are filed beyond the EOIR level, any files are the property of the particular Federal Court involved, and are not accessible by or coordinated with ICE or USCIS databases. 89. It is worth noting that decisions by immigration judges are often omitted from ICE files because the underlying cases are still in process. Such routine judicial orders as continuances, administrative closings, voluntary departure with extensions of same, and even grants of permanent resident status that may take a year to activate due to backlogs in the availability of visa numbers would likely not be part of any ICE officer’s routine inquiry. As discussed herein, the judicial database gap alone would affect thousands of persons who happen to be in Texas on any given day.
28

Case 5:17-cv-00404-OLG Document 24-2 Filed 06/05/17 Page 29 of 37 Executed in Rockport, New York

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EXHIBIT A

Case 5:17-cv-00404-OLG Document 24-2 Filed 06/05/17 Page 31 of 37
CURRICULUM VITAE ROXANA BACON 6114 N. 2nd. Avenue Phoenix, Arizona 85013 602 478 6380 roxie.bacon@gmail.com
Education:
University of California at Santa Barbara, 1961-1963, Honors at Entrance and California State Scholarship
Peace Corps Volunteer 1963-1965; trained at Notre Dame University, Puerto Rico and stationed for 2 years in Copiapo, Chile in the Atacama Desert. Established “head start” programs and mining cooperatives.
University of California at Berkeley, 1965-1967. B.A. in interdisciplinary honors major, Communication and Public Policy. Recipient, California State Scholarship.
University of California at Berkeley, Boalt Hall School of Law, 1971-1974. JD
Employment:
International Institute of the East Bay, 1965-1968. Designed, obtained funding and directed program matching new arrival immigrants from rural areas of Central and South America with politically active U.S. teenagers for 5 hours a week. Goal was to provide real life orientation to urban living for people who had extremely limited resources and no experience with bureaucracies. Program received Congressional recognition and had over 500 “matches”. In addition, more than 15 of the U.S. teenage volunteers received scholarships to continue their University education as a direct result of their work in the program.
San Francisco International Institute, 1968-1971. Social worker/community development manager with new arrival immigrant groups. Established out-reach programs in high schools and hospitals offering cultural and language translators to expedite services to this hidden population. Developed innovative group approaches [yoga and meditation, cooking events, dance classes] to counter isolation of mono-lingual, uneducated women recently arrived from Central America and rural Mexico. Continued teen-age matching program.
Jackson & Hertogs, San Francisco, CA 1971-1974. Clerked throughout law school [20-30 hours per week] with premier immigration law firm mentored by Joseph Hertogs and Z.B. Jackson, both national experts in the field.

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Jennings, Strouss & Salmon, Phoenix AZ summer 1973 and 1974-1984. Law clerk 1973, associate 1974 -1977, partner 1977 -1984. Specialized in all aspects of employment and labor law while developing immigration practice. First immigration practice in the state to provide services in business immigration law. Donated over 500 hours annually to low/no income family and refugee immigration cases.
Sacks, Tierney, Phoenix AZ partner 1984-1986. Managed and grew immigration law practice. Left with another partner to form own firm.
Daughton, Hawkins & Bacon 1986-1988 Owned, managed and grew law firm that offered immigration, employment and litigation services. Firm’s success led to its acquisition by national law firm seeking Phoenix presence.
Bryan Cave, 1988-1997. 1,000+lawyer firm based in St. Louis, Missouri. Partner, first woman Member of 15 person Executive Committee [served 3 appointments, for 6 years], Resident Manager of Phoenix office, member of Compensation, Diversity and Marketing Committees. During tenure, Bryan Cave established first international offices and expanded national footprint coast to coast. Directed Immigration practice, which quadrupled in revenues and tripled in staff.
Bacon & Dear. 1997-2006. Founding partner of woman-owned firm. Firm’s innovations include first interactive database for case management and preparation, no billable hours, and team format for client service. Practice limited to immigration law, emphasizing business and management of volume processing. In 2003 affiliated with national employment law firm, Littler Mendelson, to assist with international expansion. At time of retirement, July 2006, firm had grown from 10 to 150 employees with offices in Shanghai and Bangalore and extensive international migration practice. Clients included 10 Fortune 100 businesses and annual income in excess of $20 million.
Western Progress, January 2007 – June 2008. Accepted 6-month assignment from Center for American Progress as CEO. Set up a non-profit policy and communication firm devoted to issues of concern in the 8 Rocky Mountain States. Establish Board, secured funding for first 3 year cycle, obtained 501c3 tax status, hired staff, opened offices in Colorado, Montana and Phoenix, produced first 8-state workshop on solar energy, developed website, enewsletter, partnerships with each Governor’s office and working relationships with Universities and experts in the areas of interest.
Western Progress, June 2007 to December 2008: Distinguished FellowImmigration. Work with immigration policy, process and legislation in the Rocky Mountain States.

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Department of Homeland Security, Chief Counsel United States Citizenship & Immigration Service October 2009 – December 2010 Managed 180 USCIS lawyers throughout the U.S., counseled Director of USCIS, participated in policy discussions among DHS immigration agencies, drafted memoranda regarding administrative/executive options to statutory reform, including DACA-type discretion.
Teaching:
Visiting Professor of Law, Arizona State University College of Law, 19791980. Taught torts, professionalism and immigration/labor seminar. On leave from Jennings Strouss & Salmon.
Adjunct Professor of Law, Arizona State University College of Law, 19812005; 2008. Taught professionalism and immigration seminar at least once each academic year as well as participate in orientation programs, student mentoring and career counseling as requested by ASU.
Lecturer, University of Arizona College of Law, periodically since 1995.
Keynote Lecture IL: Syracuse University Law School, 2015
Distinguiished Practitioner, University of Miami Law School, Spring semester, 2012, 2013, 2014, 2016. Taught seminar to 3L and LLM students on Global Migration Policy and Law; guest lectured at UM Law School immigration law course and clinic. Presented at panels related to immigration.
Professional Affiliations and Appointments:
First women to serve as the President of the 10,000-member Arizona Bar Association, 1991-92. Established Law Office Management Assistance Program [LOMAP], state Constitutional amendment to include diversity as criteria for merit selection, revamping of discipline system to establish priorities based on public harm, divert health-based problems to treatment, and professionalize staff, included public members on Board of Governors, established Appointments Committee to ensure equal opportunity to serve on Bar Committees.
First woman to serve as General Counsel to 14,000 member American Immigration Lawyers Association, 1993–1996 and General Counsel to American Immigration Law Foundation, 2000 to 2006. Chaired numerous AILA INS liaison committees, including DOL, INS Enforcement and Professional Responsibility.
First woman lawyer representative to the Ninth Circuit Court of Appeals, 198386.

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First Arizona women lawyer selected by Ninth Circuit Federal Court of Appeals to its Advisory Board, 2006-2009
University of Arizona James E. Rogers College of Law Board of Visitors. Member, 1995 – present, Chair, 2000-2003.
University of Miami School of Law Visiting Committee, Member, 2010-present.
Arizona Court of Appeals Judge pro-tempore, 1985, 1994, 1998.
Served on Selection Committees for Federal District Court Magistrate and Commissioner positions.
Served on Appellate Court Merit Selection Nominating Committee for Arizona Supreme Court.
Served on Governor-appointed Selection Committees for State Land Commission, Director of State Department of Revenue, Director of Corrections.
Member, Editorial Board, Bender’s Immigration Law Publications 2002 –2008.
Community Activities:
Co-Chair, Mayoral campaign, Terry Goddard 1982. Coordinated volunteers, fund-raising, issues briefing papers for successful campaign of progressive candidate.
Phoenix Citizen’s Bond Commission 1988. With 2 co-chairs, appointed by Mayor Terry Goddard to lead campaign that approved over 1 billion dollars in city improvements, at that time the largest in U.S. history. Bond issue included innovative public initiatives, including streetscapes, freeway art, “green” library and museum designs, and was the first to be tied to a comprehensive 5 year City Plan based on citizen input.
Co-Chair, Phoenix Indian School Design Commission, 1988-90. With 3 others, chaired controversial land-use decision making process and plan for use of centrally located, and commercially valuable, Phoenix open space previously used as Native American boarding school. Result preserved open space and engaged developers in design and uses acceptable to Native American advisory groups.
Big Sisters of Arizona 1975-1982. Board member, held all offices and served as President 1978-80. During this period organization grew 5 fold and began

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merger with Big Brothers of Arizona. Program is considered national model for Big Brother/Big Sister operations across the United States. Remained active contributor.
Valley Leadership 1976-1977. Selected for leadership program established by Phoenix area business leaders to identify leadership talent and provide orientation to pressing area issues, including growth, education, employment and diversity. Remained active in mentoring program.
Established Bacon & Dear ASU College of Law scholarships to serve detainees through the Florence Project. Program involved semester of law school credit and $10,000 grant per recipient. Program folded into immigration law clinic.
Initiated and funded Immigration Law Clinics at Arizona State University Sandra Day O’Conner College of Law, and University of Arizona James Rogers College of Law. The latter is now named Bacon Immigration Law Program and Policy. I serve as Advisor on policy issues.
Mentor young lawyers seeking to specialize in immigration law 1980 to present; currently working with 4 lawyers who are developing immigration law practices.
Executive Board, Arizona Supreme Court’s Centennial Commission, Developing interactive program to celebrate outstanding historic actions and members of Arizona legal community. 2008-present
Awards:
• Margaret Brent Award, (highest award given to women lawyer nationally, by the American Bar Association, for lifetime achievement and support for women in the law), 2007.
• Arizona’s 100 Outstanding Minority and Women Lawyers 2000present.
• Sarah Herring Sorin Award (highest award give to an Arizona woman attorney) 2001
• State Bar Distinguished Service Award (highest award given to an Arizona State Bar member) 2003
• Arizona State University Distinguished Achievement Awards 1985; 2001
• University of Arizona Distinguished Service Award 1998 • University of Arizona James E. Rogers College of Law Honorary Alumni
Award. 2003 • American Immigration Lawyers Association President’s Commendation
1994, 2004, 2005

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• American Immigration Lawyers Association Appreciation Awards, 1997, 1998, 2000, 2002
• Quality of Life award, Maricopa County Bar Association, given to “best small firm” in Arizona, 1999.
Publications and Speaking Engagements:
Spoken at every AILA annual convention since 1985; spoken at most State Bar of Arizona annual conventions and at more than 50 Continuing Legal Education courses in professionalism, employment law and immigration law; chaired panels and moderated conferences and seminars in Arizona and nationally covering the entire range of immigration issues, from detention to naturalization; given key note addresses at law school orientation, women’s law conferences, women law students conferences, community organizations involved in immigration or border issues and inductions of federal and state judges, most recently at Syracuse University, Arizona State University and University of Miami.
Written articles or book chapters relating to immigration law for many specialty publications, including ILW and Arizona Employment Law Handbook, as well as authored columns for The Arizona Attorney, monthly during tenure as Bar President and regularly since 2003. Publications include:
PERM: An Introduction, Lexis/Nexis Immigration Law Recent Developments, http://www.lexisnexis.com/practiceareas/immigration/pdfs/web713.pdf (Feb. 18, 2005) (co-authored with Lori S. Melton).
INS Enforcement at the Workplace: The I-9 Audit and Beyond, in 2 1995-96 Immigration & Nationality Law Handbook 499 (American Immigration Lawyers Ass’n Ed., 1995).
A Practitioner’s Guide to Successful Alien Labor Certifications, 88-5 Immigration Briefings 5 (May 1988) (co-authored with Lenni B. Benson).
Estopping INS-‘Affirmative Misconduct’ Makes Positively Bad Law, 5 Immig. J. 8 (1982).
Regular columnist in Arizona Attorney monthly magazine on law-related, and frequently immigration law related, issues.
Writer, MS Magazine periodically since 2014, including article on migrant women asylum applicants in ICE detention.
Served as expert witness in State of Arizona v. MCCCD (concerning in-state tuition for DACA recipients), 2014 and 2015.

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Signatory to various Amici briefs in the USSC regarding immigration issues, including U.S. v. State of Texas (Constitutionality of discretionary authority exercised by the Executive branch). 2015

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L.

:

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct.3-1 Mario A. Hernandez, and League of

:

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In

:

His Official Capacity), and Texas Attorney

:

General Ken Paxton (In His Official

:

Capacity)

:

:

Defendants.

:

-------------------------------------------------------------

DECLARATION OF ALEXIS WARREN

I, Alexis Warren, declare as follows:

I make the statements in this Declaration based on my own personal knowledge, and if

called to testify I could and would do so competently as follows:

1.

I am a paralegal with the American Civil Liberties Union Foundation Immigrants’

Rights Project. I work with the attorneys representing Plaintiffs-Petitioners in the instant case.

2.

On June 4, 2017 I visited the website of The New Yorker and downloaded a copy

of the article “Why Police Chiefs Oppose Texas’s New Anti-Immigrant Law” by Jonathan

Blitzer, June 2, 2017, available at http://www.newyorker.com/news/news-desk/why-police-

chiefs-oppose-texass-new-anti-immigrant-law. A true and correct copy of this article is attached

to this Declaration as Exhibit A.

Case 5:17-cv-00404-OLG Document 24-3 Filed 06/05/17 Page 2 of 19

3.

On June 4, 2017 I visited the website of the NBC News and downloaded a copy

of the article “ACLU: Tucson Traffic Stops for Immigration Checks Violating Rights” by

Suzanne Gamboa, May 2, 2017, available at http://www.nbcnews.com/news/latino/aclu-tucson-

traffic-stops-immigration-checks-violating-rights-n566326. A true and correct copy of this article

is attached to this Declaration as Exhibit B.

4.

On June 2, 2017 I visited the website of The Houston Chronicle and downloaded

a copy of the article “Police chiefs: SB4 is a ‘lose-lose’ for Texas” by Art Acevedo and James

McLaughlin,

April

30,

2017,

available

at

http://www.houstonchronicle.com/opinion/outlook/article/Police-chiefs-SB-4-is-a-lose-lose-for-

Texas-11110336.php. A true and correct copy of this article is attached to this Declaration as

Exhibit C.

5.

On June 2, 2017 I visited the website of the San Antonio Current and downloaded

a copy of the article “Texas’ Big-City Police Chiefs Hate The ‘Sanctuary Cities’ Bill” by

Michael Barajas, May, 1, 2017, available at http://www.sacurrent.com/the-

daily/archives/2017/05/01/texas-big-city-police-chiefs-hate-the-sanctuary-cities-law. A true and

correct copy of this article is attached to this Declaration as Exhibit D.

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed this 4th day of June, 2017 in New York, New York.

______________________________ Alexis Warren

2

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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Case 5:17-cv-00404-OLG Document 24-4 Filed 06/05/17 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L.

:

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct.3-1 Mario A. Hernandez, and League of

:

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In

:

His Official Capacity), and Texas Attorney

:

General Ken Paxton (In His Official

:

Capacity)

:

:

:

Defendants.

:

-------------------------------------------------------------

DECLARATION OF VANITA GUPTA

I, Vanita Gupta, hereby declare:

I make this declaration based on my own personal knowledge, and if called to testify, I

could and would do so competently as follows:

1. I am currently the President and CEO of the Leadership Conference on Civil and Human

Rights.

2. Between October 2014 and January 2017, I served as the Principal Deputy Assistant

Attorney General and head of the Civil Rights Division at the United States Department

of Justice.

3. During my tenure at the Department of Justice, I worked extensively and collaboratively

with city officials and law enforcement across all ranks – from mayors to police chiefs to

command staff to line officers to police unions – to build community-police trust across

1

Case 5:17-cv-00404-OLG Document 24-4 Filed 06/05/17 Page 2 of 4
the country. Through enforcement, public education, and joint initiatives, I oversaw efforts aimed at advancing best and constitutional police practices, protecting officer safety, ensuring public safety, and promoting community engagement with law enforcement. This work was a top priority not only for me but for the Attorney General, who also devoted extensive time to these issues. 4. Under my supervision, the Civil Rights Division investigated and/or negotiated agreements with police departments in cities like Ferguson, Cleveland, Baltimore, and Chicago, to address problems of use of excessive force, unlawful arrests, and discriminatory policing. I have extensive experience working with law enforcement agencies to develop and maintain constitutional policing practices and improve community relations. 5. I have read and reviewed Texas Senate Bill 4 (“SB 4”). 6. Based on my expertise and experience, SB 4 will negatively impact the ability of police to engage in effective community policing and traditional law enforcement functions. It will harm public safety. It will result in increased racial profiling by police, and it will result in other constitutional violations, such as unlawful stops and prolonged detentions. 7. Immigration enforcement is a function of federal law. Immigration law is a complex field and requires special training to administer. Absent specialized training, law enforcement may not be capable of accurately determining immigration status. Even then, it will require dedication of considerable resources – both money and time – to make the inquiries and determinations required by SB 4. This will necessarily impact the ability of police to engage in other activities.
2

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8. Law enforcement involvement in immigration enforcement decreases community trust, particularly in localities with sizeable populations of immigrant or minority populations. SB 4 makes it difficult, if not impossible, for local police to develop and maintain this trust, because it removes their ability to choose when and how to engage in immigration enforcement actions. For communities to cooperate with police, they need to have faith that their local departments have their best interests in mind. Many law enforcement agencies foster that faith by regulating participation in immigration enforcement, by, for instance, limiting inquiries about immigration status, coordination with federal officials, and compliance with detainers. Under SB 4, law enforcement will no longer be able to instill this trust in communities where a significant number of non-citizens reside.
9. For example, if the community believes that police will inquire into their immigration status or honor even erroneous detainer requests, they will come to see their police as immigration agents and not as a police force that is entrusted to ensure the community’s public safety needs. This will foster distrust that is antithetical to effective policing. As a result, some communities will be effectively deprived of full police services and protection. This is dangerous as community-police trust is a cornerstone of public safety. This is precisely why almost all major city chiefs in Texas publicly opposed passage of SB 4.
10. Moreover, removing the ability and discretion of local law enforcement leaders to limit when and under which circumstances their officers may inquire into immigration status will create the risk of racial profiling. Without proper training, supervision, or resources, police will rely on racial proxies for immigration status and screen minorities and those
3

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who “look” foreign. This will create disparities in police treatment of the community. The appearance of racial bias will further erode community relations. 11. Finally, police involvement in immigration enforcement will result in increased constitutional violations. Fourth Amendment violations will result from SB 4’s detention provision, which generally does not allow police to deny any detainer request, even if the request lacks probable cause. Fourth Amendment violations will similarly result from investigations of immigration status in the course of a detention or arrest, which SB 4 precludes police chiefs and sheriffs from reasonably limiting. While SB 4 provides that the State of Texas will bear costs of a legal defense related to the detainer provision, it will not bear the costs or otherwise indemnify localities for other Fourth Amendment or equal protection violations. 12. For a law enforcement agency to function effectively and respect constitutional limits, those in charge of the agency must exercise responsible oversight over the actions of line officers. In my experience, patterns of Fourth Amendment and equal protection violations are most common where supervisors fail to provide leadership and oversight for the officers who interact with the community on a daily basis. I am very concerned that SB 4 will disable that oversight and prevent agency chiefs and supervisors from acting when they encounter patterns and practices in their agencies that give rise to constitutional concerns. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed June 4th 2017 in Washington, D.C..
________________________________ Vanita Gupta
4

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Case 5:17-cv-00404-OLG Document 24-9 Filed 06/05/17 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

City of El Cenizo, Texas, Mayor Raul L.

:

Reyes of City of El Cenizo, Maverick

:

County, Maverick County Sheriff

:

Tom Schmerber, Maverick County Constable :

Pct.3-1 Mario A. Hernandez, and League of

:

United Latin American Citizens,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

State of Texas, Governor Greg Abbott (In

:

His Official Capacity), and Texas Attorney

: [PROPOSED] ORDER GRANTING

General Ken Paxton (In His Official

: PLAINTIFFS’ APPLICATION FOR

Capacity)

: PRELIMINARY INJUNCTION

:

Defendants.

:

-------------------------------------------------------------

This matter comes before the Court on the Plaintiffs’ Application for a Preliminary Injunction to enjoin Defendants from enforcing Texas Senate Bill 4 (“SB 4”), enacted on May 7, 2017. Having considered the parties’ papers and evidence filed in support and in opposition to the application, as well as oral arguments, the Court rules as follows:
Plaintiffs are likely to succeed on the merits of their claims that SB 4 violates the U.S. Constitution. Plaintiffs have also demonstrated that they will suffer irreparable injury. Plaintiffs have demonstrated that the balance of hardships tips in their favor, and that a preliminary injunction advances the public interest. Preliminary relief would maintain the status quo until the Court can render final judgment. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs’ Application for a Preliminary Injunction is GRANTED.

1

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2. Until such time as the Court makes a final ruling on the merits, or until further ordered from the Court, Defendants and their officers, agents, servants, employees, and attorneys and those persons in active concert or participation with them are HEREBY ENJOINED AND RESTRAINED from giving any effect to or otherwise taking action to enforce SB 4. This order shall become effective immediately, and shall continue in effect until this Court enters a final judgment in this action or otherwise lifts the preliminary injunction.

Entered this _____ day of _____, 2017

_______________________________ Hon. Orlando L. Garcia United States District Judge

2

 
 Case 5:17-cv-00404-OLG Document 32 Filed 06/08/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ MOTION TO DISMISS OR TRANSFER THE
CONSOLIDATED CASES

1

Case 5:17-cv-00404-OLG Document 32 Filed 06/08/17 Page 2 of 3
Defendants, by and through the Attorney General of Texas, and pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, move this Court to dismiss or transfer these proceedings for consolidation with an identical matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS. In support of this Motion, Texas relies on the following contemporaneously filed documents:
1. Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases; and
2. [Proposed] Order Granting Defendants’ Motion to Dismiss or Transfer the Consolidated Cases.
For the reasons stated in this Motion and accompanying documents, Defendants respectfully requests that the Court grant this motion, and dismiss this action for improper venue, or transfer it to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.
Respectfully submitted this the 8th day of June, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General
2

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/s/Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
CERTIFICATE OF CONFERENCE Counsel for Defendants sought conference via email on June 8, 2017 with counsel for Plaintiffs. As of the time of filing, counsel for the City of San Antonio, El Cenizo plaintiffs, and El Paso County et al. responded that they oppose the motion.
/s/ Darren McCarty DARREN MCCARTY
CERTIFICATE OF SERVICE I, Darren McCarty, hereby certify that on this the 8th day of June, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/Darren McCarty DARREN MCCARTY
3

 
 Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 1 of 58
CONSOLIDATED,LEAD_CASE
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:17−cv−00404−OLG

City of El Cenizo, Texas, et al v. State of Texas, et al Assigned to: Chief Judge Orlando L. Garcia Case in other court: 5CCA, 17−50762 (DOC. #190)
5CCA, 17−50764 (DOC. #192) 5CCA, 17−50856 (DOC. #223) 5CCA, 17−50858 (DOC. #224) 5CCA, 17−50860 (DOC. #225) 5CCA, 17−50865 (DOC. #228) Cause: 28:2201 Declaratory Judgment Plaintiff

Date Filed: 05/08/2017 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

City of El Cenizo, Texas TERMINATED: 09/16/2019

represented by Andre I. Segura ACLU Foundation of Texas, Inc. P.O. Box 8306 Houston, TX 77288 713−942−8146 Fax: 713−942−8966 Email: asegura@aclutx.org TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody Wofsy American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Naimeh Salem Gonzalez Olivieri LLC 2200 Southwet Freeway, Suite 550 Houston, TX 77098 713−481−3040 Fax: 713−588−8683 Email: nsalem@gonzalezolivierillc.com TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 212−549−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raed Gonzalez

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 2 of 58
Gonzalez Olivieri LLC 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713−481−3040 Fax: 713−588−8683 Email: rgonzalez@gonzalezolivierillc.com TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur American Civil Liberties Union 125 Broad Street New York, NY 10004 212−549−2676 Fax: 212−549−2654 Email: samdur@aclu.org TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen B. Kang ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0783 Fax: 415−395−0950 Email: skang@aclu.org TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Edgar Saldivar ACLU of Texas P.O. Box 8306 Houston, TX 77288 7133257011 Fax: 7139428966 Email: esaldivar@aclutx.org TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2616 Fax: 212−549−2654 Email: lgelernt@aclu.org TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Max Renea Hicks Law Office of Max Renea Hicks

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 3 of 58

Plaintiff
Raul L. Reyes Mayor, City of El Cenizo TERMINATED: 09/16/2019

P. O. Box 303187 Austin, TX 78703 (512) 480−8231 Email: rhicks@renea−hicks.com TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Luis Roberto Vera , Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad Suite 1325 San Antonio, TX 78205−2260 (210) 225−3300 Fax: 210/225−2060 Email: lrvlaw@sbcglobal.net TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by Andre I. Segura (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Max Renea Hicks (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 4 of 58

Plaintiff Tom Schmerber County Sheriff TERMINATED: 09/16/2019
Plaintiff Mario A. Hernandez Maverick County Constable Pct. 3−1 TERMINATED: 09/16/2019

Luis Roberto Vera , Jr. (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by Andre I. Segura (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Max Renea Hicks (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Luis Roberto Vera , Jr. (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by Andre I. Segura (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 5 of 58

Plaintiff
League Of United Latin American Citizens TERMINATED: 09/16/2019

TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Max Renea Hicks (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Luis Roberto Vera , Jr. (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by Andre I. Segura (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 6 of 58

Plaintiff
Maverick County TERMINATED: 09/16/2019

Edgar Saldivar (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Max Renea Hicks (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Luis Roberto Vera , Jr. (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by Andre I. Segura (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia D. Wang (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) ATTORNEY TO BE NOTICED
Max Renea Hicks (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 7 of 58

Plaintiff El Cenizo TERMINATED: 09/16/2019 Plaintiff William McManus
Plaintiff Ana Sandoval

Luis Roberto Vera , Jr. (See above for address) TERMINATED: 09/16/2019 ATTORNEY TO BE NOTICED
represented by El Cenizo PRO SE
represented by Andrea E. Senteno Mexican American Legal Defense and Educational Fund 110 Broadway, Suite 300 San Antonio, TX 78205 202−293−2828 Fax: 202−293−2849 Email: asenteno@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales MALDEF [Mexican American Legal Defense & Educational Fund] 110 Broadway Street, #300 San Antonio, TX 78205 (210) 224−5476 Fax: 210/224−5382 Email: nperales@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini Mexican American Legal Defense & Educational Fund 1512 14th Street Sacramento, CA 95814 916−444−3031 Fax: 916−444−7207 Email: tpellegrini@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz MALDEF 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: tsaenz@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 8 of 58

Plaintiff Celestino Gallegos
Plaintiff Maria Valladarez

ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ramon A. Soto Mexican American Legal Defense & Educational Fund 110 Broadway, Suite 300 San Antonio, TX 78205 210−224−5476 Fax: 210−224−5382 Email: rsoto@maldef.org ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ramon A. Soto (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Lynne Klein Office of the City Attorney, Litigation Division Frost Bank Tower 100 West Houston Street, 18th Floor San Antonio, TX 78205−3966 (210) 207−8919 Fax: 210/207−4357 Email: Deborah.Klein@sanantonio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin E. Wechkin Sidley Austin, LLP 701 5th A venue, Suite 4200 Seattle, WA 98104 (415) 439−1799 Fax: (415) 772−7400 Email: rwechkin@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yolanda Cornejo Garcia Sidley Austin, LLP 2021 McKinney Avenue, Suite 2000

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 9 of 58

Plaintiff Armando Simon

Dallas, TX 75201 214−981−3414 Fax: 214−981−3400 Email: ygarcia@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin E. Wechkin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yolanda Cornejo Garcia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff El Paso County
Consol Plaintiff Richard Wiles Sheriff of El Paso County, in his official capacity

represented by Jo Anne Bernal Office of the County Attorney El Paso County Bldg. 500 E. San Antonio St. Rm. 203 El Paso, TX 79901−2419 (915) 546−2083 Fax: 915/546−2133 Email: joanne.bernal@epcounty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209 210−392−2856 Email: jgarza@trla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Moran Garza Golando Moran, PLLC 405 N. St. Marys St., Ste. 700 San Antonio, TX 78205 210−892−8543 Email: michael@ggmtx.com TERMINATED: 09/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jo Anne Bernal (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 10 of 58

Consol Plaintiff Texas Organizing Project Education Fund
Consol Plaintiff City of San Antonio

ATTORNEY TO BE NOTICED
Jose Garza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando The Law Office of Martin Golando, PLLC 405 N. St. Mary's Street, Suite 700 San Antonio, TX 78205 210−892−8543 Fax: 210−428−6448 Email: martin.golando@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Moran (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Efren Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 956−787−8171 ext. 108 Fax: 956−787−6348 Email: efren@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi M.D. Marziani Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 512−474−5073 x108 Fax: 512−474−0726 Email: mimi@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno Mexican American Legal Defense and Educational Fund 110 Broadway San Antonio, TX 78205 (210) 224−5476 Fax: (210) 224−5382 Email: cmoreno@maldef.org TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cory D. Szczepanik Sidley Austin, LLP

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 11 of 58
2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 214−981−3300 Fax: 214−981−3400 Email: cszczepanik@sidley.com TERMINATED: 06/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Bono Maldef 110 Broadway #300 San Antonio, Tx 78205 (210) 224−5476 ext 204 Fax: 210/224−5382 Email: mbono@maldef.org TERMINATED: 09/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin E. Wechkin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yolanda Cornejo Garcia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon 1801 San Pedro Ave. San Antonio, TX 78212 4692268741 Email: jacksalmon02@yahoo.com TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
Jose F. Sanchez 3 Richland Place Pasadena, CA 91103 626−529−3703 Email: jsanchez695@earthlink.net TERMINATED: 08/09/2019

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 12 of 58

Consol Plaintiff Rey A. Saldana

ATTORNEY TO BE NOTICED
Ramon A. Soto (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cory D. Szczepanik (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Dummer Sidley Austin, LLP 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 214−981−3300 Fax: 214−981−3400 Email: david.dummer@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Bono (See above for address) TERMINATED: 09/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin E. Wechkin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 13 of 58

Consol Plaintiff Texas Association of Chicanos in Higher Education
Consol Plaintiff La Union Del Pueblo Entero, Inc.

ATTORNEY TO BE NOTICED
Yolanda Cornejo Garcia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
Jose F. Sanchez (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Bono (See above for address) TERMINATED: 09/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 14 of 58

Consol Plaintiff Workers Defense Project

ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Bono (See above for address) TERMINATED: 09/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Bono (See above for address) TERMINATED: 09/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 15 of 58

Consol Plaintiff City Of El Paso
Consol Plaintiff Move San Antonio

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
represented by Efren Carlos Olivares (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 16 of 58

Consol Plaintiff Bexar County, Texas
Consol Plaintiff Jo Anne Bernal County Attorney of El Paso County, in her Official Capacity

ATTORNEY TO BE NOTICED
Jose Garza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mimi M.D. Marziani (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 12/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Lynne Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A. Saenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Paul Salmon (See above for address) TERMINATED: 04/09/2019 ATTORNEY TO BE NOTICED
represented by Jose Garza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Anthony Golando (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 17 of 58

V. Consolidated Intervenor Plaintiff City Of Austin
Consolidated Intervenor Plaintiff Texas Association of Hispanic County Judges and County Commissioners

Michael Patrick Moran (See above for address) TERMINATED: 09/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ariane Vokes Arth City of Austin 301 W 2nd Street Austin, TX 78701 512−974−3454 Fax: 512−974−1311 Email: ariane.arth@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J. Coppola City of Austin P.O. Box 1546 Austin, TX 78767 512−974−2161 Fax: 512−974−1311 Email: christopher.coppola@austintexas.gov TERMINATED: 09/27/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael John Weills Siegel Michael Siegel, Esq. P.O. Box 2409 Austin, TX 78701 737−615−9044 Email: siegellawatx@gmail.com TERMINATED: 09/27/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sameer Singh Birring City of Austin Law Department P.O. Box 1546 Austin, TX 78767 512−974−3042 Email: sameer.birring@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Rolando L. Rios Law Offices of Rolando L. Rios 115 E. Travis Street Suite 1645 San Antonio, TX 78205 (210) 222−2102 Fax: 210/222−2898 Email: rrios@rolandorioslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 18 of 58

V. Defendant State Of Texas

represented by William Thomas Thompson Office of the Attorney General Special Litigation Unit PO Box 12548 (MC−076) Austin, TX 78711−2548 512−936−2567 Fax: 512−936−0545 Email: Will.Thompson@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs Office of the Attorney General 300 W. 15th Street Austin, TX 78701 512−463−2120 Fax: 512−320−0667 Email: adam.biggs@oag.texas.gov ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III Office of the Attorney General of Texas 209 W. 14th St., 8th Floor Austin, TX 78701 (512) 475−3281 Email: grace.moody@texasattorneygeneral.gov TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Brantley Starr Deputy First Assistant Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512−936−8160 Fax: 512−936−0545 Email: brantley.starr@oag.texas.gov TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty Office of Texas Attorney General Executive Administration 240 W. 14th Street 7th Floor Austin, TX 78701 512−936−0594 Fax: 512−936−0545 Email: darren.mccarty@oag.texas.gov ATTORNEY TO BE NOTICED
David Jonathan Hacker Office of the Attorney General of Texas 209 W. 14th Street PDB, Ground Floor Austin, TX 78701 512−936−2330 Fax: 512−936−0545 Email: david.hacker@oag.texas.gov ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 19 of 58

Defendant
Greg Abbott Govenor of the State of Texas, in his Official Capacity

David Austin Robert Nimocks Texas Attorney General's Office 209 W. 14th Street, 8th Floor (Mail Code 001) Austin, TX 78701 512−936−1414 Email: elizabeth.saunders@oag.texas.gov TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Lesli Gattis Ginn Office of the Attorney General Financial Litigation and Charitable Trusts Division P.O. Box 12548 Austin, TX 78711−2548 (512) 936−1403 Fax: (512) 936−0545 Email: Lesli.Ginn@oag.texas.gov TERMINATED: 09/27/2019 ATTORNEY TO BE NOTICED
Sean P. Flammer The Office of the Texas Attorney General 300 W. 15th Street Austin, TX 78701 Travis Email: sean.flammer@oag.texas.gov TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED
William T. Deane Office of the Attorney General General Litigation Division−019 P.O. Box 12548 Austin, TX 78711−2548 (512) 463−2120 Fax: 512/320−0667 Email: laura.obrien@oag.texas.gov TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by William Thomas Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 20 of 58

Defendant
Ken Paxton Texas Attorney General

(See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Lesli Gattis Ginn (See above for address) TERMINATED: 09/27/2019 ATTORNEY TO BE NOTICED
Sean P. Flammer (See above for address) TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by William Thomas Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Lesli Gattis Ginn (See above for address) TERMINATED: 09/27/2019 ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 21 of 58

Defendant City of Rowlett
Defendant William M. Brodnax
Defendant Jason Welk
Defendant Brandon Rickman
V. Consol Defendant Steve McCraw Director of the Texas Department of Public Safety

Sean P. Flammer (See above for address) TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by Joel Stonedale Texas Attorney General 209 West 14th Street Austin, TX 78711 512−936−0677 Email: grace.moody@oag.texas.gov TERMINATED: 07/22/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Thomas Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 22 of 58

Consol Defendant Texas Department of Public Safety
Intervenor Plaintiff Judge Sarah Eckhardt in her Official capacity as Travis County Judge TERMINATED: 09/16/2019

ATTORNEY TO BE NOTICED
Lesli Gattis Ginn (See above for address) TERMINATED: 09/27/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by Joel Stonedale (See above for address) TERMINATED: 07/22/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by Anthony J. Nelson Travis County Attorney's Office 314 West 11th Street Room 590 Austin, TX 78701 (512) 854−4801 Fax: 512/854−4808 Email: tony.nelson@traviscountytx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie R. Eiserloh Travis County Attorney's Office 314 W. 11th Street Ste 500 Austin, TX 78701

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 23 of 58

Intervenor Plaintiff
Sheriff Sally Hernandez in her official capacity as Travis County Sheriff TERMINATED: 09/16/2019

(512) 854−6906 Fax: 512/854−4808 Email: laurie.eiserloh@traviscountytx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Talley Travis County Attorney's Office PO Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sharon.talley@traviscountytx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherine Elizabeth Thomas Assistant County Attorney Travis County, Texas P.O. Box 1748 Austin, TX 78767 (512) 854−9513 Fax: 512/854−4808 Email: sherine.thomas@traviscountytx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim Labadie Travis County Attorney's Office P. O. Box 1748 Austin, TX 78767 (512) 854−5864 Fax: 512−854−9316 Email: tim.labadie@traviscountytx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony J. Nelson (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie R. Eiserloh (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Talley (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherine Elizabeth Thomas (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 24 of 58

Intervenor Plaintiff Travis County TERMINATED: 09/16/2019
Intervenor Plaintiff City of Dallas, Texas TERMINATED: 09/16/2019
Intervenor Plaintiff The City of Houston TERMINATED: 09/16/2019

ATTORNEY TO BE NOTICED
Tim Labadie (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony J. Nelson (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurie R. Eiserloh (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Talley (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherine Elizabeth Thomas (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim Labadie (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles S. Estee Dallas City Attorney's Office 1500 Marilla, 7DN Dallas, TX 75201 214−670−3499 Fax: 214−670−0622 Email: charles.estee@dallascityhall.com TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Collyn Ann Peddie 900 Bagby, 4th floor Houston, TX 77002 832−393−6462 Fax: 832−393−6259 Email: collyn.peddie@houstontx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Connica Lemond

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 25 of 58
City of Houston 900 Bagby Houston, TX 77002 832−393−6208 Fax: 832−393−6259 Email: connica.lemond@kennardlaw.com TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando De Leon City of Houston Legal Department 900 Bagby, 4th Floor Houston, TX 77002 832−393−6429 Fax: 832−393−6259 Email: fernando.deleon2@houstontx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith Lee Ramsey City of Houston Legal Department 900 Bagby 4th Floor Houston, TX 77002 (832) 393−6468 Fax: (832) 393−6259 Email: judith.ramsey@houstontx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia L. Casey City of Houston Legal Department 900 Bagby, 4th Floor Houston, TX 77002 832−393−6302 Fax: 832−393−6259 Email: pat.casey@houstontx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald C. Lewis City of Houston Legal Department 900 Bagby, 4th Floor Houston, TX 77002 832−393−6202 Fax: 832−393−6259 Email: ronald.lewis@houstontx.gov TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Greg Abbott

represented by William Thomas Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 26 of 58

Intervenor Defendant Ken Paxton
Intervenor Defendant State of Texas

(See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
represented by William Thomas Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Andrew Drake Leonie , III (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 27 of 58

Intervenor Defendant Steve McCraw Director of the Texas Department of Public Safety
Amicus Mexican American Legal Defense and Education Fund MALDEF
Amicus Immigration Reform Law Institute

David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by Joel Stonedale (See above for address) TERMINATED: 07/22/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/09/2019 ATTORNEY TO BE NOTICED
Darren L. McCarty (See above for address) ATTORNEY TO BE NOTICED
David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED
David Austin Robert Nimocks (See above for address) TERMINATED: 07/22/2019 ATTORNEY TO BE NOTICED
William T. Deane (See above for address) TERMINATED: 01/30/2018 ATTORNEY TO BE NOTICED
represented by Andrea E. Senteno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya G. Pellegrini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Meriwether Hethmon Immigration Reform Law Institute

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 28 of 58

Amicus Anti−Defamation League ADL
Amicus Major Cities Chiefs Association Amicus Police Executive Research Forum Amicus United States Conference of Mayors Amicus The Episcopal Diocese of Texas
Amicus The Episcopal Diocese of The Rio Grande
Amicus The Rev. Dr. Erik K.J. Gronberg
Amicus The Rev. Dr. Joel N. Martinez
Amicus The Rev. Dr. Ray Tiemann

25 Massachusetts Avenue NW, Suite 335 Washington,, DC 20001 2O2−232−5590 Fax: 202−464−3590 Email: mhethmon@irli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jay D. Ellwanger Ellwanger Law LLLP 8310 N. Capital of Texas Hwy. Suite 190 Austin, TX 78731 737−808−2262 Email: jellwanger@equalrights.law LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington 1405 Montopolis Drive Austin, TX 78741 (512) 771−1759 Email: jch@utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 29 of 58

Amicus The Rev. Dr. Scott Jones
Amicus Texas Impact
Amicus The Rev. Chuck Freeman
Amicus The Rev. Sallie Sampsell Watson
Amicus Rev. Andy Shelton
Amicus Gonzalez Olivieri, LLC
Amicus The Commission of Human Rights of Mexico

ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Naimeh Salem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Noel Anthony Suniga Gonzalez Olivieri LLC 2200 SW Freeway, Suite 550 Houston, TX 77098 713−481−3040 Email: nsuniga@gonzalezolivierillc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raed Gonzalez (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by The Commission of Human Rights of Mexico Periferico Sur 3469 San Jeronimo Lidice, 10200 Mexico City Mexico PRO SE

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 30 of 58

Amicus City of San Marcos

represented by Michael J. Cosentino San Marcos City Attorney 630 East Hopkins San Marcos, TX 78666 (512)383−8151 Fax: 8557592846 Email: mcosentino@sanmarcostx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2017
05/08/2017
05/08/2017 05/14/2017
05/18/2017 05/18/2017 05/19/2017 05/19/2017 05/19/2017 05/19/2017 05/24/2017

# Docket Text
1 COMPLAINT Ciy of El Cenizo vs State of Texas ( Filing fee $ 400 receipt number 0542−9566863). No Summons requested at this time, filed by City Of El Cenizo. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Civil Cover Sheet)(Vera, Luis) (Entered: 05/08/2017)
Case Assigned to Chief Judge Orlando L. Garcia. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (rg) (Entered: 05/09/2017)
If ordered by the court, all referrals will be assigned to Magistrate Judge Primomo. (rg) (Entered: 05/09/2017)
2 NOTICE of Attorney Appearance by Max Renea Hicks on behalf of City Of El Cenizo, Mario A. Hernandez, League Of United Latin American Citizens, Raul L. Reyes, Tom Schmerber. Attorney Max Renea Hicks added to party City Of El Cenizo(pty:pla), Attorney Max Renea Hicks added to party Mario A. Hernandez(pty:pla), Attorney Max Renea Hicks added to party League Of United Latin American Citizens(pty:pla), Attorney Max Renea Hicks added to party Raul L. Reyes(pty:pla), Attorney Max Renea Hicks added to party Tom Schmerber(pty:pla) (Hicks, Max) (Entered: 05/14/2017)
3 REQUEST FOR ISSUANCE OF SUMMONS by City Of El Cenizo, Mario A. Hernandez, League Of United Latin American Citizens, Raul L. Reyes, Tom Schmerber. (Hicks, Max) (Entered: 05/18/2017)
4 AMENDED COMPLAINT First Amended Complaint against All Defendants amending, filed by City Of El Cenizo.(Vera, Luis) (Entered: 05/18/2017)
5 Summons Issued as to Greg Abbott, Ken Paxton, State Of Texas. (rf) (Entered: 05/19/2017)
6 SUMMONS Returned Executed by Mario A. Hernandez, City Of El Cenizo, Tom Schmerber, Raul L. Reyes, League Of United Latin American Citizens. State Of Texas served on 5/19/2017, answer due 6/9/2017. (Hicks, Max) (Entered: 05/19/2017)
7 SUMMONS Returned Executed by Mario A. Hernandez, City Of El Cenizo, Tom Schmerber, Raul L. Reyes, League Of United Latin American Citizens. Greg Abbott served on 5/19/2017, answer due 6/9/2017. (Hicks, Max) (Entered: 05/19/2017)
8 SUMMONS Returned Executed by Mario A. Hernandez, City Of El Cenizo, Tom Schmerber, Raul L. Reyes, League Of United Latin American Citizens. Ken Paxton served on 5/19/2017, answer due 6/9/2017. (Hicks, Max) (Entered: 05/19/2017)
9 NOTICE of Attorney Appearance by Edgar Saldivar on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. Attorney Edgar Saldivar added to party City of El Cenizo, Texas(pty:pla), Attorney Edgar Saldivar added to party Mario A. Hernandez(pty:pla), Attorney Edgar Saldivar added to party League Of United Latin American Citizens(pty:pla), Attorney Edgar Saldivar added to party Maverick County(pty:pla), Attorney Edgar Saldivar added to party Raul L. Reyes(pty:pla), Attorney Edgar Saldivar added to party Tom Schmerber(pty:pla) (Saldivar, Edgar) (Entered: 05/24/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 31 of 58

05/24/2017 05/24/2017 05/24/2017 05/24/2017 05/24/2017 05/25/2017 05/25/2017 05/25/2017 05/25/2017 05/26/2017
05/26/2017
05/26/2017

10 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Andre Segura ( Filing fee $ 100 receipt number 0542−9619382) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/24/2017)
11 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Cody Wofsy ( Filing fee $ 100 receipt number 0542−9619403) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/24/2017)
12 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Omar Jadwat ( Filing fee $ 100 receipt number 0542−9619417) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/24/2017)
13 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Spence Amdur ( Filing fee $ 100 receipt number 0542−9619426) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/24/2017)
14 Opposed MOTION to Transfer Case by Greg Abbott, Ken Paxton, State Of Texas. (Attachments: # 1 Memo in Support Memo in Support of Motion to Transfer, # 2 Proposed Order Proposed Order Granting Motion to Transfer)(McCarty, Darren) (Entered: 05/24/2017)
15 NOTICE of Attorney Appearance by Darren L. McCarty on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney Darren L. McCarty added to party Greg Abbott(pty:dft), Attorney Darren L. McCarty added to party Ken Paxton(pty:dft), Attorney Darren L. McCarty added to party State Of Texas(pty:dft) (McCarty, Darren) (Entered: 05/25/2017)
16 NOTICE of Attorney Appearance by Andrew Drake Leonie, III on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney Andrew Drake Leonie, III added to party Greg Abbott(pty:dft), Attorney Andrew Drake Leonie, III added to party Ken Paxton(pty:dft), Attorney Andrew Drake Leonie, III added to party State Of Texas(pty:dft) (Leonie, Andrew) (Entered: 05/25/2017)
17 NOTICE of Attorney Appearance by David Austin Robert Nimocks on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney David Austin Robert Nimocks added to party Greg Abbott(pty:dft), Attorney David Austin Robert Nimocks added to party Ken Paxton(pty:dft), Attorney David Austin Robert Nimocks added to party State Of Texas(pty:dft) (Nimocks, David) (Entered: 05/25/2017)
18 NOTICE of Attorney Appearance by David Jonathan Hacker on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney David Jonathan Hacker added to party Greg Abbott(pty:dft), Attorney David Jonathan Hacker added to party Ken Paxton(pty:dft), Attorney David Jonathan Hacker added to party State Of Texas(pty:dft) (Hacker, David) (Entered: 05/25/2017)
Text Order GRANTING 10 Motion to Appear Pro Hac Vice for Andre Segura. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/26/2017)
Text Order GRANTING 11 Motion to Appear Pro Hac Vice for Cody Wofsy. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/26/2017)
Text Order GRANTING 12 Motion to Appear Pro Hac Vice for Omar Jadwat. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 32 of 58

05/26/2017
05/26/2017 05/26/2017 05/31/2017
05/31/2017
05/31/2017
05/31/2017 05/31/2017 06/05/2017 06/05/2017 06/05/2017 06/06/2017 06/07/2017

associated with this entry.) (ju) (Entered: 05/26/2017)
Text Order GRANTING 13 Motion to Appear Pro Hac Vice for Spence Amdur. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/26/2017)
19 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Cecillia Wang ( Filing fee $ 100 receipt number 0542−9628032) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/26/2017)
20 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Lee Gelernt ( Filing fee $ 100 receipt number 0542−9628040) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 05/26/2017)
Text Order GRANTING 19 Motion to Appear Pro Hac Vice for Cecillia Wang. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/31/2017)
Text Order GRANTING 20 Motion to Appear Pro Hac Vice for Lee Gelernt. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/31/2017)
21 Response in Opposition to Motion, filed by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber, re 14 Opposed MOTION to Transfer Case filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Hicks, Max) (Entered: 05/31/2017)
22 ADVISORY TO THE COURT by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Attachments: # 1 Exhibit)(Hicks, Max) (Entered: 05/31/2017)
23 MOTION for Leave to File Brief by Mexican American Legal Defense and Education Fund. (Attachments: # 1 Proposed Order, # 2 Amicus Brief)(rg) (Entered: 06/01/2017)
24 Opposed MOTION for Preliminary Injunction by City of El Cenizo, Texas. (Attachments: # 1 Memo in Support, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit, # 9 Proposed Order)(Vera, Luis) (Entered: 06/05/2017)
Text Order GRANTING 23 Motion for Leave to File Amicus Brief entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/05/2017)
25 Amicus Brief in Opposition to Motion, filed by Mexican American Legal Defense and Education Fund, re 14 Opposed MOTION to Dismiss or Transfer Case filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott (rg) (Entered: 06/05/2017)
27 ORDER Consolidating this case with SA17−CV−459 and SA17−CV−489; DENYING AS MOOT 14 Opposed MOTION to Transfer Case. Signed by Chief Judge Orlando L. Garcia. (rf) (Entered: 06/07/2017)
26 NOTICE Errata to correct minor errors. No changes in memorandum. by City of El Cenizo, Texas re 24 Opposed MOTION for Preliminary Injunction (Vera, Luis) (Entered: 06/07/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 33 of 58

06/07/2017 06/07/2017 06/07/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/08/2017 06/12/2017 06/12/2017
06/12/2017 06/12/2017 06/12/2017 06/14/2017 06/14/2017

28 Joint MOTION for Extension of Time to File Response to Preliminary Injunction and Extension of Pages by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Gelernt, Lee) (Entered: 06/07/2017)
29 ORDER Setting Hearing on 24 Opposed MOTION for Preliminary Injunction : Motion Hearing set for 6/26/2017 09:30 AM before Chief Judge Orlando L. Garcia,. Signed by Chief Judge Orlando L. Garcia. (rf) (Entered: 06/07/2017)
Text Order GRANTING 28 Joint Motion for Extension of Time to File Response to Preliminary Injunction and Extension of Pages entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/07/2017)
30 REQUEST FOR ISSUANCE OF SUMMONS by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Perales, Nina) (Entered: 06/08/2017)
31 AMENDED COMPLAINT Second Amended clarifying entity LULAC as Texas LULAC. Absolutely No changes to substance of complaint, against All Defendants amending, filed by City of El Cenizo, Texas.(Vera, Luis) (Entered: 06/08/2017)
32 Opposed MOTION to Dismiss the Consolidated Cases, Opposed MOTION to Transfer Case to the Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Brief in Support, # 2 Proposed Order)(McCarty, Darren) (Entered: 06/08/2017)
33 MOTION to Intervene by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Attachments: # 1 Complaint in Intervention, # 2 Exhibit, # 3 Proposed Order)(rg) (Entered: 06/09/2017)
42 Summons Issued as to Greg Abbott, Ken Paxton. (rg) (Entered: 06/15/2017)
34 MOTION to Appear Pro Hac Vice by Edgar Saldivar for Stephen Kang ( Filing fee $ 100 receipt number 0542−9675683) by on behalf of City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Saldivar, Edgar) (Entered: 06/12/2017)
Text Order GRANTING 34 Motion to Appear Pro Hac Vice for Stephen Kang. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/12/2017)
35 SUPPLEMENT to 33 Motion to Intervene by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Attachments: # 1 Exhibit Application for Prelim Inj, # 2 Exhibit Exhibit 1 to Application for Prelim Inj)(Thomas, Sherine) Modified on 6/13/2017 (rg). (Entered: 06/12/2017)
36 ORDERED that the City of Austin's motion to intervene (docket no. 6 filed in SA−17−CV−489) is GRANTED. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/13/2017)
37 INTERVENOR COMPLAINT, filed by City Of Austin, against Greg Abbott and Ken Paxton.(rg) (Entered: 06/13/2017)
38 Joint MOTION to Extend Scheduling Order Deadlines by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/14/2017)
39 RESPONSE to Motion, filed by Greg Abbott, Greg Abbott, Steve McCraw, Ken Paxton, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 38 Joint MOTION to Extend Scheduling Order Deadlines filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc. and Request for Expedited Ruling (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/14/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 34 of 58

06/15/2017 06/15/2017 06/15/2017
06/15/2017
06/16/2017
06/16/2017 06/16/2017 06/16/2017
06/16/2017 06/19/2017 06/19/2017

40 Response in Opposition to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 33 MOTION to Intervene filed by Intervenor Travis County, Intervenor Sheriff Sally Hernandez, Intervenor Judge Sarah Eckhardt and Response in Opposition to City of Austin's Motion to Intervene (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/15/2017)
41 RESPONSE to Motion, filed by City of El Cenizo, Texas, re 38 Joint MOTION to Extend Scheduling Order Deadlines filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc. (Vera, Luis) (Entered: 06/15/2017)
43 Response in Opposition to Motion, filed by El Paso County, Texas Organizing Project Education Fund, Richard Wiles, re 32 Opposed MOTION to Dismiss the Consolidated CasesOpposed MOTION to Transfer Case to the Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (Attachments: # 1 Exhibit 1. Affidavit of M. Tremillo, # 2 Proposed Order)(Olivares, Efren) (Entered: 06/15/2017)
44 Response in Opposition to Motion, filed by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber, re 32 Opposed MOTION to Dismiss the Consolidated CasesOpposed MOTION to Transfer Case to the Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (Attachments: # 1 Proposed Order)(Hicks, Max) (Entered: 06/15/2017)
45 ORDER 38 Motion to Extend Scheduling Order is granted to the extent that a schedule has been requested, but otherwise denied. Movants must file their motions for preliminary injunction by Monday, June 19, 2017 at5:00 p.m. Defendants may file a response to all pending motions for preliminary injunction (including docket no. 24) by Friday, June 23, 2017 at 10:00 a.m. The parties must file a joint written advisory no later than 3:00 p.m. on Friday, June 23 on the estimated length of the hearing and whether they intend to present any evidence or simply oral arguments. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/16/2017)
46 Opposed MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs' Applications for Preliminary Injunction and Post−Hearing Briefing by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/16/2017)
47 REPLY to Response to Motion, filed by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County, re 33 MOTION to Intervene filed by Intervenor Travis County, Intervenor Sheriff Sally Hernandez, Intervenor Judge Sarah Eckhardt, 35 MOTION to supplement Motion to Intervene filed by Intervenor Travis County, Intervenor Sheriff Sally Hernandez, Intervenor Judge Sarah Eckhardt (Thomas, Sherine) (Entered: 06/16/2017)
48 RESPONSE to Motion, filed by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Tom Schmerber, re 46 Opposed MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs' Applications for Preliminary Injunction and Post−Hearing Briefing filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (Hicks, Max) (Entered: 06/16/2017)
49 MOTION to Intervene by City of Dallas, Texas. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Estee, Charles) Modified on 6/19/2017 (rg). (Entered: 06/16/2017)
Notice: to attorney Charles S. Estee***MOTIONS TO INTERVENE ARE TO BE FILED IN THE TRADITION MANNER. SEE RULE 5.(3) OF ADMINISTRATIVE POLICIES AND PROCEDURES FOR ELECTRONIC FILING IN CIVIL AND CRIMINAL CASES***re 49 MOTION to Intervene. (rg) (Entered: 06/19/2017)
50 DOCUMENT DEFICIENT − See Deficiency Notice #60. NOTICE of Attorney Appearance by John Paul Salmon on behalf of City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 35 of 58

06/19/2017 06/19/2017 06/19/2017 06/19/2017 06/19/2017 06/19/2017
06/19/2017
06/19/2017 06/19/2017 06/19/2017

Education, Workers Defense Project. Attorney John Paul Salmon added to party City of San Antonio(pty:conpla), Attorney John Paul Salmon added to party La Union Del Pueblo Entero, Inc.(pty:conpla), Attorney John Paul Salmon added to party Rey A. Saldana(pty:conpla), Attorney John Paul Salmon added to party Texas Association of Chicanos in Higher Education(pty:conpla), Attorney John Paul Salmon added to party Workers Defense Project(pty:conpla) (Salmon, John) Modified on 6/20/2017 (rg). (Entered: 06/19/2017)
51 AMENDED COMPLAINT against All Defendants amending, filed by Texas Organizing Project Education Fund, El Paso County, Richard Wiles, Jo Anne Bernal.(Garza, Jose) Modified on 10/16/2017, to add filer (rf). (Entered: 06/19/2017)
52 Unopposed MOTION for Leave to Exceed Page Limitation for Brief in Support of Application for Preliminary Injunction by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina). (Entered: 06/19/2017)
53 MOTION for Leave to Exceed Page Limitation by City Of Austin. (Attachments: # 1 Proposed Order)(Siegel, Michael) (Entered: 06/19/2017)
54 Unopposed MOTION for Leave to Exceed Page Limitation for Memorandum in Support of Application for Preliminary Injunction by El Paso County, Texas Organizing Project Education Fund, Richard Wiles. (Attachments: # 1 Proposed Order)(Olivares, Efren) (Entered: 06/19/2017)
55 MOTION for Preliminary Injunction by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina). (Entered: 06/19/2017)
56 MOTION for Preliminary Injunction by El Paso County, Texas Organizing Project Education Fund, Richard Wiles. (Attachments: # 1 Exhibit Memorandum in Support of Application for Preliminary Injunction, # 2 Exhibit Index of Exhibits, # 3 Exhibit Declaration of Jo Anne Bernal, # 4 Exhibit Declaration of Texas House Representative Eddie Rodriguez, # 5 Exhibit Declaration of Texas Senator Jos Rodrguez, # 6 Exhibit Declaration of Michelle Tremillo, # 7 Exhibit Declaration of H. Drew Galloway, # 8 Proposed Order)(Olivares, Efren) (Entered: 06/19/2017)
57 MOTION for Preliminary Injunction by City Of Austin. (Attachments: # 1 Affidavit Declaration of Gregorio Casar, # 2 Affidavit Declaration of Delia Garza, # 3 Affidavit Declaration of Steve Adler, # 4 Affidavit Declaration of Brian Manley, # 5 Affidavit Declaration of Sabino Renteria, # 6 Affidavit Declaration of Jacqueline Watson − Part 1, # 7 Affidavit Declaration of Jacqueline Watson − Part 2, # 8 Affidavit Declaration of Jacqueline Watson − Part 3, # 9 Affidavit Declaration of Jacqueline Watson − Part 4, # 10 Affidavit Declaration of Jacqueline Watson − Part 5, # 11 Affidavit Declaration of Jacqueline Watson − Part 6, # 12 Affidavit Declaration of Roland Swenson, # 13 Affidavit Declaration of Ben Johnson, # 14 Affidavit Public Statements by Governor Greg Abbott, # 15 Exhibit 2016 ICE Enforcement and Removal Operations Report, # 16 Exhibit Attorney General Memo Re: Sanctuary Jurisdictions, # 17 Exhibit Transcript: Judge Austin Describing Retaliatory Raids, # 18 Exhibit ICE Fact Sheet (Feb. 13, 2017), # 19 Proposed Order)(Siegel, Michael) (Entered: 06/19/2017)
58 MOTION for Preliminary Injunction by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Attachments: # 1 Exhibit 1 Declaration of Sally Hernandez, # 2 Proposed Order)(Thomas, Sherine) (Entered: 06/19/2017)
59 MOTION for Judicial Notice re 57 MOTION for Preliminary Injunction by City Of Austin. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Siegel, Michael) (Entered: 06/19/2017)
62 MOTION to Appear Pro Hac Vice by Michael Meriwether Hethmon by Immigration Reform Law Institute. (Attachments: # 1 Exhibit, # 2 Proposed Order)(rg) (Entered: 06/20/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 36 of 58

06/19/2017 06/19/2017
06/20/2017 06/20/2017 06/20/2017 06/20/2017 06/20/2017
06/20/2017 06/20/2017
06/20/2017 06/20/2017
06/20/2017 06/20/2017

67 MOTION to Intervene by City of Dallas, Texas. (Attachments: # 1 Proposed Order, # 2 Cmp in Intervention)(rg) (Entered: 06/20/2017)
77 Memorandum in Support of 55 MOTION for Preliminary Injunction by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Exhibit 1−C, # 5 Exhibit 1−D, # 6 Exhibit 1−E, # 7 Exhibit 1−F, # 8 Exhibit 1−G)(rf) (Additional attachment(s) added on 6/23/2017: # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit) (rf). (Entered: 06/22/2017)
60 DEFICIENCY NOTICE: to attorney John Paul Salmon No certificate of service was included in pleading. Please file ONLY the certificate of service in the form of a pleading using the "Certificate of Service" event located under the 'Service of Process' menu. re 50 Notice of Appearance(rg) (Entered: 06/20/2017)
61 CERTIFICATE OF SERVICE by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project for John Paul Salmon's 50 Notice of Appearance,, (Perales, Nina) (Entered: 06/20/2017)
63 ORDER GRANTING 53 the City of Austin's Motion for Leave to File Excess Pages. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/20/2017)
64 ORDER GRANTING 54 Plaintiff's Unopposed Motion for Leave to File Excess Pages. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/20/2017)
Text Order TAKING UNDER ADVISEMENT 59 Motion for Judicial Notice re 57 MOTION for Preliminary Injunction by City Of Austin entered by Chief Judge Orlando L. Garcia. Any party opposing the City of Austin's Motion for Judicial Notice (docket no. 59) must file a written response in opposition no later than 3:00 p.m. on Friday, June 23, 2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/20/2017)
65 ORDER GRANTING 52 for Leave to Exceed Page Limitation for Brief in Support of Application for Preliminary Injunction by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project Signed by Chief Judge Orlando L. Garcia. (rg) Modified on 6/20/2017 (rg). (Entered: 06/20/2017)
Text Order GRANTING 62 Motion to Appear Pro Hac Vice of Michael Meriwether Hethmon by Immigration Reform Law Institute. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/20/2017)
66 ORDER − re 32 Opposed MOTION to Dismiss the Consolidated Cases Opposed MOTION to Transfer Case to the Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety will be held in abeyance pending a decision on subject matter jurisdiction in the case pending in the Austin division. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/20/2017)
Text Order TAKING UNDER ADVISEMENT 49 The Motion to Intervene by the City of Dallas (docket no. 49) is taken under advisement, and any party who opposes the motion must file a written response in opposition no later than 10:00 a.m. on Friday, June 23, 2017 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/20/2017)
68 ORDER GRANTING 33 Motion to Intervene. Signed by Chief Judge Orlando L. Garcia. (rg) Modified on 6/20/2017 (rg). (Entered: 06/20/2017)
69 NOTICE of Withdrawal by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety re 46 Opposed MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs' Applications for Preliminary Injunction and Post−Hearing Briefing (McCarty, Darren) (Entered: 06/20/2017)

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06/20/2017 06/20/2017 06/20/2017 06/21/2017
06/21/2017 06/21/2017 06/21/2017 06/21/2017 06/21/2017 06/21/2017 06/22/2017
06/22/2017 06/22/2017 06/22/2017

70 ORDER GRANTING 46 Granting Defendant's Opposed Motion for Leave to File Excess Pages Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/20/2017)
78 Intervenor COMPLAINT against State of Texas, Greg Abbott, Ken Paxtonfiled by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Attachments: # 1 Exhibit 1)(rf) (Entered: 06/22/2017)
79 MOTION for Preliminary Injunction by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Attachments: # 1 Exhibit)(rf) (Entered: 06/22/2017)
ALL MOVANTS AND NONMOVANTS seeking or opposing preliminary injunctive relief should, in addition to filing their motion and response electronically, bring two sets of binders to the hearing that contain courtesy copies of the motion to response, supporting memoranda, a list of witnesses, if any, an index of exhibits, and the numbered exhibits. All exhibits must be pre−marked and joint exhibits are encouraged. The movants should avoid using the same exhibit numbers. For example, 1−20 could be reserved for the El Cenizo/LULAC group of exhibits, 21−40 could be reserved for the City of San Antonio group of exhibits, 41−60 could be reserved for the El Paso group of exhibits, and so on. The parties must confer and attempt to stipulate to the admissibility of exhibits prior to the hearing. The parties are reminded that evidentiary standards are relaxed in a preliminary injunction hearing. Meritless objections will simply result in undue delay. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/21/2017)
71 MOTION to Dismiss City of Austin's Complaint in Intervention, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/21/2017)
72 MOTION to Dismiss El Paso County et al.'s First Amended Complaint, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/21/2017)
73 NOTICE of appearance by United States (Reuveni, Erez) (Entered: 06/21/2017)
74 NOTICE pursuant to 28 U.S.C. 517 regarding filing of statement of interest and addressing participation in oral argument by United States (Reuveni, Erez) (Entered: 06/21/2017)
75 Unopposed MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs' Applications for Preliminary Injunction (Amended) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/21/2017)
95 Pro Hac Vice Fee Paid by Michael Meriwether Hethmon; Filing fee $ 100, receipt number 500040089. (rf) (Entered: 06/23/2017)
76 NOTICE of Attorney Appearance by William T. Deane on behalf of Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. Attorney William T. Deane added to party Greg Abbott(pty:dft), Attorney William T. Deane added to party Steve McCraw(pty:condft), Attorney William T. Deane added to party Ken Paxton(pty:dft), Attorney William T. Deane added to party State Of Texas(pty:dft), Attorney William T. Deane added to party Texas Department of Public Safety(pty:condft) (Deane, William) (Entered: 06/22/2017)
Text Order GRANTING 75 Unopposed Motion for Leave to File Excess Page Limitation for Response to Plaintiffs' Applications for Preliminary Injunction (Amended)entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/22/2017)
80 MOTION to Intervene by Texas Association of Hispanic County Judges and County Commissioners. (Attachments: # 1 Proposed Order, # 2 Proposed Complaint of Intevention)(rf) (Entered: 06/22/2017)
81 Corporate Disclosure Statement by Texas Association of Hispanic County Judges and County Commissioners re 80 MOTION to Intervene (rf) (Entered: 06/22/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 38 of 58

06/22/2017
06/22/2017
06/22/2017 06/22/2017
06/22/2017 06/22/2017
06/22/2017 06/22/2017 06/22/2017 06/22/2017 06/23/2017 06/23/2017 06/23/2017
06/23/2017

Text Order HELD IN ABEYANCE 71 Motion to Dismiss City of Austin's Complaint in Intervention; HELD IN ABEYANCE 71 Motion to Transfer Case to Austin will be held in abeyance pending a decision on subject matter jurisdiction in the case pending in the Austin division entered b Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/22/2017)
Text Order HELD IN ABEYANCE 72 Motion to Dismiss El Paso County et. al's First Amended Complaint; HELD IN ABEYANCE 72 Motion to Transfer Case to Austin will be held in abeyance pending a decision on subject matter jurisdiction in the case pending in the Austin division. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/22/2017)
82 MOTION to Dismiss Travis County's Complaint in Intervention, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/22/2017)
Text Order HELD IN ABEYANCE 82 Motion to Dismiss Travis County's Complaint in Intervention; HELD IN ABEYANCE 82 Motion to Transfer Case to Austin will be held in abeyance pending a decision on subject matter jurisdiction in the case pending in the Austin division entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/22/2017)
83 Witness List by City Of Austin. (Siegel, Michael) (Entered: 06/22/2017)
84 REPLY to Response to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 32 Opposed MOTION to Dismiss the Consolidated CasesOpposed MOTION to Transfer Case to the Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (McCarty, Darren) (Entered: 06/22/2017)
85 MOTION to Appear Pro Hac Vice by Nina Perales for Yolanda C. Garcia ( Filing fee $ 100 receipt number 0542−9717357) by on behalf of City of San Antonio, Rey A. Saldana. (Perales, Nina) (Entered: 06/22/2017)
86 MOTION to Appear Pro Hac Vice by Nina Perales for Jose F. Sanchez ( Filing fee $ 100 receipt number 0542−9717370) by on behalf of City of San Antonio, Rey A. Saldana. (Perales, Nina) (Entered: 06/22/2017)
87 MOTION to Appear Pro Hac Vice by Nina Perales for Cory D. Szczepanik ( Filing fee $ 100 receipt number 0542−9717379) by on behalf of City of San Antonio, Rey A. Saldana. (Perales, Nina) (Entered: 06/22/2017)
Received 2 CD's from the City of Austin's Opposed Motion for Preliminary Injunction (Document #57) Forward 1 to Court. (rg) (Entered: 06/23/2017)
88 Unopposed MOTION for Leave to Exceed Page Limitation by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/23/2017)
89 Response in Opposition to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 67 MOTION to Intervene filed by Intervenor Plaintiff City of Dallas, Texas (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/23/2017)
Text Order GRANTING 85 Motion to Appear Pro Hac Vice for Yolanda C. Garcia. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
Text Order GRANTING 86 Motion to Appear Pro Hac Vice for Jose F. Sanchez. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the

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06/23/2017
06/23/2017 06/23/2017 06/23/2017
06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017

attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
Text Order GRANTING 87 Motion to Appear Pro Hac Vice for Cory D. Szczepanik. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
Text Order GRANTING 88 Unopposed Motion for Leave to Exceed Page Limitation entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
90 Memorandum in Support Statement of Interest of the United States Pursuant to 28 U.S.C. § 517 by United States. (Reuveni, Erez) (Entered: 06/23/2017)
91 Response in Opposition to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 56 MOTION for Preliminary Injunction filed by Consol Plaintiff Texas Organizing Project Education Fund, Consol Plaintiff Richard Wiles, Consol Plaintiff El Paso County, 58 MOTION for Preliminary Injunction filed by Intervenor Plaintiff Travis County, Intervenor Plaintiff Sheriff Sally Hernandez, Intervenor Plaintiff Judge Sarah Eckhardt, 55 MOTION for Preliminary Injunction filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc., 24 Opposed MOTION for Preliminary Injunction filed by Plaintiff City of El Cenizo, Texas, 79 MOTION for Preliminary Injunction filed by Intervenor Plaintiff Travis County, Intervenor Plaintiff Sheriff Sally Hernandez, Intervenor Plaintiff Judge Sarah Eckhardt, 57 MOTION for Preliminary Injunction filed by Intervenor Plaintiff City Of Austin (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Proposed Order)(Starr, Brantley) (Entered: 06/23/2017)
92 ** *DOCUMENT IS DEFICIENT − MISSING COUNSEL SIGNATURE AND CERTIFICATE OF SERVICE***AFFIDAVIT in Support of 57 MOTION for Preliminary Injunction Declaration of Angelos G. Angelou in Support of the City of Austin's Motion for Preliminary Injunction by City Of Austin. (Siegel, Michael) Modified on 6/23/2017, to designate deficiency (rf). (Entered: 06/23/2017)
93 Response in Opposition to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 59 MOTION for Judicial Notice re 57 MOTION for Preliminary Injunction filed by Intervenor Plaintiff City Of Austin (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/23/2017)
94 ORDER GRANTING re 67 MOTION to Intervene filed by City of Dallas, Texas. Signed by Chief Judge Orlando L. Garcia. (mgr) (Entered: 06/23/2017)
DEFICIENCY NOTICE: ****NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − MISSING COUNSEL'S SIGNATURE AND CERTIFICATE OF SERVICE**** re 92 Affidavit in Support,. (rf) (Entered: 06/23/2017)
96 INTERVENOR COMPLAINT, filed by City of Dallas, Texas.(mgr) Modified on 6/23/2017, to edit text (mgr). (Entered: 06/23/2017)
97 AFFIDAVIT in Support of 57 MOTION for Preliminary Injunction Declaration of Angelos G. Angelou (corrected per Court instruction) by City Of Austin. (Attachments: # 1 Affidavit Declaration of Angelos G. Angelou)(Siegel, Michael) (Entered: 06/23/2017)
98 ADVISORY TO THE COURT by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Perales, Nina) (Entered: 06/23/2017)
99 MOTION to Intervene by The City of Houston. (Attachments: # 1 Proposed Order, # 2 Proposed Complaint of Intervention)(rf) (Entered: 06/23/2017)

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06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/23/2017
06/23/2017
06/23/2017
06/23/2017
06/23/2017
06/23/2017

100 MOTION of Fernando De Leon to Appear Pro Hac Vice by The City of Houston. (rf) (Entered: 06/23/2017)
101 MOTION of Connica Lemond to Appear Pro Hac Vice by The City of Houston. (rf) (Entered: 06/23/2017)
102 MOTION of Patricia L. Casey to Appear Pro Hac Vice by The City of Houston. (rf) (Entered: 06/23/2017)
103 AFFIDAVIT in Support of 57 MOTION for Preliminary Injunction by City Of Austin. (Attachments: # 1 Affidavit Declaration of Tom K. Wong)(Siegel, Michael) (Entered: 06/23/2017)
104 ORDER re 59 Motion for Judicial Notice. Signed by Chief Judge Orlando L. Garcia. (rf) (Entered: 06/23/2017)
105 Exhibit List by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety.. (McCarty, Darren) (Entered: 06/23/2017)
106 NOTICE of Defendants' Objections to Plaintiffs' Exhibits by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 06/23/2017)
The Court has reviewed the parties' joint advisory (docket no. 98). If necessary, the hearing will continue through Tuesday, June 27, 2017. For oral argument, the five groups of Plaintiff Movants (City of San Antonio, El Paso County, City of El Cenizo, City of Austin, and Travis County) will have 45 minutes each; Defendants will have 1.5 hours; Plaintiff Movants will have 20 minutes each for rebuttal; and Defendants will have 15 minutes for surrebuttal. The United States will have 30 minutes to present its statement. The City of Dallas may have 15 minutes to make a statement and proposed intervenors City of Houston and Tex. Ass'n of Hispanic County Judges and County Commissioners will have 10 minutes each to make a statement. Plaintiff Movants may reserve rebuttal arguments until after the presentation of witnesses entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
107 NOTICE of Attorney Appearance by Adam Arthur Biggs on behalf of Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. Attorney Adam Arthur Biggs added to party Greg Abbott(pty:dft), Attorney Adam Arthur Biggs added to party Steve McCraw(pty:condft), Attorney Adam Arthur Biggs added to party Ken Paxton(pty:dft), Attorney Adam Arthur Biggs added to party State Of Texas(pty:dft), Attorney Adam Arthur Biggs added to party Texas Department of Public Safety(pty:condft) (Biggs, Adam) (Entered: 06/23/2017)
Text Order GRANTING 100 Motion to Appear Pro Hac Vice of Fernando De Leon. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
Text Order GRANTING 101 Motion to Appear Pro Hac Vice Connica Lemond. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
Text Order GRANTING 102 Motion to Appear Pro Hac Vice Patricia L. Casey. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/23/2017)
108 Exhibit List for prel. inj by El Paso County, Texas Organizing Project Education Fund, Richard Wiles.. (Garza, Jose) (Entered: 06/23/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 41 of 58

06/23/2017
06/23/2017 06/23/2017 06/23/2017 06/23/2017 06/24/2017 06/24/2017 06/24/2017 06/24/2017 06/26/2017
06/26/2017
06/26/2017
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06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/27/2017

109 MOTION for Leave to File Amicus Brief by Michael M. Hethmon. by Immigration Reform Law Institute. (Attachments: # 1 Brief Amicus Curiae in Support of Defendants and in Opposition to Plaintiffs Application for Preliminary Injunction 24 )(Hethmon, Michael) (Entered: 06/23/2017)
110 Exhibit List by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County.. (Thomas, Sherine) (Entered: 06/23/2017)
117 Pro Hac Vice Fee Paid by Connica Lemond; Filing fee $ 100, receipt number 500040123. (wg) (Entered: 06/26/2017)
118 Pro Hac Vice Fee Paid by Patricia L. Casey; Filing fee $ 100, receipt number 500040124. (wg) (Entered: 06/26/2017)
119 Pro Hac Vice Fee Paid by Fernando De Leon; Filing fee $ 100, receipt number 500040125. (wg) (Entered: 06/26/2017)
111 Exhibit List Supplemental by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project.. (Perales, Nina) (Entered: 06/24/2017)
112 Witness List by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Perales, Nina) (Entered: 06/24/2017)
113 Exhibit List Amended by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety.. (Starr, Brantley) (Entered: 06/24/2017)
114 NOTICE of Defendats' Objections to Plaintiff's Exhibits by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety (Starr, Brantley) (Entered: 06/24/2017)
115 Unopposed MOTION for Leave to File Amicus BriefAnti−Defamation Leage in Support of Plaintiffs' Motions for Preliminary Injunction by Jay D. Ellwanger. by City of El Cenizo, Texas. (Attachments: # 1 Brief of Amicus Curiae)(Ellwanger, Jay) (Entered: 06/26/2017)
116 AFFIDAVIT in Support of 56 MOTION for Preliminary Injunction , 58 MOTION for Preliminary Injunction , 55 MOTION for Preliminary Injunction , 24 Opposed MOTION for Preliminary Injunction , 79 MOTION for Preliminary Injunction, 57 MOTION for Preliminary Injunction by Vince Ryan. (Attachments: # 1 Exhibit Declaration of Vince Ryan)(Hays, Susan) (Entered: 06/26/2017)
120 MOTION to Appear Pro Hac Vice by Nina Perales for Thomas A. Saenz ( Filing fee $ 100 receipt number 0542−9726232) by on behalf of City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/26/2017)
121 Minute Entry for proceedings held before Chief Judge Orlando L. Garcia: Motion Hearing held on 6/26/2017 re 24 Opposed MOTION for Preliminary Injunction filed by City of El Cenizo, Texas. Court takes motion under advisement. (Minute entry documents are not available electronically.). (Court Reporter Karl Myers.)(rg) (Entered: 06/27/2017)
Motion Taken Under Advisement: 24 Opposed MOTION for Preliminary Injunction (rg) (Entered: 06/27/2017)
122 Exhibit List from Preliminary Injunction Hearing by El Paso Plaintiff's (rg) (Entered: 06/27/2017)
123 List of Plaintiffs' JOINT EXHIBITS Preliminary Injunction Hearing (rg) (Entered: 06/27/2017)
124 EXHIBITS Preliminary Injunction Hearing by Greg Abbott, et al. (rg) (Entered: 06/27/2017)
Text Order GRANTING 109 Motion for Leave to File Amicus Brief by Michael M. Hethmon by Immigration Reform Law Institute.entered by Chief Judge Orlando L. Garcia. The Clerk is Ordered to file the brief separately for the record once leave is

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 42 of 58

06/27/2017
06/27/2017
06/27/2017
06/27/2017
06/27/2017 06/27/2017 06/27/2017
06/27/2017 06/28/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017 06/29/2017

granted. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/27/2017)
Text Order GRANTING 115 Unopposed Motion for Leave to File Amicus Brief Anti−Defamation League in Support of Plaintiffs' Motions for Preliminary Injunction entered by Chief Judge Orlando L. Garcia. The Clerk is ORDERED to file the brief separately for the record once leave has been granted. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/27/2017)
Text Order GRANTING 120 Motion to Appear Pro Hac Vice for Thomas A. Saenz. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/27/2017)
Text Order TAKING UNDER ADVISEMENT 99 Motion to Intervene by the City of Houston and any party who opposes the motion must file a written response in opposition no later than 3:00 p.m. on Thursday, June 29, 2017 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/27/2017)
Text Order TAKING UNDER ADVISEMENT 80 Motion to Intervene by Texas Association of Hispanic County Judges and County Commissioners and any party who opposes the motion must file a written response in opposition no later than 3:00 p.m. on Thursday, June 29, 2017 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/27/2017)
Motion Taken Under Advisement: 99 City of Houston MOTION to Intervene (rg) (Entered: 06/27/2017)
Motions Taken Under Advisement: 80 Texas Association of Hispanic County Judges and County Commissioners MOTION to Intervene (rg) (Entered: 06/27/2017)
125 BRIEF in support of Plaintiff's 56 MOTION for Preliminary Injunction , 58 MOTION for Preliminary Injunction, 55 MOTION for Preliminary Injunction, 24 Opposed MOTION for Preliminary Injunction , 59 MOTION for Judicial Notice re 57 MOTION for Preliminary Injunction, 57 MOTION for Preliminary Injunction by Anti−Defamation League.(rg) (Entered: 06/27/2017)
137 BRIEF by Immigration Reform Law Institute. (rg) (Entered: 06/29/2017)
126 SUMMONS Returned Executed by Workers Defense Project, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education. on Ken Paxton on 6/19/2017 (Perales, Nina) (Entered: 06/28/2017)
127 MOTION to Dismiss or Transfer the City of Dallas's Complaint in Intervention by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) (Entered: 06/29/2017)
128 MOTION to Dismiss or Transfer Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) (Entered: 06/29/2017)
129 MOTION to Dismiss or Transfer El Paso County, et al.'s First Amended Complaint for Declaratory Judgment and Injunctive Relief by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) (Entered: 06/29/2017)
130 PROPOSED ORDER MOTION to Dismiss Transfer Plaintiffs' EL Paso County, et al.'s First Amended Complaint for Declaratory Judgment and Injunctive Relief by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) Modified on 6/29/2017 (rg). (Entered: 06/29/2017)
131 RESPONSE to Motion, filed by Greg Abbott, Ken Paxton, State Of Texas, re 99 MOTION to Intervene filed by Movant The City of Houston Defendant's Response to the City of Houston's Opposed Motion to Intervene (McCarty, Darren) (Entered: 06/29/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 43 of 58

06/29/2017
06/29/2017 06/29/2017 06/29/2017 06/29/2017 06/30/2017 06/30/2017 06/30/2017
06/30/2017 06/30/2017 07/03/2017
07/08/2017 07/10/2017 07/10/2017

132 RESPONSE to Motion, filed by Greg Abbott, Ken Paxton, State Of Texas, re 80 MOTION to Intervene filed by Movant Texas Association of Hispanic County Judges and County Commissioners Defendants' Response to the Texas Association of Hispanic County Judges and County Commissioners's Motion and Memorandum in Support of Intervention (McCarty, Darren) (Entered: 06/29/2017)
133 PROPOSED ORDER 78 MOTION to Dismiss to Transfer Travis County, et al.'s Complaint in Intervention by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) Modified on 6/29/2017 (rg). (Entered: 06/29/2017)
134 PROPOSED ORDER to MOTION to Dismiss City of Dallas's Complaint in Intervention by Greg Abbott, Ken Paxton, State Of Texas. (McCarty, Darren) Modified on 6/29/2017 (rg). (Entered: 06/29/2017)
135 PROPOSED ORDER re 80 MOTION to Intervene filed by Movant Texas Association of Hispanic County Judges and County Commissioners Judges (McCarty, Darren) Modified on 6/29/2017 (rg). (Entered: 06/29/2017)
136 PROPOSED ORDER, re 99 MOTION to Intervene filed by Movant The City of Houston (McCarty, Darren) Modified on 6/29/2017 (rg). (Entered: 06/29/2017)
138 ORDER GRANTING 99 The City of Houston's Motion to Intervene. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/30/2017)
139 Intervenor COMPLAINT, filed by The City of Houston against the State of Texas.(rg) (Entered: 06/30/2017)
140 ORDER − ORDERED that the original movants (the El Cenizo plaintiffs; the SanAntonio plaintiffs; the El Paso County plaintiffs; the City of Austin plaintiffs; and the Travis County plaintiffs) may file a supplemental brief not to exceed 20 pages in length no later than Monday, July 10, 2017. The City of Dallas, City of Houston, and Texas Association of Hispanic County Judges and County Commissioners may file a post−hearing brief not to exceed 40 pages no later than Monday, July 10, 2017. Defendants may file an omnibus supplemental brief in response not to exceed 30 pages no later than Thursday, July 20, 2017. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/30/2017)
141 ORDER GRANTING 80 the Texas Association of Hispanic County Judges and County Commissioners Motion to Intervene. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/30/2017)
142 Intervenor COMPLAINT, filed by Texas Association of Hispanic County Judges and County Commissioners against the State of Texas.(rg) (Entered: 06/30/2017)
143 Transcript filed of Proceedings held on June 26, 2017, Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter/Transcriber: Karl H. Myers, Telephone number: 210−244−5037. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 7/24/2017, Redacted Transcript Deadline set for 8/3/2017, Release of Transcript Restriction set for 10/2/2017, (Myers, Karl) (Entered: 07/03/2017)
144 BRIEF by Texas Association of Hispanic County Judges and County Commissioners. (Rios, Rolando) (Entered: 07/08/2017)
145 MOTION to Appear Pro Hac Vice by Nina Perales for Robin E. Wechkin ( Filing fee $ 100 receipt number 0542−9762019) by on behalf of City of San Antonio, Rey A. Saldana. (Perales, Nina) (Entered: 07/10/2017)
146 BRIEF regarding 57 MOTION for Preliminary Injunction by City Of Austin. (Attachments: # 1 Exhibit February 21, 2017 ICE Memorandum)(Siegel, Michael) (Entered: 07/10/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 44 of 58

07/10/2017 07/10/2017 07/10/2017 07/10/2017 07/10/2017
07/10/2017 07/10/2017 07/10/2017
07/11/2017 07/11/2017
07/11/2017 07/12/2017
07/13/2017
07/13/2017

147 Unopposed MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motions for Preliminary Injunction by Jose J. Behar. by Major Cities Chiefs Association, Police Executive Research Forum, United States Conference of Mayors. (Attachments: # 1 Exhibit Brief Amici Curiae)(Behar, Jose) (Entered: 07/10/2017)
148 BRIEF by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County. (Thomas, Sherine) (Entered: 07/10/2017)
149 BRIEF regarding 56 MOTION for Preliminary Injunction by El Paso County, Texas Organizing Project Education Fund, Richard Wiles. (Olivares, Efren) (Entered: 07/10/2017)
150 Memorandum in Support of Plaintiff's Motions and/or Applications for Preliminary Injunction by The City of Houston. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Casey, Patricia) (Entered: 07/10/2017)
151 Memorandum in Support, filed by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project, re 55 MOTION for Preliminary Injunction filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc. (Attachments: # 1 Exhibit A)(Perales, Nina) (Entered: 07/10/2017)
152 BRIEF regarding 24 Opposed MOTION for Preliminary Injunction by City of Dallas, Texas. (Estee, Charles) (Entered: 07/10/2017)
153 MOTION for leave to file BRIEF by Vince Ryan. (Attachments: # 1 Brief Amicus Brief in Support of Plaintiffs)(Hays, Susan) Modified on 7/11/2017 (rg). (Entered: 07/10/2017)
154 SUPPLEMENTAL MEMORANDUM to 24 Opposed MOTION for Preliminary Injunction by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. (Attachments: # 1 Proposed Order Supplemental Proposed Order, # 2 Exhibit Supplemental Declaration of Lupe Torres)(Gelernt, Lee) (Entered: 07/10/2017)
155 DOCUMENT DEFICIENT − See Deficiency Notice #156. Amended MOTION for Leave to File Amicus Brief by Susan Hays. by Vince Ryan. (Attachments: # 1 Brief Amicus Brief in Support of Plaintiffs)(Hays, Susan) Modified on 7/11/2017 (rg). (Entered: 07/11/2017)
156 DEFICIENCY NOTICE: to attorney Susan L. Hays Proposed order required with motion. DO NOT re−file entire document. Please file ONLY the proposed order using the "Attachment" event located under "Other Documents" from menu and link the proposed order to thisdocument. See page 11, item 9d of the Administrative Policies and Procedures for Electronic Filing, Western of District of Texas. re 155 Amended MOTION for Leave to File Amicus Brief by Susan Hays. (rg) (Entered: 07/11/2017)
157 ATTACHMENT Proposed Order to 155 Amended MOTION for Leave to File Amicus Brief by Susan Hays. by Vince Ryan. (Hays, Susan) (Entered: 07/11/2017)
158 Exhibit List Amended Supplemental by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project.. (Attachments: # 1 Exhibit Declaration of Reyna Torres, # 2 Exhibit Declaration of Ramiro Cavazos, # 3 Exhibit Declaration of James Serrato)(Perales, Nina) (Entered: 07/12/2017)
159 RESPONSE to Motion, filed by Judge Sarah Eckhardt, Sheriff Sally Hernandez, Travis County, re 128 MOTION to Dismiss or Transfer Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott (Thomas, Sherine) (Entered: 07/13/2017)
160 RESPONSE to Motion, filed by City of Dallas, Texas, re 127 MOTION to Dismiss or Transfer the City of Dallas's Complaint in Intervention filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott (Estee, Charles) (Entered: 07/13/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 45 of 58

07/14/2017 07/14/2017 07/17/2017 07/17/2017 07/17/2017
07/17/2017 07/17/2017 07/17/2017 07/17/2017 07/17/2017 07/17/2017
07/17/2017 07/19/2017

161 MOTION to Dismiss City of Houston's Complaint in Intervention, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 07/14/2017)
162 MOTION to Dismiss Texas Association of Hispanic County Judges & County Commissioners' Complaint in Intervention, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 07/14/2017)
163 SUMMONS Returned Executed by Workers Defense Project, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education. (Perales, Nina) (Entered: 07/17/2017)
164 SUMMONS Returned Executed by Workers Defense Project, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education. (Perales, Nina) (Entered: 07/17/2017)
Text Order GRANTING 145 Motion to Appear Pro Hac Vice for Robin E. Wechkin. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/17/2017)
Text Order GRANTING 147 Unopposed MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motions for Preliminary Injunction entered by Chief Judge Orlando L. Garcia. The Clerk is Ordered to file the Amicus Brief attached to the Motion for Leave as Exhibit #1. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/17/2017)
Text Order GRANTING 155 Amended Unopposed Motion for Leave to File Amicus Brief entered by Chief Judge Orlando L. Garcia. The Clerk is Ordered to file the Amicus Brief attached to the Motion for Leave to File. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/17/2017)
Text Order MOOTING 153 Motion for Leave to File entered by Chief Judge Orlando L. Garcia. Amended Unopposed Motion was filed document 155 .(This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/17/2017)
165 BRIEF AMICI CURIAE IN SUPPORT regarding 56 MOTION for Preliminary Injunction , 58 MOTION for Preliminary Injunction , 57 MOTION for Preliminary Injunction by Major Cities Chiefs Association, Police Executive Research Forum, United States Conference of Mayors. (wg) (Entered: 07/17/2017)
166 BRIEF OF AMICUS CURIAE VINCE RYAN, HARRIS COUNTY ATTORNEY in Support of regarding 56 MOTION for Preliminary Injunction , 58 MOTION for Preliminary Injunction , 55 MOTION for Preliminary Injunction , 57 MOTION for Preliminary Injunction by Vince Ryan. (wg) (Entered: 07/17/2017)
167 Response in Opposition to Motion, filed by Texas Association of Hispanic County Judges and County Commissioners, re 162 MOTION to Dismiss Texas Association of Hispanic County Judges & County Commissioners' Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (Rios, Rolando) (Entered: 07/17/2017)
169 MOTION to Appear Pro Hac Vice by Robin E. Wechkin by City of San Antonio, Rey A. Saldana. (Attachments: # 1 Proposed Order)(rg) (Entered: 07/19/2017)
168 MOTION to Appear Pro Hac Vice by Patricia L. Casey ( Filing fee $ 100 receipt number 0542−9794855) by on behalf of The City of Houston. (Attachments: # 1 Proposed Order)(Casey, Patricia) (Entered: 07/19/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 46 of 58

07/20/2017
07/20/2017 07/20/2017 07/20/2017
07/20/2017 07/20/2017 07/21/2017 07/21/2017
07/28/2017 07/30/2017

Text Order GRANTING 169 Motion to Appear Pro Hac Vice Robin E. Wechkin. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. If he has not already done so, shall immediately tender the amount of $100.00, made payable to: Clerk, U.S. District Court, in compliance with Local Court Rule AT−l(f)(2).entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/20/2017)
Text Order GRANTING 168 Motion to Appear Pro Hac Vice for Ronald Lewis. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/20/2017)
170 Memorandum in Support Supplemental Statement of Interest of the United States Pursuant to 28 U.S.C. § 517 by United States. (Reuveni, Erez) (Entered: 07/20/2017)
171 REPLY to Response to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety, re 127 MOTION to Dismiss or Transfer the City of Dallas's Complaint in Intervention filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, 162 MOTION to Dismiss Texas Association of Hispanic County Judges & County Commissioners' Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety, 128 MOTION to Dismiss or Transfer Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez filed by Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott (McCarty, Darren) (Entered: 07/20/2017)
172 RESPONSE to Supplemental Post−Hearing Motions for Preliminary Injunction by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (McCarty, Darren) (Entered: 07/20/2017)
174 FIRST AMENDED COMPLAINT against Greg Abbott, Ken Paxton, State Of Texas amending, filed by City of San Antonio, Texas, Bexar County, City of El Paso, Texas, Rey A. Saldana, Texas Association of Chicanos in Higher Education, La Union Del Pueblo Entero and Workers Defense Project. (rg) Modified on 7/25/2017 (rg). Modified on 9/8/2017 (rg). (Entered: 07/21/2017)
Notice to attorneys of record:***THIS MOTION IS A DUPLICATE OF DOCUMENT #145 AND WAS FILED IN ERROR. NO ACTION NEEDED*** re 169 MOTION to Appear Pro Hac Vice. (rg) (Entered: 07/21/2017)
173 Omnibus ANSWER to 51 Amended Complaint, 96 Complaint, 78 Intervenor Complaint, 31 Amended Complaint, 37 Intervenor Complaint , ANSWER to 51 Amended Complaint, 96 Complaint, 78 Intervenor Complaint, 31 Amended Complaint, 37 Intervenor Complaint , ANSWER to 51 Amended Complaint, 96 Complaint, 78 Intervenor Complaint, 31 Amended Complaint, 37 Intervenor Complaint , ANSWER to 51 Amended Complaint, 96 Complaint, 78 Intervenor Complaint, 31 Amended Complaint, 37 Intervenor Complaint , ANSWER to 51 Amended Complaint, 96 Complaint, 78 Intervenor Complaint, 31 Amended Complaint, 37 Intervenor Complaint by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety.(McCarty, Darren) (Entered: 07/21/2017)
175 RESPONSE to Motion, filed by The City of Houston, re 161 MOTION to Dismiss City of Houston's Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Consol Defendant Steve McCraw, Defendant Ken Paxton, Defendant State Of Texas, Defendant Greg Abbott, Consol Defendant Texas Department of Public Safety (Casey, Patricia) (Entered: 07/28/2017)
176 BRIEF regarding 56 MOTION for Preliminary Injunction , 58 MOTION for Preliminary Injunction , 55 MOTION for Preliminary Injunction , 24 Opposed MOTION for Preliminary Injunction , 79 MOTION for Preliminary Injunction, 57

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 47 of 58

08/02/2017 08/03/2017 08/15/2017
08/15/2017 08/15/2017 08/15/2017 08/15/2017 08/15/2017 08/17/2017

MOTION for Preliminary Injunction by City Of Austin, City Of El Paso, City of Dallas, Texas, City of El Cenizo, Texas, City of San Antonio, Judge Sarah Eckhardt, El Paso County, Mario A. Hernandez, Sheriff Sally Hernandez, La Union Del Pueblo Entero, Inc., League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Rey A. Saldana, Tom Schmerber, Texas Association of Chicanos in Higher Education, Texas Association of Hispanic County Judges and County Commissioners, Texas Organizing Project Education Fund, The City of Houston, Travis County, Richard Wiles, Workers Defense Project. (Attachments: # 1 Exhibit Attachment A)(Harrington, James) (Entered: 07/30/2017)
177 MOTION to Dismiss San Antonio Plaintiffs' Amended Complaint, MOTION to Transfer Case to Austin Division by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 08/02/2017)
178 AMENDED ANSWER to All Operative Complaints of Plaintiffs and Intervenor−Plaintiffs by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (McCarty, Darren) (Entered: 08/03/2017)
179 ORDER DENYING re 129 MOTION to Dismiss or Transfer El Paso County, et al.'s First Amended Complaint for Declaratory Judgment and Injunctive Relief filed by Ken Paxton, State Of Texas, Greg Abbott, 71 MOTION to Dismiss City of Austin's Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 161 MOTION to Dismiss City of Houston's Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 72 MOTION to Dismiss El Paso County et al.'s First Amended Complaint MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 177 MOTION to Dismiss San Antonio Plaintiffs' Amended Complaint MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 127 MOTION to Dismiss or Transfer the City of Dallas's Complaint in Intervention filed by Ken Paxton, State Of Texas, Greg Abbott, 82 MOTION to Dismiss Travis County's Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 32 Opposed MOTION to Dismiss the Consolidated CasesOpposed MOTION to Transfer Case to the Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 162 MOTION to Dismiss Texas Association of Hispanic County Judges & County Commissioners' Complaint in Intervention MOTION to Transfer Case to Austin Division filed by Steve McCraw, Ken Paxton, State Of Texas, Greg Abbott, Texas Department of Public Safety, 128 MOTION to Dismiss or Transfer Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez filed by Ken Paxton, State Of Texas, Greg Abbott. Signed by Chief Judge Orlando L. Garcia. (wg) (Entered: 08/15/2017)
180 SUMMONS Returned Executed by Workers Defense Project, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education. (Perales, Nina) (Entered: 08/15/2017)
181 SUMMONS Returned Executed by Workers Defense Project, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education. (Perales, Nina) (Entered: 08/15/2017)
182 MOTION to Appear Pro Hac Vice by attorney Naimeh Salem by City of El Cenizo, Texas. (Attachments: # 1 Proposed Order)(rg) (Entered: 08/18/2017)
183 MOTION to Appear Pro Hac Vice by attorney Raed Gonzalez by City of El Cenizo, Texas. (Attachments: # 1 Proposed Order)(rg) (Entered: 08/18/2017)
184 MOTION for Leave to File Amicus Brief by Noel Suniga. by Gonzalez Olivieri, LLC. (Attachments: # 1 Brief)(rg) (Entered: 08/22/2017)
185 MOTION for Leave to File Amicus Brief by The Commission of Human Rights of Mexico. (Attachments: # 1 Brief)(rg) (Entered: 08/22/2017)

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08/24/2017 08/24/2017 08/30/2017 08/30/2017
08/31/2017 08/31/2017 08/31/2017
08/31/2017

186 Unopposed MOTION for Leave to File Amicus Brief by Michael J. Cosentino. by City of San Marcos. (Attachments: # 1 Brief Brief of Amicus Curiae City of San Marcos)(Cosentino, Michael) (Entered: 08/24/2017)
187 DEFICIENCY NOTICE: to attorney Michael J. Cosentino /font> Document submitted is on our list of documents that should not be electronically filed. FOR FUTURE FILINGS This is a new party that is being added to the suit and it should have been filed in the traditional manner like all the other Amicus Parties. re 186 Unopposed MOTION for Leave to File Amicus Brief by Michael J. Cosentino. (rg) Modified on 8/24/2017 (rg). (Entered: 08/24/2017)
188 Unopposed MOTION to Withdraw Marisa Bono as Counsel by City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project, Bexar County, City of El Paso. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 08/30/2017)
189 ORDER GRANTING 24 26 154 El Cenizo Plaintiffs' Motion for Preliminary Injunction; GRANTING 55 77 151 158 San Antonio Plaintiffs' Motion for Preliminary Injunction; GRANTING 56 149 El Paso County Plaintiffs' Motion for Preliminary Injunction; GRANTING 57 97 103 146 City of Austin's Motion for Preliminary Injunction; GRANTING 152 City of Dallas' Motion for Preliminary Injunction; GRANTING 58 79 148 Travis County Plaintiffs' Motion for Preliminary Injunction; GRANTING 150 City of Houston's Motion for Preliminary Injunction; and GRANTING 144 Texas Association of Hispanic County Judges and County Commissioners' Motion for Preliminary Injunction. IT IS THEREFORE ORDERED that Defendants are ENJOINED from implementing and enforcing the provisions of SB 4 identified on pages 93 and 94 of this Order. Signed by Chief Judge Orlando L. Garcia. (Attachments: # 1 S.B. No. 4) (kh) (Entered: 08/30/2017)
190 Appeal of Order entered by District Judge 189 by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. No filing fee submitted (McCarty, Darren) (Entered: 08/31/2017)
191 Opposed MOTION to Stay Pending Appeal by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 08/31/2017)
NOTICE OF APPEAL of the 189 Order 190 Notice of Appeal (E−Filed) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 08/31/2017)
Text Order DENYING 191 Opposed Motion to Stay Pending Appeal. Pending before the Court is Defendants' application for stay pending appeal of the Court's preliminary injunction order enjoining them from implementing and enforcing certain provisions in SB 4, which goes into effect September 1, 2017. [Docket no. 191]. As explained in the Court's order, the preliminary injunction preserves the status quo. Only those portions of SB 4 that, on their face, are preempted by federal law and violate the United States Constitution are being enjoined. A stay would alter the status quo and allow the entirety of SB 4 to be implemented and enforced on September 1 despite prior findings of preemption and unconstitutionality. Defendants have not met their burden that the Court considers in deciding whether to grant a stay pending appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings and (4) where the public interest lies." Planned Parenthood of Great Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013). "A stay is not a matter of right, even if irreparable injury might otherwise result to [Defendants]." Id. Defendants merely repeat the same arguments they made in opposition to the preliminary injunction, which the Court has carefully considered and rejected. Defendants have not made a showing (much less a strong showing) that they will likely succeed on the merits. Defendants will not be irreparably injured if the enjoined portions of SB 4 are not implemented and enforced on September 1. While Defendants have an interest in implementing and enforcing their enacted laws, the protection of constitutional rights

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 49 of 58

09/01/2017 09/01/2017
09/06/2017
09/06/2017
09/06/2017 09/07/2017 09/07/2017 09/07/2017 09/07/2017 09/07/2017 09/07/2017 09/07/2017

is paramount. Substantial injury, including constitutional violations, will occur to other interested parties if a stay were to be granted and SB 4, in its entirety, were to be implemented and enforced. The public interest will not be served by granting a stay and allowing SB 4, which has been found to be preempted and unconstitutional on its face, to be implemented and enforced in its entirety. For these reasons, Defendants' motion for stay pending appeal (docket no. 191) is DENIED. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.)(ju) (Entered: 08/31/2017)
192 Amended Appeal of Order entered by District Judge 189 by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. ( Filing fee $ 505 receipt number 0542−9938714) (McCarty, Darren) (Entered: 09/01/2017)
AMENDED NOTICE OF APPEAL 189 following 192 Notice of Appeal (E−Filed) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. Filing fee $ 505.00, receipt number 0542−9932940. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 09/01/2017)
Text Order GRANTING 182 Motion to Appear Pro Hac Vice of Naimeh Salem. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/06/2017)
Text Order GRANTING 183 Motion to Appear Pro Hac Vice of attorney Raed Gonzalez. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/06/2017)
Text Order GRANTING 188 Motion to Withdraw Marisa Bono as Counsel entered by Chief Judge Orlando L. Garcia. It is ORDERD that Marisa Bono is withdrawn as counsel of record in this case. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/06/2017)
193 TRANSCRIPT REQUEST by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas for dates of JUNE 26, 2017. Proceedings Transcribed: PRELIMINARY INJUNCTION HEARING. Court Reporter: KARL H. MYERS. ***TRANSCRIPT IS ALREADY ON FILE IN THE CLERK'S OFFICE*** (dtg) (Entered: 09/07/2017)
Text Order GRANTING 184 MOTION for Leave to File Amicus Brief by Noel Suniga entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/07/2017)
Text Order GRANTING 185 MOTION for Leave to File Amicus Brief by The Commission of Human Rights of Mexico entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/07/2017)
Text Order GRANTING 186 Unopposed MOTION for Leave to File Amicus Brief by the City of San Marcos entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/07/2017)
195 AMICUS BRIEF by Gonzalez Olivieri, LLC. (rg) (Entered: 09/11/2017)
196 AMICUS BRIEF by The Commission of Human Rights of Mexico. (rg) (Entered: 09/11/2017)
197 AMICUS BRIEF by City of San Marcos. (rg) (Entered: 09/11/2017)

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09/08/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017
09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/11/2017 09/12/2017 09/12/2017 09/12/2017 09/12/2017
09/12/2017 09/12/2017

194 MOTION to Appear Pro Hac Vice by Nina Perales for David W. Dummer by on behalf of City of San Antonio, Rey A. Saldana. (Perales, Nina) (Entered: 09/08/2017)
198 DEFENDANTS EXHIBITS Preliminary Injunction Hearing by State Of Texas. (Attachments: # 1 Exhibits 1−7, # 2 Exhibits 8−9)(fs) Modified on 9/11/2017 (fs). (Entered: 09/11/2017)
199 DEFENDANTS EXHIBITS Preliminary Injunction Hearing by State Of Texas. (Attachments: # 1 Exhibits 10−11, # 2 Exhibits 12−15, # 3 Exhibits 16−19)(fs) Modified on 9/11/2017 (fs). (Entered: 09/11/2017)
200 DEFENDANTS EXHIBITS Preliminary Injunction Hearing by State Of Texas. (Attachments: # 1 Exhibits 20−26, # 2 Exhibit 27, # 3 Exhibits 28−30)(fs) (Entered: 09/11/2017)
201 PLAINTIFFS EXHIBITS Preliminary Injunction Hearing by El Paso County. (Attachments: # 1 Exhibits 201−202, # 2 Exhibits 203−209, # 3 Exhibit 210, # 4 Exhibits 211−213, # 5 Exhibits 214−218)(fs) Modified Text on 9/12/2017 (fs). (Entered: 09/11/2017)
202 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of El Cenizo, Texas. (Attachments: # 1 Exhibits P−1 thru P−9)(fs) (Entered: 09/11/2017)
203 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by Travis County. (Attachments: # 1 Exhibit P−101)(fs) (Entered: 09/11/2017)
204 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by El Paso County. (Attachments: # 1 Exhibits P−201 − P−205)(fs) Modified Text on 9/12/2017 (fs). (Entered: 09/11/2017)
205 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−301−A − P−301−O)(fs) (Entered: 09/11/2017)
206 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−302 − P−302−C)(fs) (Entered: 09/11/2017)
207 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−302−E, G, H, I)(fs) (Entered: 09/11/2017)
208 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−303 and P−303−A)(fs) (Entered: 09/11/2017)
209 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−304 − P−306)(fs) (Entered: 09/11/2017)
210 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−306−A and P−306−B)(fs) Modified on 9/11/2017 (fs). (Entered: 09/11/2017)
211 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−307 and P−308)(fs) (Entered: 09/12/2017)
212 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−309−A, B, and P−310)(fs) (Entered: 09/12/2017)
213 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−311 − P−314)(fs) (Entered: 09/12/2017)
214 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City of San Antonio. (Attachments: # 1 Exhibits P−315 − P−317) MP3 Recordings Not Available for Exhibits P−302−D and P−302−F(fs) Modified on 9/12/2017 (fs). (Entered: 09/12/2017)
215 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibits P−401 − P−414)(fs) (Entered: 09/12/2017)
216 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibits P−415−A − D)(fs) (Entered: 09/12/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 51 of 58

09/12/2017 09/12/2017 09/12/2017 09/12/2017 09/13/2017
09/13/2017 09/13/2017
09/22/2017
09/25/2017
09/29/2017 09/29/2017 09/29/2017 09/29/2017

217 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibit P−415−E)(fs) (Entered: 09/12/2017)
218 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibits P−415−F, Appendix 1 and 2)(fs) (Entered: 09/12/2017)
219 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibit P−415−F, Appendix 3, # 2 Exhibit P−415−F, Appendix 4, # 3 Exhibits P−416 − P−418)(fs) (Entered: 09/12/2017)
220 PLAINTIFFS JOINT EXHIBITS Preliminary Injunction Hearing by City Of Austin. (Attachments: # 1 Exhibits P−419 − P−423, # 2 Exhibits P−424 − P−429)(fs) (Entered: 09/12/2017)
Text Order GRANTING 194 Motion to Appear Pro Hac Vice for David W. Dummer. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/13/2017)
Certification of the Electronic Record on Appeal in USCA #17−50762 has been accepted by the 5th Circuit. re 190 Notice of Appeal, 192 Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dtg) (Entered: 09/13/2017)
Certification of the Electronic Record on Appeal (Supplemental #1 record) in USCA #17−50762 has been accepted by the 5th Circuit re 190 Notice of Appeal, 192 Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dtg) (Entered: 09/13/2017)
221 ORDER of USCA (certified copy). ORDER:IT IS ORDERED THAT THE MOTION OF THE STATES OF WEST VIRGINIA, LOUISIANA, ALABAMA, ARKANSAS, GEORGIA, MISSOURI, OKLAHOMA, AND SOUTH CAROLINA TO FILE AN AMICUS BRIEF IN SUPPORT OF APPELLANTS' MOTION FOR STAY IS DENIED. re 190 Notice of Appeal, 192 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 09/26/2017)
222 ORDER of USCA (certified copy). ORDER: AS JUST DESCRIBED, THE DISTRICT COURT'S INJUNCTION ORDER IS STAYED IN PART. THE DEFENDANTS' MOTION IS OTHERWISE DENIED. re 190 Notice of Appeal, 192 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 09/26/2017)
223 Appeal of Order entered by District Judge 189 by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. ( Filing fee $ 505 receipt number 0542−10033054) (Salmon, John) (Entered: 09/29/2017)
224 Appeal of Order entered by District Judge 189 by El Paso County, Move San Antonio, Texas Association of Hispanic County Judges and County Commissioners, Texas Organizing Project Education Fund, Richard Wiles. No filing fee submitted (Garza, Jose) (Entered: 09/29/2017)
225 Appeal of Order entered by District Judge 189 by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. ( Filing fee $ 505 receipt number 0542−10033303) (Gelernt, Lee) (Entered: 09/29/2017)
226 NOTICE OF APPEAL following 223 Notice of Appeal (E−Filed), by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. Filing fee $ 505.00, receipt number 0542−10033054. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 10/02/2017)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 52 of 58

09/29/2017 09/29/2017 10/02/2017 10/02/2017 10/03/2017
10/16/2017 10/23/2017

227 NOTICE OF APPEAL following 224 Notice of Appeal (E−Filed), (No Filing Fee Submitted) by El Paso County, Move San Antonio, Texas Association of Hispanic County Judges and County Commissioners, Texas Organizing Project Education Fund, Richard Wiles. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 10/02/2017)
NOTICE OF APPEAL following 225 Notice of Appeal (E−Filed), by City Of Austin, City of Dallas, Texas, City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber, The City of Houston, Travis County. Filing fee $ 505.00, receipt number 0542−10033303. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 10/02/2017)
228 Amended Appeal of Order entered by District Judge 189 by City of El Cenizo, Texas, Mario A. Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber. No filing fee submitted (Gelernt, Lee) (Entered: 10/02/2017)
AMENDED NOTICE OF APPEAL following 228 Notice of Appeal (E−Filed) (No Fee Submitted) by City Of Austin, City of Dallas, Texas, City of El Cenizo, Texas, Judge Sarah Eckhardt, Mario A. Hernandez, Sheriff Sally Hernandez, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, Tom Schmerber, The City of Houston, Travis County. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 10/03/2017)
229 ORDER of USCA (certified copy). ORDER: IT IS FURTHER ORDERED THAT THE ALTERNATIVE OPPOSED MOTION OF APPELLANTS/CROSS−APPELLEES TO MODIFY THE SCHEDULE FOR THE REMAINING BRIEFS DUE UNDER RULE 28.1, ORDER PLAINTIFFS TO SERVE A BINDING STATEMENT OF ISSUES IN THE CROSS−APPEAL, AND EXPAND THE WORD LIMIT FOR DEFENDANTS' RULE 28.1(c)(3) RESPONSE AND REPLY BRIEF, AS DESCRIBED IN PARAGRAPH NINE OF THIS MOTION IS GRANTED IN PART, THE ALTERNATIVE BRIEFING SCHEDULE IS MODIFIED TO REQUIRE CROSS−APPELLANTS TO FILE THEIR STATEMENT OF ISSUES ON CROSS−APPEALS NO LATER THAN FRIDAY, OCTOBER 6, 2017. re 228 Notice of Appeal, 225 Notice of Appeal, 224 Notice of Appeal, 223 Notice of Appeal, 192 Notice of Appeal, 190 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) Modified TEXT on 10/4/2017 (dtg). (Entered: 10/04/2017)
230 ORDER of USCA (certified copy) regarding ORDER: IT IS ORDERED THAT APPELLANTS CROSS−APPELLEES' MR. GREG ABBOTT, MR. STEVE MCCRAW, MR. KEN PAXTON AND STATE OF TEXAS OPPOSED MOTION TO EXPAND THE WORD LIMIT FOR DEFENDANTS' RULE 28.1(c)(3) RESPONSE AND REPLY BRIEF IS GRANTED IN PART. DEFENDANTS' RESPONSE/REPLY BRIEF IS EXTENDED TO 15,000 WORDS. COUNSEL FOR PLAINTIFFS ARE URGED TO CONSOLIDATE THEIR BRIEFING TO THE GREATEST EXTEND POSSIBLE. re 224 Notice of Appeal, 225 Notice of Appeal, 228 Notice of Appeal, 223 Notice of Appeal, 192 Notice of Appeal, 190 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) Modified TEXT on 10/16/2017 (dtg). (Entered: 10/16/2017)
231 ORDER of USCA (certified copy) regarding ORDER: IT IS ORDERED THAT THE MOTION OF CITY OF LAREDO, TEXAS; COUNTY OF SANTA CLARA, CALIFORNIA; THE COUNTY OF ALAMEDA, CALIFORNIA, et al. FOR LEAVE TO FILE AN AMICUS BRIEF IN SUPPORT OF APPELLEES CROSS−APPELLANTS IS GRANTED. re 223 Notice of Appeal, 224 Notice of

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 53 of 58

10/24/2017
10/31/2017 11/06/2017 01/30/2018 01/30/2018 05/30/2018

Appeal, 225 Notice of Appeal, 228 Notice of Appeal, 190 Notice of Appeal, 192 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 10/26/2017)
232 ORDER of USCA (certified copy) regarding ORDER: IT IS ORDERED THAT THE MOTION FILED BY AMERICAN GATEWAYS, BORDER NETWORK FOR HUMAN RIGHTS, EQUAL JUSTICE CENTER, GRASSROOTS LEADERSHIP, HOPE FAMILY HEALTH CENTER, et al. TO FILE AN AMICUS BRIEF IN SUPPORT OF PLAINTIFFS−APPELLEES CROSS−APPELLANTS IS GRANTED. re 223 Notice of Appeal, 224 Notice of Appeal, 225 Notice of Appeal, 228 Notice of Appeal, 190 Notice of Appeal, 192 Notice of Appeal. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 10/26/2017)
233 MOTION to Correct Docket Sheets for Cause Numbers 5:17−cv−404, 5:17−cv−459, and 5:17−cv−489 by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Proposed Order)(Salmon, John) (Entered: 10/31/2017)
Text Order GRANTING 233 MOTION to Correct Docket Sheets for Cause Numbers 5:17−cv−404, 5:17−cv−459, and 5:17−cv−489 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 11/06/2017)
234 MOTION to Withdraw as Attorney by Greg Abbott, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Deane, William) (Entered: 01/30/2018)
Text Order GRANTING 234 Motion to Withdraw as Attorney entered by Chief Judge Orlando L. Garcia. IT IS THEREFORE ORDERED by the Court that William T. Deane is hereby granted leave to withdraw as counsel of record for the Defendants in this matter.(This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 01/30/2018)
238 Certified copy of USCA JUDGMENT/MANDATE Affirming 224 Notice of Appeal (E−Filed), filed by Texas Organizing Project Education Fund, Move San Antonio, Texas Association of Hispanic County Judges and County Commissioners, Richard Wiles, El Paso County, 223 Notice of Appeal (E−Filed), filed by Texas Association of Chicanos in Higher Education, Bexar County, Texas, City Of El Paso, Workers Defense Project, Rey A. Saldana, City of San Antonio, La Union Del Pueblo Entero, Inc., Notice of Appeal,,, filed by The City of Houston, Mario A. Hernandez, Tom Schmerber, City of El Cenizo, Texas, Travis County, League Of United Latin American Citizens, Maverick County, Raul L. Reyes, City Of Austin, City of Dallas, Texas, Notice of Appeal,, filed by Ken Paxton, Texas Department of Public Safety, Steve McCraw, State Of Texas, Greg Abbott, 226 Notice of Appeal,, filed by Bexar County, Texas, Texas Association of Chicanos in Higher Education, City Of El Paso, Workers Defense Project, Rey A. Saldana, City of San Antonio, La Union Del Pueblo Entero, Inc., 227 Notice of Appeal,, filed by Texas Organizing Project Education Fund, Move San Antonio, El Paso County, Texas Association of Hispanic County Judges and County Commissioners, Richard Wiles, 192 Notice of Appeal (E−Filed) filed by Ken Paxton, Texas Department of Public Safety, Steve McCraw, State Of Texas, Greg Abbott, Notice of Appeal,,, filed by The City of Houston, Mario A. Hernandez, Tom Schmerber, City of El Cenizo, Texas, Travis County, Sheriff Sally Hernandez, Judge Sarah Eckhardt, League Of United Latin American Citizens, Raul L. Reyes, Maverick County, City of Dallas, Texas, City Of Austin, Notice of Appeal,, filed by Ken Paxton, Texas Department of Public Safety, Steve McCraw, State Of Texas, Greg Abbott, 190 Notice of Appeal (E−Filed) filed by Ken Paxton, Texas Department of Public Safety, Steve McCraw, State Of Texas, Greg Abbott, 228 Notice of Appeal (E−Filed) filed by Mario A. Hernandez, Tom Schmerber, City of El Cenizo, Texas, League Of United Latin American Citizens, Raul L. Reyes, Maverick County, 225 Notice of Appeal (E−Filed), filed by Mario A. Hernandez, Tom Schmerber, City of El Cenizo, Texas, League Of United Latin American Citizens, Raul L. Reyes, Maverick County.**This cause was considered on the record on appeal and was argued by counsel. It is ordered and adjudged that the judgment of the District Court is affirmed on the part the district courts preliminary injunction, vacated in large part and remand with instructions to dismiss the vacated injunction provisions. IT IS

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 54 of 58

09/05/2018 09/07/2018 12/05/2018 12/11/2018
04/05/2019 04/09/2019 04/22/2019 05/21/2019 05/21/2019 06/04/2019 06/05/2019
06/19/2019

FURTHER ORDERED that each party bear its own costs on appeal.** (Attachments: # 1 Transmittal Letter from USCA)(fs) (Entered: 03/14/2019)
235 Unopposed MOTION to Substitute Attorney by Jo Anne Bernal, El Paso County, Richard Wiles. (Attachments: # 1 Proposed Order)(Moran, Michael) (Entered: 09/05/2018)
236 ORDER GRANTING 235 Motion to Substitute Attorney. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/10/2018)
237 MOTION to Withdraw as Attorney Celina Moreno by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 12/05/2018)
Text Order GRANTING 237 Motion to Withdraw as Attorney entered by Chief Judge Orlando L. Garcia. It is therefore ORDERD that Celina Moreno is withdrawn as counsel of record for Plaintiffs City of San Antonio, Bexar County, City of El Paso, Rey A. Saldaa, Texas Association of Chicanos in Higher Education, La Union Del Pueblo Entero, and Workers Defense Project in this case and consolidated cases 5:17−CV−459−OLG and 5:17−CV−489−OLG. The Clerk is instructed to remove Ms. Moreno from further electronic notifications for cases 5:17−CV−404−OLG, 5:17−CV−459−OLG, and 5:17−CV−489−OLG.(This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 12/11/2018)
239 MOTION to Withdraw as Attorney Jack Salmon by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 04/05/2019)
240 ORDER GRANTING 239 Motion to Withdraw Attorney Jack Salmon. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 04/10/2019)
241 ORDER re 238 USCA Judgment/Mandate. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 04/22/2019)
242 MOTION for Extension of Time to File Advisory and Joint Proposed Scheduling Order by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 05/21/2019)
Text Order GRANTING 242 Plaintiffs' Joint Motion for Extension of Time to File. II IS THEREFORE ORDERED that the deadlines set forth in this Courts April 22, 2019 Order (see Dkt. 241) are extended until June 21, 2019 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/21/2019)
243 MOTION to Withdraw as Attorney Cory Szczepanik by City of San Antonio, Rey A. Saldana. (Attachments: # 1 Proposed Order)(Szczepanik, Cory) (Entered: 06/04/2019)
Text Order GRANTING 243 Motion to Withdraw as Attorney. It is THEREFORE ORDERED that Cory Szczepanik is withdrawn as counsel of record for Plaintiffs City of San Antonio and Rey A. Saldaa in this case and consolidated cases 5:17−CV−459−OLG and 5:17−CV−489−OLG. The Clerk is instructed to remove Mr. Szczepanik from further electronic notifications for cases 5:17−CV−404−OLG, 5:17−CV−459−OLG, and 5:17−CV−489−OLG entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/05/2019)
244 MOTION for Extension of Time to File Advisory and Joint Proposed Scheduling Order by City Of Austin, City of Dallas, Texas, City of El Cenizo, Texas, City of San Antonio, El Paso County, Move San Antonio, Texas Association of Hispanic County Judges and County Commissioners, Texas Organizing Project Education Fund, The City of Houston. (Attachments: # 1 Proposed Order)(Casey, Patricia) (Entered: 06/19/2019)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 55 of 58

06/21/2019
07/12/2019
07/16/2019 07/17/2019 07/19/2019
07/19/2019 07/19/2019 07/19/2019 07/19/2019 07/19/2019 07/22/2019
07/22/2019
07/22/2019
07/25/2019

Text Order GRANTING 244 Motion for Extension of Time to File Advisory and Proposed Scheduling Order. It is therefore ORDERED that the deadlines set forth in this Courts April 22, 2019 Order (see Dkt. 241) are extended until July 22, 2019 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 06/21/2019)
245 NOTICE of Attorney Appearance by Lesli Gattis Ginn on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney Lesli Gattis Ginn added to party Greg Abbott(pty:dft), Attorney Lesli Gattis Ginn added to party Ken Paxton(pty:dft), Attorney Lesli Gattis Ginn added to party State Of Texas(pty:dft) (Ginn, Lesli) (Entered: 07/12/2019)
246 NOTICE of Attorney Appearance by Lesli Gattis Ginn on behalf of Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. Attorney Lesli Gattis Ginn added to party Steve McCraw(pty:condft) (Ginn, Lesli) (Entered: 07/16/2019)
247 Unopposed MOTION for Extension of Time to File Advisory and Joint Proposed Scheduling Order by The City of Houston. (Attachments: # 1 Proposed Order)(Lewis, Ronald) (Entered: 07/17/2019)
Text Order GRANTING 247 Unopposed Motion for Extension of Time to File. It is therefore ORDERED that the deadlines set forth in this Courts April22, 2019 Order (see Dkt. 241) are extended by an additional 45 days untilSeptember 12, 2019 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/19/2019)
Set/Reset Deadlines: Scheduling Recommendations/Proposed Scheduling Order due by 9/12/2019 (aej) (Entered: 07/19/2019)
248 Unopposed MOTION to Withdraw as Attorney (Andrew Leonie) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Ginn, Lesli) (Entered: 07/19/2019)
249 Unopposed MOTION to Withdraw as Attorney (David Austin Robert Nimocks) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Ginn, Lesli) (Entered: 07/19/2019)
250 Unopposed MOTION to Withdraw as Attorney (Joel Stonedale) by Greg Abbott, Steve McCraw, Ken Paxton, State of Texas. (Attachments: # 1 Proposed Order)(Ginn, Lesli) Modified filers and docket text on 7/19/2019 (aej). (Entered: 07/19/2019)
Notice of Correction:***NOTIFIED COUNSEL THAT CORRECTED FILERS WERE ADDED TO ENTRY*** re 250 Unopposed MOTION to Withdraw as Attorney (Joel Stonedale). (aej) (Entered: 07/19/2019)
Text Order GRANTING 248 Unopposed Motion to Withdraw as Attorney. Accordingly, it is ORDERED, ADJUDGED and DECREED that AndrewLeonie is hereby withdrawn as counsel of record for Defendants in this matter entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/22/2019)
Text Order GRANTING 249 Unopposed Motion to Withdraw as Attorney. Accordingly, it is ORDERED, ADJUDGED and DECREED that David Austin Robert Nimocks is hereby withdrawn as counsel of record for Defendants in this matter entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/22/2019)
Text Order GRANTING 250 Unopposed Motion to Withdraw as Attorney. Accordingly, it is ORDERED, ADJUDGED and DECREED that Joel Stonedale is hereby withdrawn as counsel of record for Defendants in this matter entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 07/22/2019)
251 NOTICE of Attorney Appearance by Sean P. Flammer on behalf of Greg Abbott, Ken Paxton, State Of Texas. Attorney Sean P. Flammer added to party Greg Abbott(pty:dft), Attorney Sean P. Flammer added to party Ken Paxton(pty:dft), Attorney Sean P. Flammer added to party State Of Texas(pty:dft) (Flammer, Sean) (Entered: 07/25/2019)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 56 of 58

08/01/2019 08/02/2019 08/07/2019 08/09/2019 08/09/2019 08/20/2019 08/26/2019 08/28/2019 09/03/2019
09/12/2019 09/12/2019 09/12/2019 09/12/2019 09/13/2019

252 Unopposed MOTION to Withdraw as Attorney (Brantley Starr) by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(Starr, Brantley) (Entered: 08/01/2019)
253 MOTION to Withdraw as Attorney Jose F. Sanchez by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 08/02/2019)
254 NOTICE of Attorney Appearance by Sameer Singh Birring on behalf of City Of Austin. Attorney Sameer Singh Birring added to party City Of Austin(pty:coninvp) (Birring, Sameer) (Entered: 08/07/2019)
Text Order GRANTING 252 Motion to Withdraw as Attorney {Brantley Starr}. IT IS THEREFORE ORDERED that Brantley Starr is hereby withdrawn as counsel of record for Defendants in this matter entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 08/09/2019)
Text Order GRANTING 253 Motion to Withdraw as Attorney Jose F. Sanchez. It is therefore ORDERD that Jose Sanchez is withdrawn as counsel of record in this case entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 08/09/2019)
255 Unopposed MOTION to Withdraw as Attorney by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, Texas Department of Public Safety. (Attachments: # 1 Proposed Order)(Flammer, Sean) (Entered: 08/20/2019)
Text Order GRANTING 255 Unopposed Motion to Withdraw as Attorney. Accordingly, it is ORDERED that Sean Flammer is hereby withdrawn as counsel of record for Defendants in this matter entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 08/26/2019)
256 MOTION to Appear Pro Hac Vice by Nina Perales for Ramon A. Soto ( Filing fee $ 100 receipt number 0542−12535256) by on behalf of Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Perales, Nina) (Entered: 08/28/2019)
Text Order GRANTING 256 Motion to Appear Pro Hac Vice for Ramon A. Soto. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/03/2019)
257 Unopposed MOTION to Withdraw as Attorney Patricia L. Casey by The City of Houston. (Attachments: # 1 Proposed Order)(Casey, Patricia) (Entered: 09/12/2019)
258 MOTION for Extension of Time to Submit Scheduling Order ADVISORY TO THE COURT by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Ginn, Lesli) Modified on 9/13/2019 (rg). (Entered: 09/12/2019)
259 ADVISORY TO THE COURT by Jo Anne Bernal, Bexar County, Texas, City Of Austin, City Of El Paso, City of San Antonio, El Paso County, Move San Antonio, Rey A. Saldana, Texas Organizing Project Education Fund, Richard Wiles, Workers Defense Project. (Attachments: # 1 Exhibit proposed scheduling order)(Garza, Jose) (Entered: 09/12/2019)
260 Unopposed MOTION for Voluntary Dismissal with Prejudice Pursuant to Fed. R. Civ. P. 41(a)(2) and El Cenizo Plaintiffs, Travis County Plaintiffs, and the Cities of Dallas and Houston's Joint Advisory by City of Dallas, Texas, State of Texas, The City of Houston, Travis County, El Cenizo. (Attachments: # 1 Proposed Order)(Nelson, Anthony) (Entered: 09/12/2019)
Text Order GRANTING 258 Motion for Extension of Time to Submit Scheduling Order. IT IS THEREFORE ORDERED that Defendants shall submit their proposed

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 57 of 58

09/16/2019 09/16/2019 09/19/2019
09/19/2019 09/23/2019 09/26/2019 09/27/2019 09/27/2019 09/27/2019
12/03/2019
12/04/2019 12/04/2019 12/13/2019 12/13/2019 12/13/2019

scheduling order no later than September 26, 2019 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 09/13/2019)
261 ORDER GRANTING 257 Motion for Patricia L. Casey to Withdraw as Attorney for The City of Houston, Texas. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/16/2019)
262 ORDER GRANTING 260 Motion for voluntary dismissal with prejudice. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/16/2019)
263 NOTICE of Attorney Appearance by William Thomas Thompson on behalf of Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. Attorney William Thomas Thompson added to party Greg Abbott(pty:intvd), Attorney William Thomas Thompson added to party Steve McCraw(pty:condft), Attorney William Thomas Thompson added to party Ken Paxton(pty:dft), Attorney William Thomas Thompson added to party State Of Texas(pty:dft) (Thompson, William) (Entered: 09/19/2019)
264 Unopposed MOTION to Withdraw as Attorney Lesli G. Ginn by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Ginn, Lesli) (Entered: 09/19/2019)
265 MOTION to Withdraw as Attorney by City Of Austin. (Attachments: # 1 Proposed Order)(Birring, Sameer) (Entered: 09/23/2019)
266 ADVISORY TO THE COURT by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Thompson, William) (Entered: 09/26/2019)
267 ORDER GRANTING 264 Motion to Withdraw Attorney Lesli G. Ginn. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/27/2019)
268 ORDER GRANTING 265 Motion to Withdraw Attorneys Michael Siegel and Christopher Coppola. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/27/2019)
269 SCHEDULING ORDER: Bench Trial set for 12/7/2020 9:30 AM before Chief Judge Orlando L. Garcia, Pretrial Conference set for 11/25/2020 9:30 AM before Chief Judge Orlando L. Garcia, Amended Pleadings due by 12/4/2019, Discovery due by 6/19/2020, Joinder of Parties due by 12/4/2019, Dispositive Motions due by 8/10/2020. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 09/30/2019)
270 Unopposed MOTION for Extension of Time to File Motions to Amend Pleadings by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 12/03/2019)
271 NOTICE of Attorney Appearance by Ariane Vokes Arth on behalf of City Of Austin. Attorney Ariane Vokes Arth added to party City Of Austin(pty:coninvp) (Arth, Ariane) (Entered: 12/04/2019)
272 ORDER GRANTING 270 Motion for Extension of Time to File Amended Pleadings by 12/13/2019. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 12/05/2019)
273 AMENDED COMPLAINT against Greg Abbott, Greg Abbott, Ken Paxton, Ken Paxton, State of Texas, State Of Texas amending, filed by City Of Austin.(Birring, Sameer) (Entered: 12/13/2019)
274 AMENDED COMPLAINT against Greg Abbott, Ken Paxton, State Of Texas amending, filed by Texas Organizing Project Education Fund, Move San Antonio.(Marziani, Mimi) (Entered: 12/13/2019)
275 Opposed MOTION for Leave to File Motion for Leave to File Amended Complaint by City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project. (Attachments: # 1 Proposed Order, # 2 Exhibit Exhibit A)(Soto, Ramon) (Entered: 12/13/2019)

Case: 5:17-cv-404 As of: 01/18/2020 12:35 PM CST 58 of 58

12/17/2019 12/19/2019 12/27/2019
01/02/2020
01/13/2020 01/13/2020 01/16/2020 01/16/2020

276 Unopposed MOTION for Extension of Time to File Response/Reply as to 275 Opposed MOTION for Leave to File Motion for Leave to File Amended Complaint by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Thompson, William) (Entered: 12/17/2019)
Text Order GRANTING 276 Unopposed Motion for Extension of Time to File Response/Reply. IT IS THEREFORE ORDERED that Defendants deadline is extended from December 20, 2019, to December 27, 2019 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 12/19/2019)
277 Response in Opposition to Motion, filed by Greg Abbott, Steve McCraw, Ken Paxton, State Of Texas, re 275 Opposed MOTION for Leave to File Motion for Leave to File Amended Complaint filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff City Of El Paso, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc. (Thompson, William) (Entered: 12/27/2019)
278 REPLY to Response to Motion, filed by Bexar County, Texas, City Of El Paso, City of San Antonio, La Union Del Pueblo Entero, Inc., Rey A. Saldana, Texas Association of Chicanos in Higher Education, Workers Defense Project, re 275 Opposed MOTION for Leave to File Motion for Leave to File Amended Complaint filed by Consol Plaintiff Texas Association of Chicanos in Higher Education, Consol Plaintiff City Of El Paso, Consol Plaintiff Workers Defense Project, Consol Plaintiff Rey A. Saldana, Consol Plaintiff City of San Antonio, Consol Plaintiff La Union Del Pueblo Entero, Inc. (Soto, Ramon) (Entered: 01/02/2020)
279 MOTION to Dismiss by Greg Abbott, Ken Paxton, State Of Texas. (Attachments: # 1 Proposed Order)(Thompson, William) (Entered: 01/13/2020)
280 MOTION to Dismiss by Greg Abbott, Ken Paxton, State Of Texas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Thompson, William) (Entered: 01/13/2020)
281 ORDER GRANTING 275 Opposed in Part and Unopposed in Part Motion for Leave to File Amended Complaint. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 01/16/2020)
282 SECOND AMENDED COMPLAINT against Greg Abbott, Ken Paxton, State Of Texas, City of Rowlett, William M. Brodnax, Jason Welk, Brandon Rickman amending, filed by Workers Defense Project, William McManus, City of San Antonio, Ana Sandoval, Armando Simon, La Union Del Pueblo Entero, Inc., Maria Valladarez, City Of El Paso, Celestino Gallegos, Texas Association of Chicanos in Higher Education, Bexar County, Texas.(rg) (Entered: 01/16/2020)

 
 Case 5:17-cv-00404-OLG Document 31 Filed 06/08/17 Page 1 of 16

IN THE UNITED STASTES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

City of El Cenizo, Texas, Mayor Raul L. §

Reyes of City of El Cenizo, Maverick

§

County, Maverick County Sheriff

§

Tom Schmerber,

§

Maverick County Constable Pct. 3-1

§

Mario A. Hernandez, and Texas State

§

League of United

§

Latin American Citizens,

§

§

Plaintiffs,

§

§

vs.

§

§

State of Texas, Governor Greg

§

Abbott (In His Official Capacity), and

§

Texas Attorney General Ken Paxton

§

(In His Official Capacity),

§

§

Defendants.

§

Civil Case No. 5:17-cv-404
Second Amended Complaint for Declaratory and Injunctive Relief

INTRODUCTION 1. Texas has enacted an extraordinarily punitive immigration law.

Senate Bill 4 (“SB 4”), which Governor Abbott signed on May 7, 2017, demands

that local governments and their employees engage in a wide swath of immigration

enforcement practices. If they misstep, it threatens them with crippling fines,

removal from office, and jail time, all based on amorphous commands nowhere to

be found in the federal immigration scheme. The Constitution does not allow

Texas to enact such ill-defined and expansive threats.

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2. Law enforcement groups throughout the State strongly opposed the bill. Its goal is to sow fear, both in immigrant communities and in the local government officials who wish to prioritize local concerns. As numerous law enforcement officials in Texas explained, mandating that local law enforcement engage in immigration enforcement will harm public safety. SB 4 will tax scarce local resources and make victims and witnesses less likely to cooperate with criminal investigations.
3. Local law enforcement officials are also not trained to engage in federal immigration enforcement. By requiring that they do so anyway, regardless of training and of the judgment and understanding of local law enforcement, SB 4 will subject Texans—citizens and non-citizens alike—to racial and ethnic profiling and unlawful stops and detentions. Individuals perceived as “foreign” by local law enforcement will be constantly at risk of unlawfully prolonged stops due to burdensome and unwarranted inquiries into their immigration status. Texans will now be required to carry identification at all times in order to avoid being subjected to unconstitutional practices pursuant to SB 4.
4. The Plaintiffs therefore ask this Court to enjoin multiple parts of SB 4. For example, the statute’s command that local officials not “endorse” any limits on immigration enforcement is a clear viewpoint-based regulation of expression that must be struck down under the First Amendment. Its sweeping prohibition against
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any and all actions that might serve to limit the local resources that are devoted to immigration enforcement is void for vagueness. Its mandate to imprison people at the federal government’s request would impermissibly force local officers to act without any regard for the Fourth Amendment. And all of its enforcement provisions are preempted by federal law, because they duplicate, extend beyond, and inject state immigration determinations into Congress’s carefully reticulated enforcement scheme. None of these provisions should be allowed to take effect. And, more basically, the statutory commands to local government force them to relinquish the very principle that the state itself proclaims to so zealously protect: not becoming by compulsion an arm of the federal government.
5. The Plaintiffs are local governments and officials whose liberty and livelihood—along with their basic ability to serve their own constituents—are imperiled by SB 4. They include the City El Cenizo, El Cenizo Mayor Raul L. Reyes, Maverick County, Maverick County Sheriff Tom Schmerber, and Maverick County Constable Mario A. Hernandez. Plaintiff Texas State League of United Latin American Citizens (“LULAC”) is an organization that serves Latinos in San Antonio and throughout Texas, many of whom are threatened by SB 4’s dramatic expansion of the State’s role in immigration enforcement. The Plaintiffs seek declaratory and injunctive relief against the State of Texas, Texas Governor Greg Abbott, and Texas Attorney General Ken Paxton.
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BACKGROUND 6. The State of Texas through SB 4 seeks to coerce local authorities into either abandoning (where the local policies already exist) or foregoing establishment of (where local policies are under consideration or may be adopted in the future) policies that regulate when officers can engage in immigrationrelated activities. To accomplish this objective, on May 7, 2017, Governor Greg Abbott signed into law SB 4, entitled,
AN ACT relating to the enforcement by campus police departments and certain local governmental entities of state and federal laws governing immigration and to related duties and liability of certain persons in the criminal justice system; providing a civil penalty; creating a criminal offense.
7. Among other provisions, SB 4 requires local governmental entities and law enforcement officials to unquestioningly comply with federal immigration detainer requests for people in custody, without meaningful independent local determination or review. It includes penalties for those whom Texas deems to fall short, including a Class A misdemeanor charge for sheriffs, police chiefs, and constables. It provides for civil penalties of up to $25,500 per day and removal from office for elected or appointed officials.
8. Like many other cities and counties in Texas, the City of El Cenizo and Maverick County are communities of immigrants, who are here to live, work, and raise families. Plaintiffs’ communities have determined that they are safer
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when all people, including immigrants, feel safe interacting with municipal employees, and when their law enforcement officers can be trusted. Plaintiffs’ communities are healthier when all residents, including immigrants, access public health programs, unafraid to seek health care. The State’s attempt to force local representatives to enforce federal immigration law breeds distrust of local government and officials, and can also wrench apart family and community structures that support residents and thus conserve local resources. For these reasons, among others, Plaintiffs have, in some circumstances, directed their employees not to actively assist the Federal government in enforcing federal immigration law.
9. SB 4 is a severe invasion of Plaintiffs’ rights as local governments to serve their own constituents, and to refuse federal requests to help administer federal regulatory programs. It also intrudes on federal enforcement discretion, by threatening new state-law consequences for failing to comply with existing federal immigration laws.
10. The effective date of SB 4 is September 1, 2017. But the consequences it threatens are too severe for Plaintiffs to wait. SB 4 threatens incarceration, removal from office, and civil penalties of up to $25,500 per day for non-compliant officials and employees. Hundreds of thousands of local dollars that support vital services, and hard-won trust and cooperation between law
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enforcement and the communities they serve, are imminently a risk. Plaintiffs have no choice but to seek the intervention of this Court to ensure that their rights and residents are protected, and that the State of Texas complies with the United States Constitution and other federal law.
JURISDICTION AND VENUE 11. The Court has jurisdiction under 28 U.S.C. §§1331 and1346(a)(2). The Court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. Venue properly lies within the Western District of Texas, because Plaintiffs reside in this judicial district and a substantial part of the events or omissions giving rise to this action occurred or will occur in this District and this division of the District. 28 U.S.C. §§124(d)(4) and1391(c)(d).
PARTIES 12. Plaintiff City of El Cenizo is a municipal corporation organized under the laws of the State of Texas, and is located in Webb County, Texas. Raul L. Reyes is the duly elected Mayor of El Cenizo. 13. Plaintiffs Sheriff Tom Schmerber and Constable Mario A. Hernandez are duly elected public law enforcement officers of Maverick County, Texas. 14. Plaintiff LULAC is the Texas Chapter of the oldest and largest national Latino civil rights organization in the United States. The National LULAC is a non-profit organization with a presence in most of the fifty states and
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Puerto Rico. Plaintiff LULAC is incorporated in Texas, with corporate headquarters and principal office in San Antonio. Plaintiff LULAC has long been active in representing Latino and other minority interests in Texas. Plaintiff LULAC is a membership organization, with more than 1,000 of its members residing in San Antonio. SB 4 will harm both Plaintiff LULAC and its members in San Antonio and elsewhere in Texas, who fear increased racial profiling and discrimination by law enforcement as a result of SB 4 and some of whom no longer feel comfortable contacting police for assistance. LULAC has already had to shift organizational resources to hold workshops and financial resources to educate its members about the law.
15. Defendant State of Texas is responsible for the actions of its officials with regard to state-wide enforcement of its laws and regulations.
16. Defendant Greg Abbott is the duly elected Governor of the State of Texas. Governor Abbott is sued in his official capacity.
17. Defendant Ken Paxton is the duly elected Attorney General of the State of Texas responsible for the enforcement of SB 4. General Paxton is sued in his official capacity.
FACTUAL ALLEGATIONS
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18. The City of El Cenizo and Maverick County are located on the border with Mexico. Both localities have chosen to adopt policies that limit their entanglement with immigration enforcement.
19. Importantly, these local government policies do not protect criminals or prevent people from being prosecuted for illegal acts.
20. The federal government frequently sends detainer requests to local law enforcement agencies. These detainers advise the agency that “the Department [of Homeland Security] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien,” and they request that the agency “maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” 8 C.F.R. § 287.7(d).
21. A detainer request issued under this section is distinct from a criminal warrant, which Plaintiffs honor. A civil immigration detainer request is not issued by a judge. It is simply a request by ICE that a state or local law enforcement agency hold individuals after their release dates to provide ICE agents extra time to investigate the person’s deportability or to take custody.
22. Complying with such a detainer request requires committing scarce law enforcement personnel and resources to track and respond to requests, detain
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individuals in holding cells, and supervise and feed individuals during the prolonged detention.
23. On May 7, 2017, Governor Greg Abbott signed into law SB 4. The Governor announced in a Facebook live stream that the law was designed to end sanctuary policies and would require local law enforcement officers to enforce immigration federal laws or be subjected to both criminal and civil penalties.
24. Two sets of provisions in SB 4 are primarily at issue in this lawsuit. First, SB 4 mandates that local officials comply with every single “immigration detainer request,” defined as any “federal government request to a local entity to maintain temporary custody of an alien, including a United States Department of Homeland Security Form I-247 document or a similar or successor form.” Id. § 772.0073(2); Tex. Code Crim. P. art. 2.251(a). Local officers lack meaningful discretion to decline a detainer request, even where the arrest would violate the Fourth Amendment.
25. Second, SB 4 contains a number of “anti-sanctuary” provisions— prohibitions against policies that limit local involvement in immigration enforcement. These anti-sanctuary provisions apply to all “local entit[ies],” defined to include a local “governing body,” an “officer,” or an “employee,” SB 4 § 752.051(5). The law contains both a general and a specific list of anti-sanctuary provisions. Generally, a local entity may not “adopt, enforce, or endorse a
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policy”—including even “an informal, unwritten policy,” id. § 752.051(6)—and may not engage in any “pattern” or “practice” that “prohibits or materially limits the enforcement of immigration law.” Id. § 752.053(a)(1), (2). They also may not “intentionally” have a pattern or practice that violates the detainer mandate. Id. § 752.053(a)(3). Specifically, “in compliance with” the general anti-sanctuary provisions, a local entity may not restrict anyone from taking a list of specified immigration enforcement actions: “inquiring into the immigration status of a person under a lawful detention or arrest”; maintaining, requesting, or exchanging immigration status or place-of-birth information with a federal, state, or local entity; “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance”; or “permitting a federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration laws.” Id. § 752.053(b).
26. Municipalities, counties, and their officials and employees who violate these commands are subject to a range of heavy penalties. Anyone who violates the anti-sanctuary provisions can be fined $1,000 to $1,500 for the first violation and $25,000 to $25,500 per day for each subsequent violation. Id. § 752.056(a)(1)-(2). Elected or appointed officials can even be removed from office. Id. § 752.0565. And for failing to honor a single detainer, a sheriff, police chief, or
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constable can be convicted of a Class A misdemeanor, Tex. Penal Code § 39.07, which carries up to a one-year sentence, id. § 12.21.
27. SB 4 harms public safety by restricting Plaintiffs’ ability to act in what Plaintiffs have determined to be the best interest of their residents, a choice that is consistent with federal law.
28. As a result, SB 4 undermines Plaintiffs’ ability to provide critical services to all residents.
29. Plaintiffs are being forced to expend tax dollars educating their employees about SB 4 and reassuring residents in response to SB 4.
CAUSES OF ACTION COUNT ONE: FIRST AMENDMENT 30. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 31. SB 4 provides that local officers and employees may not “endorse” a policy that “materially limits the enforcement of immigration law.” 32. SB 4’s endorsement prohibition regulates expression based on its content—immigration enforcement. It also regulates expression based on its viewpoint, because it only prohibits expression in favor of limiting immigration enforcement. This provision is not narrowly tailored to serve a compelling state interest, and therefore violates the First Amendment.
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COUNT TWO: VAGUENESS 33. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 34. The Due Process Clause requires that a law give reasonable notice of what conduct it prohibits. 35. SB 4 fails to give local entities, officials, and employees fair notice of what conduct will subject them to thousands of dollars in fines and removal from office. Among other things, the statute prohibits policies, including “informal” and “unwritten” policies, that “materially limit” immigration enforcement, but it does not give any indication as to what it means to “limit” immigration enforcement, and which limitations might be “material.” 36. In addition to prohibiting informal and unwritten policies, SB 4 also prohibits any “pattern” or “practice” that “materially limits” immigration enforcement, including a practice by a single municipal “employee.” The statute does not define what kinds of practices might “materially limit the enforcement of immigration laws.” 37. Going even further, SB 4 forbids every local official and employee from “endors[ing]” such policies. The statute gives no hint as to what actions or expression might constitute endorsement.
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38. Local employees who violate these provisions are subject to daily penalties of up to $25,500. Local officials are additionally subject to removal from office. The Due Process Clause does not allow their property and livelihoods to be subject to such indeterminate, amorphous, and subjective standards.
COUNT THREE: FOURTH AMENDMENT 39. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 40. SB 4 requires state and local employees to honor immigration detainer request they receive from federal officials. The statute leaves them no meaningful discretion to decline a request to detain or arrest a person, even when the arrest or detention would violate the Fourth Amendment. 41. SB 4 makes it a Class A misdemeanor for a sheriff, police chief, or constable to choose not to honor a detainer request—even if that choice is motivated by constitutional concerns. 42. By forcing local officers to carry out unreasonable seizures, SB 4 violates the Fourth Amendment.
COUNT FOUR: PREEMPTION 43. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
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44. SB 4 is preempted by federal immigration law, which creates a comprehensive enforcement scheme that does not envision the type of state involvement that SB 4 imposes. SB 4 both duplicates and extends beyond equivalent provisions in federal immigration law, and it injects unilateral state enforcement decisions into the federal scheme.
45. By creating state regulation of immigration inconsistent with federal law, SB 4 violates the Supremacy Clause and must be enjoined.
COUNT FIVE: NINTH AND TENTH AMENDMENTS 46. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 47. SB 4 interferes with the right of local self-government secured by the Ninth and Tenth Amendments, which, respectively, guarantee that certain rights are “retained by the people” and “reserved . . . to the people.” The State lacks the authority to force local communities to infringe on their own liberty through their own law enforcement and elected representatives. SB 4 should therefore be enjoined.
COUNT SIX: EQUAL PROTECTION 48. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
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49. SB 4 was enacted with the intent to harm Texas residents based on their race, ethnicity, and national origin. In its operation, it will coerce officers to engage in racial profiling, by preventing local electorates and their representatives from decoupling community policing from immigration enforcement. It therefore violates the Fourteenth Amendment’s Equal Protection Clause.
PRAYER FOR RELIEF Wherefore, the Plaintiffs prays that the Court grant the following relief: A. Declare that SB 4 is unconstitutional and preempted in its entirety; B. Declare that the anti-sanctuary provisions and detainer mandate are unconstitutional and preempted. B. Grant a preliminary and permanent injunction barring Defendants from enforcing SB 4’s anti-sanctuary provisions and detainer mandate. D. Award Plaintiffs reasonable costs and attorney’s fees; E. Grant any further relief that the Court deems fit and proper.

DATED: June 8, 2017

Respectfully Submitted,
Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICES OF LUIS ROBERTO VERA, JR & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260
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Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net /s/ Luis Roberto Vera, Jr._____ Luis Roberto Vera, Jr. Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 Attorneys for the Plaintiffs
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 Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 1 of 34

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al.,
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY; JO ANNE BERNAL, COUNTY ATTORNEY OF EL PASO COUNTY, in their official capacity, the TEXAS ORGANIZING PROJECT EDUCATION FUND; and MOVE SAN ANTONIO,
CITY OF SAN ANTONIO, et al.,
Plaintiffs,
v.
THE STATE OF TEXAS; et al.,

§ Civil Action No.: 5:17-CV-00404-OLG

§

(Lead Case)

§

§

§ Civil Action No: 5:17-CV-00459-OLG

§

(Consolidated case)

§

§

§

§

§

§ § §

Civil Action No: 5:17-CV-00489-OLG (Consolidated case)

§

§

§

§

Defendants.

CONSOLIDATED PLAINTIFFS EL PASO COUNTY, ET AL.’S FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF I. PRELIMINARY STATEMENT
1. Senate Bill 4 (“SB 4”), also known as the “Show Me Your Papers Bill,” is an unprecedented, cruel, and vague law that is aimed at the heart of Texas. It violates the Constitution of the United States, the Texas Constitution, and federal law and should be immediately and permanently enjoined. 2. There are many legal flaws with SB 4. Racial animus fueled SB 4’s enactment, tainting the entire law with an impermissible legislative purpose. The law’s language is unconstitutionally vague, chills policy dissent in violation of the First Amendment and leaves those potentially subject to its mandates without meaningful notice of what acts are forbidden. SB 4 will make all
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Texans less safe by eroding the discretion of our local law enforcement and law enforcement on college campuses, interfering with the chain of command and the existing decision-making processes of local officials, and preventing the reporting of crimes. Finally, SB 4 invites racial profiling, permitting local officers to demand “papers” from virtually any person in Texas at any time. History and logic supports that all Texans will not be equally subject to this harassment: Texans of Hispanic heritage and immigrants and their families, particularly those from Mexico, Central American and other Spanish-speaking countries, will be targeted. 3. This historic and unconstitutional attack on the core values and identity of Texas is especially harmful to the County of El Paso — comprised of residents, employees, and visitors — and to the Texas Organizing Project Education Fund (TOPEF) and MOVE San Antonio (MOVE) and the populations they serve. 4. El Paso is unique among Texas counties: it is bilingual, bi-national, multicultural, and geographically distinct. For instance, El Paso has over 800,000 residents, is over 82% Hispanic and over 25% of its residents are foreign born. It is part of the largest border community in the United States, and one of the safest communities in the nation, leading the country in public safety. El Paso takes great pride in protecting all its residents and its values, and has been a leader in the fight against discrimination of all types for decades, with a special focus on protecting the civil rights of its immigrant communities. In its attack upon immigrants of all nationalities, against Mexican Americans, and against Hispanic communities, SB 4 stands in stark contrast to El Paso’s history and identity. 5. It is insulting to the people and leaders of El Paso that the Texas Legislature continues to erode the policy decision-making and sovereignty of local communities based on irrational, unfounded “fears” of immigrants. As it has done for hundreds of years, El Paso will protect its
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heritage, identity and adherence to constitutional values such as equality and justice — and will do so with everything that it has. It is for these reasons and more, that El Paso files this suit seeking declaratory and injunctive relief. 6. TOPEF is an education organization that promotes social, racial, and economic justice for all Texans by conducting strategic, year-round community organizing in San Antonio, Houston and Dallas. Incorporated in San Antonio, TOPEF serves thousands of Latino and immigrant families the city. Indeed, more than half of TOPEF’s employees and the people they serve identify as Latino; many are from immigrant, mixed-status families. TOPEF and its members are already injured by SB 4’s unconstitutional mandates, including widespread racial profiling, which has chilled their First Amendment rights and forced a diversion of organizational resources. 7. Operating exclusively within San Antonio, MOVE is a grassroots, non-partisan nonprofit organization that promotes political power in underrepresented youth communities through civic engagement, leadership development and progressive issue advocacy. Its mission is to give youth a voice. MOVE and its members are already injured by SB 4’s unconstitutional mandates, including racial profiling on college campuses, which has chilled their First Amendment rights and forced a diversion of organizational resources. 8. The County of El Paso, its Sheriff, Richard Wiles, its County Attorney, Jo Anne Bernal, TOPEF and MOVE on behalf of their employees and the people they serve (collectively, the “Plaintiffs”), seek declaratory and injunctive relief against the State of Texas, Texas Governor Greg Abbott, Texas Attorney General Ken Paxton, and Director Steve McCraw of the Texas Department of Public Safety for the following legal violations in connection with the enactment, administration, and prospective enforcement of SB 4: 1) SB 4 was adopted with an impermissible purpose which violates the Fourteenth Amendment’s guarantee of the equal protection of laws; 2)
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SB 4 is unconstitutionally vague and violates the Fourteenth Amendment’s Due Process Clause; 3) SB 4 violates the Fourth Amendment protection against unreasonable searches and seizures; 4) SB 4 violates the Supremacy Clause, Art. V § 2, of the United States Constitution, as federal immigration enforcement is wholly dedicated to the federal government and may not be usurped by the states; 5) SB 4 violates the First Amendment prohibition against governmentally-controlled speech or expression by disallowing the endorsement of a policy by public officials that prohibits or materially limits the enforcement of immigration laws; and finally, and 6) SB 4 violates the Texas Constitution. 9. In addition, El Paso County and Sheriff Wiles also seek a declaratory judgment that El Paso’s current policies regarding federal immigration enforcement comply with state and federal law and do not violate SB 4.
II. JURISDICTION AND VENUE 10. This action raises federal questions under the United States Constitution, particularly Article 1, and the First, Fourth, and Fourteenth Amendments. In addition, this court has jurisdiction over these constitutional claims pursuant to 42 U.S.C. § 1983. 11. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1346. This court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §2201-02. 12. This Court has supplemental jurisdiction over any state law claims pursuant to 28 U.S.C. § 1367, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”
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13. Venue lies in this district pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claim occurred in this district.
III. PARTIES 14. Plaintiff, El Paso County, Texas is, at all times relevant to this Complaint, a county located in Texas and is recognized as a legal subdivision of the State. Tex. Const. Art. 11 § 1. El Paso County has the constitutional and statutory authority to set policies and regulations, as well as administer programs for its residents in certain areas, including administering its county judicial system, and providing health and social services to many county residents regardless of their national origin. The County is composed of more than 800,000 residents, over 80% of whom are Hispanic. More than one in four residents of El Paso County are foreign born. Over 72% of El Paso County households speak a language other than English at home. The County is the seat of government for its public officials, who face the injury of removal from office for endorsing or adopting a policy in violation of SB 4. 15. El Paso County faces injury in fact from SB 4 in the form of substantial civil penalties for non-compliance with the law, as well as, tremendous budget uncertainty due to SB 4’s unclear and vague standards and imminent enforcement, including fines of $25,000 per day of violation excluding the first day of that violation. The County faces the threat of mandamus and injunction actions for violating SB 4. In addition, it creates unbudgeted costs associated with training its deputy sheriffs and administrative staff about complex federal immigration rules and laws. 16. Uniquely, El Paso is under a federal court settlement agreement agreeing to prohibit the discriminatory enforcement of civil immigration laws. El Paso also has adopted policies that may violate SB 4’s unconstitutional mandates. Specifically, the El Paso County Attorney’s office has adopted a policy that prohibits its investigators from making inquiries into the citizenship or
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residency status for the purpose of determining whether an individual has violated civil immigration law or for the purpose of enforcing those laws. 17. The threat of the State’s aggressive and imminent enforcement of SB 4 against El Paso county officials is real, as underscored by the State of Texas’ retaliatory suit against opponents of SB 4, including the Plaintiffs in this action. 18. For all of these reasons — the budgetary uncertainty created by SB 4, its imminent enforcement, and the Attorney General and Governor’s threats against the opponents of SB 4 — El Paso County is already injured by SB 4’s unconstitutional mandates. 19. Plaintiff, Richard Wiles, is the Sheriff of El Paso County. He is a judicial officer imbued with judicial discretion derived from the Texas Constitution. Sheriff Wiles is responsible for the enactment and enforcement of El Paso County’s law enforcement policies and practices, including those governing compliance with Texas law and federal immigration detainers. He faces removal from office for violating SB 4, including by by “endors[ing]” any policy that “materially limit[s]” the enforcement of immigration laws. Sheriff Wiles, as a law enforcement officer, also faces criminal sanction under SB 4 for failing to honor a civil detainer request. Finally, Sheriff Wiles’ authority and discretion to administer the law and to ensure the public safety of the residents of El Paso is greatly diminished by SB 4. Sheriff Wiles is already injured by SB 4’s unconstitutional mandates. 20. Jo Anne Bernal is the County Attorney for El Paso County. In November of 2009, Jo Anne Bernal became the first female County Attorney in El Paso County’s history. Before Commissioners Court appointed her, Ms. Bernal had been working with the County Attorney’s Office for 16 years, 14 years as First Assistant County Attorney. As County Attorney, Ms. Bernal manages an office with an annual budget of $7.5 million and supervises more than 100 employees.
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In addition to handling complex litigation, she oversees 39 attorneys who practice both civil and criminal law in areas that range from civil rights litigation to juvenile prosecution. 21. It is the duty of the County Attorney to enforce the laws of the State of Texas regardless of the immigration status of the victim. The County Attorney’s office is statutorily responsible for obtaining legal protections on behalf of all victims of family violence, elder and child abuse. As an elected official, she faces removal from office for violating SB 4. This violation may include the endorsement of a policy that limits the enforcement of immigration laws. Endorsement is undefined by the statue and may include expression for a policy in violation of SB 4. County Attorney Bernal testified against SB 4 during the committee hearings in both the Texas House and Senate. The threat of civil penalties and the need to train the County’s staff, attorneys, and investigators regarding SB 4’s requirements and federal immigration enforcement have created budgetary uncertainty for the County Attorney’s office. 22. Plaintiff, TOPEF, is an education organization that promotes social, racial and economic justice for all Texans by conducting strategic, year-round community organizing, focusing efforts within working class neighborhoods in San Antonio, Houston, and Dallas. TOPEF is incorporated in San Antonio and keeps its principal place of business there. 23. TOPEF and its members are already injured by SB 4’s unconstitutional mandates. TOPEF has been forced to divert funding and other resources to counteract the effects of SB 4. TOPEF is also losing membership because the families it serves, which are mostly Latino, are scared to participate in TOPEF organizing activities for fear of being targeted by local law enforcement. The fear of racial targeting, leading to a chilling of participation, will only amplify when SB 4 goes into effect, stifling TOPEF’s ability to accomplish its organizational goals.
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24. As they are personally threatened, TOPEF has associational standing to sue on its members behalf. Moreover, given TOPEF’s mission, the forced diversion of resources and the harms to its racially and ethnically diverse membership, TOPEF has organizational standing as well. 25. Plaintiff, MOVE, is a grassroots, nonpartisan organization that builds political power in underrepresented youth communities through civic engagement, leadership development, and progressive issue advocacy. MOVE operates exclusively within the San Antonio area, organizing students on the 13 largest college campuses in San Antonio and promoting participation in political and social causes. MOVE is incorporated in San Antonio and keeps its principal place of business there. 26. MOVE and its members are already injured by SB 4’s unconstitutional mandates. MOVE has been forced to divert funds and change its programming priorities to order to address the needs of Latino students at the colleges it serves. Specifically, MOVE is already planning “know your rights” trainings and activities to raise awareness about SB 4 on college campuses this summer and as the new school year approaches. The San Antonio students who participate and organize with MOVE fear racial profiling on their college campuses; some are afraid that local law enforcement and/or campus police will inquire about their personal immigration status or that of family members. Heightened fear will chill participation in campus activities and deeply impact MOVE’s ability to mobilize college students and fulfill its organizational mission. 27. As they are personally threatened, MOVE has associational standing to sue on its members behalf. Moreover, given MOVE’s mission, the forced diversion of resources and the harms to its racially and ethnically diverse membership, MOVE has organizational standing as well. 28. Defendant, the State of Texas, is a free and independent sovereign state of the United States.
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29. Defendant, Greg Abbott, is the Governor of the State of Texas and signed SB 4 into law on May 7, 2017. He is the Chief Executive officer of the State of Texas and is responsible for the appointment of officials who administer state law enforcement. Governor Abbott is sued in his official capacity. 30. Defendant Ken Paxton is the Attorney General of the State of Texas, which is an executive office that represents the State of Texas in all actions in which the State may be a party. He is the officer who shall seek mandamus or injunction if and when local entities violate SB 4. He is also the officer given the sole authority to seek a quo warranto or a removal action against a public official who has violated SB 4. Attorney General Paxton is sued in his official capacity. 31. Defendant Steve McCraw is the Director of the Texas Department of Public Safety (DPS). He is responsible for the policies and practices of the DPS officers and their enforcement of federal immigration laws. These officers, under SB 4, are given the authority during any lawful detention to inquire into the nationality of the detained party. Director McCraw is sued in his official capacity.
IV. FACTUAL BACKGROUND A. SB 4’s Unconstitutional Mandates 32. SB 4 was signed into law on May 7, 2017. It is the most restrictive and prohibitive antiimmigrant state law of the fifty states. 33. SB 4 prohibits local entities from adopting, enforcing, or endorsing a policy that prohibits or materially limits the enforcement of “immigration laws,” a term without meaningful definition, or, as demonstrated by pattern or practice, materially limiting or prohibiting enforcement of such laws.
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34. SB 4 prohibits law enforcement agencies, as demonstrated by pattern or practice, from refusing to comply with an immigration detainer request issued by the federal government. An immigration detainer, also known as an “ICE hold,” is a document by which the United States Immigration and Customs Enforcement (ICE) requests a local law enforcement agency to hold a person ICE suspects has violated civil immigration laws, so that ICE may gain custody, even if there are no underlying criminal charges to justify continued detention. 35. In addition, SB 4 provides that local entities may not prohibit or materially limit a police officer — including safety officers on college campuses — from inquiring into the immigration status of a person under lawful detention or under arrest; inquiring into the detainee’s place of birth; sending that information to the United States Citizenship and Immigration Services (USCIS), ICE, or any other federal agency; assisting or cooperating with a federal immigration officer; or allowing the federal government access to a jail to enforce federal immigration law. 36. Any “citizen” residing in the jurisdiction of a local entity may file a complaint with the attorney general alleging that a jurisdiction has violated SB 4. The Attorney General may then seek a writ of mandamus or injunction to compel the jurisdiction to comply with SB 4. 37. Jurisdictions that intentionally violate SB 4 face severe, escalating civil penalties, including fines of $25,000 per day of violation, excluding the first day of a violation. 38. Public officials who violate SB 4 face removal from office via quo warranto. A public statement made by a public official is evidence for removal. 39. Sheriffs, chiefs of police, constables, or anyone with primary authority for administering a jail is criminally liable for knowingly failing to comply with a detainer request. 40. In total, SB 4 attempts to force the hands of local government to enforce federal immigration laws as envisioned by the State of Texas. Law enforcement officials who do not
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comply will have committed crimes. Public officials who do not comply face removal. All law enforcement agencies and jurisdictions that opt to focus on community policing and stay out of immigration enforcement face stringent civil liability. 41. Texans, particularly Mexican-Americans, those of Hispanic descent, and immigrants and their families, are caught in the crossfire.
B. SB 4 and Victims of Domestic Violence and Sexual Assault 42. Recently, anti-immigration policies have already affected the enforcement of domestic abuse claims in El Paso County. In February 2017, federal immigration agents detained a family violence victim who was seeking a protective order in the El Paso County Courthouse. Within days of the incident becoming public, an undocumented mother of three U.S. citizen children who had sought a protective order to protect her from stalking asked to withdraw her protective order because of threats by her former partner to report her to U.S. Immigration and Customs Enforcement. An undocumented mother who requested protection for her 17-year-old daughter who was the victim of dating violence and stalking sought to withdraw the request for the protective order because of the viral effect of the publicity surrounding the courthouse incident. The undocumented parents of a 16-year-old male sexual assault victim sought to have their request for a protective order withdrawn because they feared interacting with law enforcement and the court system. 43. During floor consideration of SB 4, the Texas House rejected an amendment by State Representative Lina Ortega (D-El Paso) that would have precluded the enforcement of federal immigration laws by state officers in courthouses. In addition, the House rejected an amendment by State Representative Mary Gonzalez (D-El Paso) that would have precluded the enforcement of an immigration detainer request for a victim of family violence or sexual assault.
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44. SB 4 already has, and will continue to, drive a wedge of distrust and fear between immigrant victims and law enforcement and the court system. This result will benefit offenders, who will escape accountability for their actions, and will create a class of permanent victims, who will be forced to keep quiet and remain in the shadows. Ultimately, SB 4 will result in the revictimization of crime victims by pushing them away from the justice system.
C. Discriminatory Purpose 45. The procedural process leading to the enactment of SB 4 shows that it was passed with a discriminatory purpose, in violation of the Equal Protection Clause of the Fourteenth Amendment. See in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 (1977).
Background and Events Leading to Enactment 46. SB 4 cannot be separated from the cultural context in which it was passed. The 2016 election both in Texas and in the United States was riddled with nativist and anti-immigrant appeals. For instance, then-candidate Trump repeatedly claimed that illegal immigrants were “rapists,” “criminals” roaming the streets, killing people and stealing jobs from American workers. He also publicly attacked persons of Hispanic descent, including by questioning the impartiality of a United States federal judge presiding over a lawsuit related to Trump University. 47. Likewise, Texas lawmakers and members of the State’s leadership have made racial and xenophobic appeals in supporting laws like SB 4. In campaigns, Lieutenant Governor Dan Patrick called immigration into Texas an “invasion” and said that immigrants coming to Texas bring “third world diseases,” such as leprosy. Without factual data, Patrick blamed immigrants for “a rising crime rate, overcrowded schools, an overburdened health-care system, and runaway growth in the state budget,” and characterized illegal immigrants as “terrorists and drug runners.”
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48. Texas Legislatures have considered so-called “Sanctuary Cities” and “Show Me Your Papers” bills in several forms in past legislative cycles, but SB 4 is the most extreme antiimmigrant measure to be enacted into law in Texas.
Procedural and Substantive Departures from Normal Processes
49. SB 4 flew through the legislative process at an unusually fast pace, despite a chorus of public cries against it. 50. Senator Charles Perry filed SB 4 on November 15, 2016, as a pre-filed bill. 51. On February 2, 2017, the Senate State Affairs Committee held a daylong committee hearing in which hundreds of people testified in person. Despite the volume of testimony, only a few people testified in person in support of the bill. 52. On February 7, 2017, SB 4 was passed to engrossment and sent to the House. SB 4 was referred to the House Committee on State Affairs and was heard on March 15, 2017. Again, hundreds of people testified in person against the bill. Again, only a few testified in favor. 53. On April 12, 2017, the bill was voted out of the House State Affairs Committee as substituted and sent to the Calendars Committee on April 20, 2017 at 2:22 PM. Just 48 minutes later, the bill was placed on the Emergency Calendar, moving with extraordinary speed. 54. The House considered SB 4 on April 26, 2017. Chairman Charlie Geren was the House sponsor for SB 4. In all, the House considered 145 amendments, accompanied by emotional debate, in a session that extended until 4:30 AM on April 27, 2017. 55. The House debate contained many peculiar deviations from normal procedure. First, several points of order were overruled that under normal operating procedures would have been sustained. This included a point of order concerning the validity of a witness affirmation, which is the same category of point of order that was sustained against a previous “sanctuary cities” bill.
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Second, rather than cut off debate utilizing the House rules to move to the previous question, the House moved to have the vote for “Record Vote 456” used for all amendments that remained on the Speaker’s desk. This rule suspension has not been used or adopted by the Texas House for any legislation other than bills on the local and consent calendars. This effectively cut-off debate without meaningful consideration of any amendment numbered 76 to 145. 56. The tenor of the debate was also a major departure from the normal practices of the Texas House. The proponents of the bills used words like “illegals” to describe the problem the legislation was meant to address. Legislators were often heard laughing at the demise of ameliorative amendments, which led to one lawmaker commenting about the disrespectful behavior during the debate. Chairman Geren said that the bill was aimed at “bad people.” Throughout debate, opposition legislators were heckled by their colleagues. 57. Consideration of the so-called “Schaeffer Amendment,” an amendment proposed by Representative Matt Schaffer, was substantive departure from the normal procedures, becoming the turning point of the debate. The Schaeffer Amendment sought to re-draft the House version of the bill and revert to certain language of the Senate version, including language permitting law enforcement to make immigration inquiries during any “lawful detention,” rather than only after an arrest. A proposal was raised that, essentially, would have removed the Schaeffer Amendment from consideration in exchange for allowing multiple other amendments to be considered, in response to concerns that the public and other lawmakers had raised about the bill. After some time, however, it became clear that a true deal was never on the table, as Representative Schaeffer showed no serious inclination to remove his amendment from consideration. 58. Accordingly, in one night, SB 4 made Texas legislative history in the worst possible way. Meaningful points of order were denied outright and not considered despite the traditional practice
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of the House. The bill spent less than an hour in the Calendars Committee. It was subject to a tremendous volume of negative witness testimony in both the Texas Senate and Texas House committees, all of which failed to impede its swift progress through the legislature. The House cut off debate by using a practice reserved only for bills on the local and consent calendar. A “deal” was offered that would have allowed the Speaker to choose which amendments but without any serious intention of compromise. Only one amendment offered by a lawmaker of color was adopted. 59. SB 4 passed the Texas House on April 27, 2017 and was sent to the Senate. 60. The Senate concurred in House Amendments, and the Governor signed SB 4 into law on the evening of Sunday, May 7, 2017 in a private event not open to the media or the public. It is scheduled to become effective on September 1, 2017.
Legislative History 61. As noted above, the bill’s sponsor, Chairman Geren, announced from the House floor that SB 4 was meant to uphold the rule of law and get at “bad people.” He argued that SB 4 required local governments to enforce federal immigration law only to the extent it was requested by the federal government. He also said that the “Show Me Your Papers” component of the bill applied only to people who were actually arrested and nearby bystanders. Finally, Chairman Geren claimed the bill simply requires jurisdictions to honor valid ICE immigration detainer requests. 62. But Chairman Geren admitted on the House Floor that he did not consult any studies to justify or inform his decision to champion SB 4. He further stated there was no inciting event that led to his sponsorship or drafting of SB 4. And, each of the offered rationales is belied through a close examination of legislative history, particularly the repeated rejection of ameliorative amendments.
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63. First, SB 4 cannot be justified by any true concern about public safety. Amendments were rejected that targeted violent or dangerous offenders to be held pursuant to ICE detainer requests. Other amendments that would have provided training to local law enforcement concerning the complexities of federal immigration law were likewise rejected. Amendments seeking to improve communication between immigrant communities and law enforcement were also rejected. 64. There was voluminous testimony by law enforcement officials in both the Texas House and Senate committees that SB 4 will make Texas less safe, but it was not given serious credit. Finally, the bill author and all proponents of the bill were made aware that the incidence of crime among the undocumented community was lower than that among U.S. citizens and Legal Permanent Residents. 65. Similarly, SB 4 was not structured to target only “bad” people, presumably meaning individuals who have been convicted of a crime. Once the Schaeffer Amendment was adopted, the will of the House was to allow this bill to apply to anyone detained by law enforcement and not just to those who were arrested. Accordingly, SB 4 allows police officers and campus safety officers to make national origin inquires at traffic stops and other commonplace interactions with Texas residents — and seemingly prohibits jurisdictions from adopting policies preventing racial profiling. 66. This bill also cannot be justified by the need to mandate compliance with voluntary ICE detainer requests. A floor amendment was offered that would have limited SB 4 to the detainer issue only, but it was rejected. Moreover, there was credible testimony in committee that local jurisdictions in Texas comply with almost all ICE detainers already. Chairman Geren in fact stated that he could not name a sanctuary city, county, or university that did not intend to honor ICE
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detainers. This bill was thus not passed to simply force compliance with ICE detainers, as such compliance is already the standard across Texas. 67. A fervent belief in the “rule of law” also cannot justify SB 4, which allows the Attorney General (AG) to seek mandamus or injunction for entities that allegedly violate SB 4 and allows the AG to defend local entities from suits against those jurisdictions for complying with SB 4. In contrast, SB 4’s perfunctory language regarding non-discrimination provides no authorization for the AG to enforce that non-discrimination policy. 68. Accordingly, the policy rationales for this bill are pre-textual and belie a sub-rational, impermissible purpose based in racial or national origin animus.
Certainty of Disparate Impact 69. SB 4 invites racial profiling, permitting local officers to demand “papers” from virtually any person in Texas at any time. History and logic supports that all Texans will not be equally subject to this harassment: Texans of Hispanic heritage and immigrants and their families, particularly those from Mexico, Central American and other Spanish-speaking countries, will be targeted. 70. Indeed, on the House floor, Chairman Geren admitted that most immigrants in Texas are of Hispanic origin, essentially acknowledging that Latinos were more likely to be racially profiled under the law. 71. Chairman Green also admitted that ICE detainers are not always valid. It is widely known that, in Texas, invalid ICE detainers and unlawful detentions unequally affect Mexicans, Mexican Americans, and those of Hispanic descent more broadly. Accordingly, SB 4, as signed into law, allows unconstitutional intrusions into the rights of these individuals based on racial and national origin animus.
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72. Immigration enforcement has a sordid and discriminatory history in Texas, including in El Paso County. That is one of the reasons that El Paso has adopted policies to prevent racial profiling and other discriminatory measures — and remains so strongly committed to a multi-culturalism and inclusion. 73. The anti-immigrant fervor in recent years in Texas is, in many ways, unique. The Plaintiffs have each been particularly affected. 74. In El Paso, residents have suffered from illegal intrusions into their lives. One example is referred to locally as “the Bowie High School incident.” During the morning of November 9, 1991, Benjamin Murillo, Coach of the Bowie High School football team, and Isaac Villalva and Cesar Soto, members of the Bowie High School varsity football team, drove to neighboring high school to watch the junior varsity football game between Bowie High School and Jefferson High School. Two El Paso Border Patrol Agents stopped their vehicle. One of the El Paso Border Patrol Agents approached the car and pointed a pistol at the head of Coach Murillo. The agents searched the car without probable cause or consent. The students were questioned about their national origin and immigration status. These children and their coach were stopped solely because of their Hispanic descent. The subsequent lawsuit found that the agents violated the civil rights of the students and their coach. 75. This case and many others have typified the relationship between immigration enforcement and Mexican Americans in Texas, and in El Paso County specifically. This unequal enforcement is based on racial classification or national origin animus. 76. TOPEF’s mission is to improve the lives of low and moderate-income Texas families by building power through community organizing and civic engagement. TOPEF was founded in December 2009 by a group of seasoned community organizers, grassroots community leaders and
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an Advisory Committee that includes renowned policy experts, union presidents, and progressive civic leaders from around the state. TOPEF has over 140,000 supporters across the state, most of whom are African American and Latino and organize around issue areas such as: jobs and job training, criminal justice reform, neighborhoods of opportunity, access to health care, improving public schools, and immigrant rights. 77. TOPEF has successfully organized to effect local policy change and grow the electorate in three counties. Among other things, the work of TOPEF’s trained community leaders has won the allocation of $1 million toward street lights for San Antonio’s low-income, predominantly Latino west-side neighborhoods, won an alternative disciplinary program to tackle the “School to Prison Pipeline” problems in Dallas Independent School District, and secured a policy within DISD that district that bans discretionary suspensions for Pre-K through second grade students. TOPEF’s work has consistently targeted 200,000 low propensity voters and has empowered them to see the impact of voter participation and community organizing. 78. MOVE’s mission is to give underrepresented youth communities a voice in politics. As mentioned above, MOVE’s work focuses on civic engagement, leadership development, and progressive issue advocacy. It was founded in 2013 by a group of students at the University of Texas at San Antonio, and currently has members in the thirteen largest colleges in San Antonio. MOVE serves underrepresented Latino and immigrant communities in San Antonio and its surrounding areas. MOVE’s issue advocacy work involves and benefits citizens as well as noncitizens of the United States. 79. TOPEF and MOVE have also suffered racial classification or national origin animus while engaged in their organizing and education activities. If SB 4 goes into force, TOPEF and MOVE have a reasonable expectation that this animus against their employees, fellows, volunteers and the
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people they serve will increase significantly, as law enforcement leaders will be prevented from ordering their subordinates not to engage in unjustified immigration-status and place of birthrelated questioning.
D. Chilling Speech, Association and other First Amendment Rights 80. On its face, SB 4 prohibits officials from “endors[ing]” any policy that would prohibit or materially limit the enforcement of immigration laws. Although the term “endorse” is not defined in statute, its common definition includes convening public approval or support. 81. SB 4 creates significant penalties for local officials who run afoul of certain provisions, including the endorsement rule. Among other penalties, it allows for the removal of public officials via quo warranto for the endorsement of a policy in violation of SB 4. This is a clear viewpointbased attempt to censor local officials from discussing certain topics — it cannot stand under the First Amendment. 82. Moreover, SB 4 creates a chilling effect upon organizing, protesting and other protected forms of speech and petition that occur in the public square. Members from both TOPEF and MOVE are afraid to participate in the activities of those organizations, for fear of being targeted for looking “foreign” and being asked to produce proof of citizenship. 83. Moreover, in a remarkably retaliatory move, Texas sued Plaintiffs El Paso County, Sheriff Wiles and TOPEF in the advisory opinion action it filed in the Austin Division. Texas, et al. v. Travis County, et al., 5:17-CV-00425-SS (W.D. Tex.—Austin Division). 84. Texas does not allege any actions or omissions by TOPEF that may justify its lawsuit; Texas states plainly that it sued TOPEF because the organization challenged the constitutionality of SB 4.
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85. Texas’ addition of Plaintiffs is a retaliatory, malicious action that chills and violates Plaintiffs’ First Amendment rights, including their right to petition the government and access to the courts.
E. Impermissibly Vague 86. SB 4 never defines core aspects of its legislative scheme, leaving those subject to its mandates unsure about their meaning. The law does not, for instance, define “materially limiting” in relation to “immigration laws,” which is itself a term without meaningful definition. It does not define “pattern or practice” in relation to a material limitation or prohibition of federal immigration laws. It does not define “endorse,” “citizen,” “enforcement activities,” or “lawful immigration status.” 87. Each of these phrases and terms are material to the enforcement of SB 4. Jurisdictions misinterpreting these terms face dire civil penalties, including potential removal from office. There are other inconsistencies within the law as well. 88. The failure to define these important phrases is an unconstitutional delegation of authority to police officers and the courts and gives little notice or certainty to those affected concerning which behaviors are proscribed. 89. The terms used in the statute are so without definition that an average person could not understand what behaviors are prohibited or give rise to penalties under SB 4. 90. In its vagueness, SB 4 is so indefinite that it will allow for rampant arbitrary and discriminatory enforcement. SB 4 is also overly broad and proscribes behaviors that cannot be criminal or civilly penalized.
F. Enabling Illegal Searches and Seizures
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91. SB 4 will allow unlawful detentions and the use of national origin and race for unlawful searches and seizures, in violation of constitutional guarantees. 92. SB 4 allows law enforcement personnel, including college campus law enforcement officials, to make inquiries into the national origin of any individual detained for any period of time. Jurisdictions are specifically disallowed from prohibiting law enforcement personnel from inquiring into national origin at the point of detention, arrest, or custody. 93. SB 4 allows and creates the opportunity for pre-textual vehicle stops or other investigation, which will form the basis for racial profiling by law enforcement personnel in Texas.
G. Federal Preemption 94. Federal regulation of immigration is pervasive, occupying the entire field and preempting SB 4 in several ways. 95. SB 4 mandates that local entities must comply with all ICE detainer requests and disallows local entities from adopting policies or procedures that prohibit or materially limit the enforcement of “immigration laws.” Taken together, because of SB 4, no Texas local entity will be able to adopt, enact, execute, administer or endorse policy that is not exactly congruous with Texas’ perverse vision of compliance with federal immigration law. 96. Under SB 4, local law enforcement will become an instrument of the federal government and will have no discretion or ability to fail to comply with the dictates of the federal government as to federal immigration law. This is true no matter how full a jail will become. This is true no matter how much money is spent on litigation or detention involving ICE detainers. This will be true no matter any other exigent circumstance that might justify non-compliance with federal immigration laws in a specific instance. SB 4 turns local entities into arms of the federal government and usurps the prerogative of the federal government as to its immigration laws.
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97. Federal law controls what constitutes compliance with federal immigration law by local entities. SB 4 improperly seeks to re-define this compliance and usurps the role of the federal government. 98. Federal law defines ICE detainer requests as voluntary for local jurisdictions. SB 4 redefines these voluntary requests and intrudes into the sovereignty of the United States. 99. By conflicting, both expressly and impliedly, with federal immigration law, SB 4 violates the Supremacy Clause.
V. Causes of Action/Violations of Law A. SB 4 Violates the Fourteenth Amendment’s Equal Protection Clause and
was passed with an Invidious and Impermissible Purpose 100. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 101. The Fourteenth Amendment to the United States Constitution guarantees persons the equal protection of the laws, and prohibits the government from treating persons differently than similarly situated individuals. 102. SB 4’s requirement that local law enforcement comply with federal authorities in the enforcement of immigration laws does have a discriminatory purpose. 103. SB 4’s requirement that local law enforcement not prevent peace officers from verifying the immigration status of a person does have a discriminatory purpose. 104. Racial discrimination and national origin animus is a substantial or motivating factor behind SB 4. 105. The historical background, procedural deviations, and legislative history departing from normal procedures, as well as the certainty of the disparate impact of SB 4 on a protected class, all indicate discriminatory intent.
23

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 24 of 34
106. The justifications and policy rationales for SB 4 are pre-textual and obfuscate an impermissible discriminatory purpose. 107. Texas enacted SB 4 to set a policy of complying with federal immigration authorities, in order to discriminate against one particular race or group of people based predominantly on account of their race or national origin. 108. The enactment of SB 4 deviates from the normal procedural sequence of passing laws in Texas. 109. SB 4 does bear more heavily on persons from one race than another. 110. SB 4 does bear more heavily on persons of one national origin than another. 111. SB 4 violates the Fourteenth Amendment to the United States Constitution. 112. SB 4 was adopted with a discriminatory and impermissible purpose in violation of the Fourteenth Amendment of the United States Constitution.
B. SB 4 violates the First Amendment by Limiting Protected Speech and Retaliating Against Elected Officials and Private Citizens
(i) SB 4 unconstitutionally limits protected speech 113. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 114. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. Art. V, cl. 1. 115. The First Amendment, incorporated and made applicable to Texas by the Fourteenth Amendment to the United States Constitution, prohibits government-control of speech and expression.
24

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 25 of 34
116. The speech of elected officials cannot be limited to the same degree as that of public employees. 117. SB 4 impermissibly limits speech by elected officials based on the content of the speech. 118. SB 4’s regulation of speech to an elected official’s constituency is not narrowly tailored to address a compelling government interest. 119. SB 4 functions as a prior restraint on speech by placing a predetermined prohibition restraining specific expression containing views against SB4 or expressions containing support or endorsement of policies which the State deems to contradict SB 4. 120. SB 4 allows the removal of a duly elected or appointed governmental official from public office for a violation of SB 4. Proof of that violation includes a public statement of the public official’s conduct in violation of SB 4. 121. To the degree that SB 4 seeks to constrain public expression or policy advocacy for policies that materially limit or prohibit state enforcement of federal immigration laws, then it violates the First Amendment’s guarantee of freedom of expression.
(ii) Defendants have filed a retaliatory lawsuit against Plaintiffs 122. Additionally, Defendants have violated Plaintiffs El Paso County, Sheriff Wiles, and TOPEF’s First Amendment rights by retaliating against them through a malicious action in the Austin Division. 123. Plaintiffs’ filing of this lawsuit challenging SB 4 constitutes protected speech under the First Amendment. 124. Texas’s retaliatory suit against Plaintiffs in the Austin Division violates Plaintiffs’ protected speech. Texas has no legitimate, non-retaliatory reason for suing Plaintiffs in the Austin Division action.
25

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 26 of 34
125. The purpose of Texas’ action against Plaintiffs is to unlawfully deter TOPEF and others from exercising their own constitutionally protected speech, in the form of their lawsuit challenging SB 4. 126. Plaintiffs, including TOPEF, will be forced to divert additional resources to defend against Texas’ malicious, retaliatory action in the Austin Division. 127. Texas’s retaliatory suit against Plaintiffs in the Austin Division violates their right to petition the government. 128. Texas’s retaliatory suit against Plaintiffs in the Austin Division violates their right to access to the courts. 129. Plaintiff MOVE San Antonio reserves the right to allege this Cause of Action if it is also sued in the Austin litigation.
C. SB 4 Violates the Due Process Clause of the Fourteenth Amendment Because it is Too Vague to Give Notice That Penalties May be Imposed
130. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 131. The Fourteenth Amendment to the United States Constitution also guarantees no state shall “deprive any person of life, liberty, or property, without due process of law.” 132. The Due Process Clause of the Fourteenth Amendment requires that laws give reasonable notice of what conduct is subject to criminal penalties and to stringent, quasi-criminal civil penalties, like removal from office. 133. The Due Process Clause also requires that a law not be so indefinite so as to allow for arbitrary and discriminatory enforcement. 134. A statute is void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions or penalties.
26

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 27 of 34
135. SB 4 is impermissibly vague because it fails to define key terms and to give notice to the average person what behaviors give rise to penalties under the law. 136. Every law must state explicitly what it mandates, what is enforceable, and what conduct is proscribed. 137. SB 4 is also impermissibly vague because by failing to define key, material terms, it will lead to arbitrary and discriminatory applications and prosecutions. 138. Definitions must be given for potentially vague terms, especially critical terms. SB 4 violates the Due Process Clause of the Fourteenth Amendment.
D. SB 4 Violates the Fourth Amendment by Removing the Probable Cause Requirement and Mandating Unreasonable Seizures
139. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 140. The Fourth Amendment, incorporated and made applicable to Texas by the Fourteenth Amendment to the United States Constitution, prohibits unreasonable searches and seizures. 141. To establish a claim for unreasonable seizure, one must show that an arrest is unreasonable. 142. An arrest is any significant pretrial restraint of liberty. 143. A warrantless arrest is considered unreasonable if, at the moment of the arrest, there is no fair and reliable determination of probable cause for the peace officer to reasonably believe that an unlawful act has been or is being committed. 144. Probable cause does not require proof beyond a reasonable doubt, but only a showing of a fair probability of unlawful activity. 145. The reasonableness of an arrest must also be judged based on what a reasonable peace officer would do under the circumstances, and does not consider the officer’s state of mind.
27

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 28 of 34
146. Immigration detainers issued by ICE seek to detain subjects, and may be issued without a warrant. 147. Some ICE detainers are civil in nature. 148. SB 4 requires law enforcement officers to honor all ICE detainer requests, some of which may result in an unreasonable seizure, if officers do not have the discretion to reject invalid detainers. 149. ICE detainers can be new and subsequent seizures, independent of the initial finding of probable cause for violating state law. 150. Neither foreign national origin nor unlawful presence is an element for any state crime in Texas. 151. SB 4 violates the Fourth Amendment by forcing peace officers to enforce warrantless detainer requests and by removing officer discretion to find probable cause, therefore requiring unreasonable seizures.
E. SB 4 Violates the Supremacy Clause by Expressly and Impliedly Conflicting With Federal Laws and Should be Preempted
152. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 153. The Supremacy Clause of the United States Constitution provides that “[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
28

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 29 of 34
154. The Supremacy Clause provides that federal law may expressly or impliedly preempt Texas or local laws, and cause the state law to be without effect. State laws may be implicitly preempted when the federal scheme occupies the field or when federal and state laws conflict. 155. SB 4 is in disharmony with the United States Constitution and federal immigration laws and regulations. 156. SB 4 expressly conflicts with the United States Constitution, federal immigration law, or other federal law. 157. SB 4 impliedly conflicts with, or imposes an obstacle to, the United States Constitution, federal immigration law, or other federal laws. 158. Federal regulation of immigration, especially as to the definition of Sanctuary Cities, is so pervasive as to occupy the field of immigration enforcement and disallows Texas from passing SB 4. 159. SB 4 violates the Supremacy Clause and should therefore be preempted by federal law.
F. State Law Claim – SB 4 Violates the Separation of Powers by Encroaching on the Functions of Three Separate Governmental Bodies
160. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 161. Pursuant to Art. II, § 1 of the Texas Constitution, the sovereign power of our state government is divided into three distinct, but equal branches: the legislative; the executive; and the judicial. 162. Texas’s separation-of-powers provision may be violated in one of two ways: (1) when one branch of government assumes or is delegated a power more properly attached to another branch, or (2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.
29

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 30 of 34
163. Any attempt by one department of government to interfere with the powers of another is null and void. 164. Each elected county official has a delegated sphere of authority that cannot be invaded. However, this sphere of authority covers only those duties that the Texas Constitution and statutes specifically delegate to the officer. 165. The Texas Legislature holds the exclusive power to make law, including the sole authority to establish criminal offenses and designate applicable penalties, consistent with other federal and state law, as well as principles of federalism.
(i) SB 4 Encroaches on the Powers of the El Paso County Commission 166. The Texas Constitution provides that the Commissioners Court “shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed,” TEX. CONST. Art. V, § 18, thereby establishing the Commissioners Court as the county’s principal governing body. 167. The powers and duties of the Commissioners Courts include aspects of legislative, executive, administrative, and judicial functions. In the exercise of its powers and jurisdiction over county business, the Commissioners Court has implied authority to exercise broad discretion to accomplish the purposes intended. 168. In violation of the Texas Constitution, SB 4 unduly interferes with the El Paso County Commission’s ability to exercise its broad discretion in accomplishing its constitutionally assigned duties to provide county government services to all its residents.
(ii) SB 4 Encroaches on the Powers of the El Paso Sheriff 169. The Texas Constitution provides that the duties, qualifications, perquisites, and fees of the Sheriff shall be prescribed by the Legislature. TEX. CONST. Art. V, § 23.
30

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 31 of 34
170. The El Paso County Sheriff is a member of the executive branch with the power to make and enforce rules, regulations, and policy, as well as the authority to define county law enforcement objectives and choose the means of achieving them. 171. The El Paso County Sheriff is the county’s final policymaker in the area of law enforcement, not by virtue of the delegation by the county’s governing body but, rather, by virtue of the office to which the Sheriff has been elected. 172. In violation of the Texas Constitution, SB 4 unduly interferes with the El Paso County Sheriff’s constitutional duty as the county’s final policymaker in the area of law enforcement. SB 4 unconstitutionally removes from the Sheriff any and all discretion to make and enforce rules, regulations, and policy regarding his officers’ interactions with federal immigration officials, as well as his authority to define county law enforcement objectives and choose the means of achieving them consistent with federal immigration law.
(iii)SB 4 Encroaches on the Powers of the El Paso County Attorney 173. Along with various civil duties, the primary function of a County or District Attorney is to prosecute the pleas of the state in criminal cases, though these duties are not enumerated in Article V, § 21. 174. The offices of County and District Attorney are in the judicial branch of government. TEX. CONST. Art. V, § 21. 175. An obvious corollary to a District or County Attorney’s duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a District or County Attorney’s exclusive prosecutorial function, unless authorized by an express constitutional provision. I
31

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 32 of 34

176. In violation of the Texas Constitution, SB 4 unduly interferes with the El Paso County Attorney’s exclusive prosecutorial function. Moreover, SB 4 unduly interferes and conflicts with the El Paso County Attorney’s discretion regarding her duty to protect victims—including victims of domestic violence and child abuse
VI. DECLARATORY JUDGMENT 177. In the alternative, Plaintiffs El Paso County and Sheriff Wiles’ adherence to the County’s adopted policies in relation to federal immigration enforcement comply with SB 4. 178. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 179. Plaintiffs have no adequate remedy at law. 180. Absent declaratory relief, Plaintiffs will continue to be harmed.
VII. PRAYER FOR RELIEF 181. WHEREFORE, Plaintiffs pray that the Court grant the following relief:
1) Declare SB 4 unconstitutional and invalid on its face; 2) Enjoin Defendants from enforcing SB 4; 3) In the alternative, declare that El Paso and its County officials and their policies
comply with state law, including SB 4; 4) Award Plaintiffs court costs and reasonable attorneys fees and grant any other relief
to plaintiff as allowed by law and that the Court should deem fit.

DATED: June 19, 2017

Respectfully,

By: /s/ Jose Garza

GARZA GOLANDO MORAN Jose Garza Attorney-In-Charge
32

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 33 of 34
garzpalm@aol.com Texas Bar No. 07731950 Michael Moran michael@ggmtx.com State Bar No. 2409285 Martin Golando Martin.golando@gmail.com State Bar No. 24059153 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205 (210) 892-8543 Attorneys for Plaintiffs EL PASO COUNTY; and RICHARD WILES, SHERIFF OF EL PASO COUNTY
Mimi Marziani State Bar No. 24091906 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org
Efrén C. Olivares Texas Bar No. 24065844 Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org
Attorneys for Plaintiff TEXAS ORGANIZING PROJECT EDUCATION FUND and MOVE SAN ANTONIO
CERTIFICATE OF SERVICE
33

Case 5:17-cv-00404-OLG Document 51 Filed 06/19/17 Page 34 of 34 I certify that, on June 19, 2017, I filed the foregoing Plaintiffs’ First Amended Complaint for Declaratory Judgment and Injunctive Relief via the Court’s ECF/CM system, which will serve a copy on all counsel of record.
Efrén C. Olivares Efrén C. Olivares
34

 
 Case 5:17-cv-00404-OLG Document 55 Filed 06/19/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS; MAYOR )

RAUL L. REYES, CITY OF EL CENIZO; )

MAVERICK COUNTY; MAVERICK

)

COUNTY SHERIFF TOM SCHMERBER; )

MAVERICK COUNTY CONSTABLE

)

PRECINCT 3-1 MARIO A. HERNANDEZ; )

and LEAGUE OF UNITED LATIN

)

AMERICAN CITIZENS,

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT, in his official capacity;

)

and TEXAS ATTORNEY GENERAL

)

KEN PAXTON, in his official capacity

)

Defendants

)

)

_____________________________________ )

)

EL PASO COUNTY; RICHARD WILES, )

SHERIFF OF EL PASO COUNTY, in his )

official capacity; and the TEXAS

)

ORGANIZING PROJECT

)

EDUCATION FUND

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT; ATTORNEY GENERAL )

KEN PAXTON; and DIRECTOR STEVE )

MCCRAW, TEXAS DEPARTMENT OF

)

PUBLIC SAFETY – in their official

)

capacities

)

Defendants

)

)

1

Civil Action No. 5:17-CV-404-OG [Lead Case]
Civil Action No. 5:17-CV-459-OG [Consolidated Case]

Case 5:17-cv-00404-OLG Document 55 Filed 06/19/17 Page 2 of 4

CITY OF SAN ANTONIO, TEXAS;

)

REY A. SALDANA, in his official capacity )

as San Antonio City Councilmember;

)

TEXAS ASSOCIATION OF CHICANOS )

IN HIGHER EDUCATION; LA UNION

)

DEL PUEBLO ENTERO; and WORKERS )

DEFENSE PROJECT

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GREG ABBOTT, in )

his official capacity as Governor of the

)

State of Texas; KEN PAXTON, in his

)

official capacity as Attorney General of

)

Texas

)

Defendants

)

Civil Action No. 5:17-CV-489-OG [Consolidated Case]

APPLICATION FOR PRELIMINARY INJUNCTION BY CITY OF SAN ANTONIO, TEXAS, REY A. SALDANA, TEXAS ASSOCIATION OF
CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO, AND WORKERS DEFENSE PROJECT
The City of San Antonio, Texas, Rey A. Saldaña, Texas Association of Chicanos in Higher Education, La Union del Pueblo Entero, and Workers Defense Project (“Plaintiffs”) move for a preliminary injunction under Fed. R. Civ. Proc. 65(a) restraining the State of Texas, Greg Abbott, and Ken Paxton (“Defendants”) and their officials, employees and agents from implementing or enforcing Texas Senate Bill 4, 85th Legislature, Regular Session, 2017 (“SB 4”) in its entirety.
Plaintiffs assert: (1) there is a substantial likelihood that Plaintiffs will prevail on the merits; (2) there is a substantial threat that irreparable injury will result if the injunction is not granted; (3) the threatened injury to Plaintiffs outweighs the threatened harm to Defendants; and (4) granting the preliminary injunction will not disserve the public interest.
2

Case 5:17-cv-00404-OLG Document 55 Filed 06/19/17 Page 3 of 4

In support of this Motion, Plaintiffs rely on and incorporate herein their Complaint and

their Brief in Support of Application for Preliminary Injunction, which Plaintiffs traditionally

filed with the Court today.

Dated: June 19, 2017

Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By /s/ Nina Perales Thomas A. Saenz (CA Bar No. 159430 )* Nina Perales (TX Bar No. 24005046) Marisa Bono (TX Bar No. 24052874) Celina Moreno (TX Bar No. 24074754) Jack Salmon (TX Bar No. 24068914) Andrea Senteno (NY Bar No. 5285341)* Tanya G. Pellegrini (CA Bar No. 285186)* 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 *Pending Pro Hac Vice Admission Attorneys for Plaintiffs City of San Antonio, Rey A. Saldaña, Texas Association of Chicanos in Higher Education, La Union del Pueblo Entero, and Workers Defense Project

CITY OF SAN ANTONIO Deborah Lynne Klein Deputy City Attorney, Litigation SBN:11556750 Office of the City Attorney Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205 (210)207-8940/(210)207-4357

Attorney for Plaintiff CITY OF SAN ANTONIO and REY A. SALDANA

3

Case 5:17-cv-00404-OLG Document 55 Filed 06/19/17 Page 4 of 4
CERTIFICATE OF CONFERENCE On this 19th day of June, 2017, the undersigned counsel for Plaintiffs communicated with counsel for Defendants and counsel for plaintiffs in all of the consolidated cases by electronic mail regarding the Defendants’ and the other plaintiffs’ positions on this Application. This Application is opposed by Defendants and not opposed by other plaintiffs in the consolidated cases.
/s/ Nina Perales Nina Perales CERTIFITICE OF SERVICE I hereby certify that on this 19th day of June, 2017, I served a copy of the foregoing document on all counsel registered to receive NEFs through this Court’s CM/ECF system. All attorneys who are not registered to receive NEFs have been served via email. /s/ Jack Salmon Jack Salmon
4

Case 5:17-cv-00404-OLG Document 55-1 Filed 06/19/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS; MAYOR )

RAUL L. REYES, CITY OF EL CENIZO; )

MAVERICK COUNTY; MAVERICK

)

COUNTY SHERIFF TOM SCHMERBER; )

MAVERICK COUNTY CONSTABLE

)

PRECINCT 3-1 MARIO A. HERNANDEZ; )

and LEAGUE OF UNITED LATIN

)

AMERICAN CITIZENS,

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT, in his official capacity;

)

and TEXAS ATTORNEY GENERAL

)

KEN PAXTON, in his official capacity

)

Defendants

)

_____________________________________ )

)

EL PASO COUNTY; RICHARD WILES, )

SHERIFF OF EL PASO COUNTY, in his )

official capacity; and the TEXAS

)

ORGANIZING PROJECT

)

EDUCATION FUND

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT; ATTORNEY GENERAL )

KEN PAXTON; and DIRECTOR STEVE )

MCCRAW, TEXAS DEPARTMENT OF

)

PUBLIC SAFETY – in their official

)

capacities

)

Defendants

)

)

)

1

Civil Action No. 5:17-CV-404-OG [Lead Case]
Civil Action No. 5:17-CV-459-OG [Consolidated Case]

Case 5:17-cv-00404-OLG Document 55-1 Filed 06/19/17 Page 2 of 3

)

CITY OF SAN ANTONIO, TEXAS;

)

REY A. SALDANA, in his official capacity )

as San Antonio City Councilmember;

)

TEXAS ASSOCIATION OF CHICANOS )

IN HIGHER EDUCATION; LA UNION

)

DEL PUEBLO ENTERO; and WORKERS )

DEFENSE PROJECT

)

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GREG ABBOTT, in )

his official capacity as Governor of the

)

State of Texas; KEN PAXTON, in his

)

official capacity as Attorney General of

)

Texas

)

)

Defendants

)

Civil Action No. 5:17-CV-489-OG [Consolidated Case]

ORDER Pending before the Court is Application for Preliminary Injunction by City of San Antonio, Texas, Rey A. Saldaña, Texas Association of Chicanos in Higher Education, La Union del Pueblo Entero, and Workers Defense Project, which is supported by, among other things, the Brief in Support of Application for Preliminary Injunction and incorporated exhibits. The Court considered all documents on file in this matter, the arguments of the parties, and applicable law. The Court, having considered the Application, finds that it should be GRANTED. IT IS THEREFORE ORDERED: Defendants, and their officials, employees and agents, shall not, either directly or indirectly, take action to enforce Texas Senate Bill 4, 85th Legislature, Regular Session, 2017.
2

Case 5:17-cv-00404-OLG Document 55-1 Filed 06/19/17 Page 3 of 3 It is so ORDERED SIGNED this ____ day of ____________________, 2017.
_________________________________ HON. ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE
3

 
 Case 5:17-cv-00404-OLG Document 56 Filed 06/19/17 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al.,
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY; JO ANNE BERNAL, COUNTY ATTORNEY OF EL PASO COUNTY, in their official capacity, the TEXAS ORGANIZING PROJECT EDUCATION FUND; and MOVE SAN ANTONIO,
CITY OF SAN ANTONIO, et al.,
Plaintiffs,
v.
THE STATE OF TEXAS; et al.,
Defendants.

§ Civil Action No.: 5:17-CV-00404-OLG

§

(Lead Case)

§

§

§

§ Civil Action No: 5:17-CV-00459-OLG

§

(Consolidated case)

§

§

§

§ Civil Action No: 5:17-CV-00489-OLG

§

(Consolidated case)

§

§

§

§

§

§

§

§

CONSOLIDATED PLAINTIFFS EL PASO COUNTY, ET AL.’S EMERGENCY APPLICATION FOR A PRELIMINARY INJUNCTION
Plaintiffs El Paso County, Richard Wiles, Sheriff of El Paso County, in his official capacity, Jo Anne Bernal, County Attorney of El Paso County, in her official capacity, the Texas Organizing Project Education Fund, and MOVE San Antonio (“Plaintiffs”) file this Emergency Application for a Preliminary Injunction pursuant to Fed. R. Civ. P. 65(a) and the Court’s Order of June 16, 2017 Dkt. No. 45, and respectfully request this Court to issue an order preliminary enjoining SB 4 in its entirety. In support of their Application, Plaintiffs contemporaneously file the following documents:
1. Memorandum of Law in Support of Plaintiffs’ Emergency Application for a Preliminary Injunction;

Case 5:17-cv-00404-OLG Document 56 Filed 06/19/17 Page 2 of 3

2. Affidavits and other evidence in Support of Plaintiffs’ Emergency Application and for a Preliminary Injunction.
3. Proposed Order granting Plaintiffs’ Application for a Preliminary Injunction. Based on the supporting facts, legal authorities and arguments contained in said
documents, Plaintiffs respectfully pray that this Court grant their Emergency Application for a Preliminary Injunction.

DATED: June 19, 2017

Respectfully submitted,
By: /s/ Efrén C. Olivares
Efrén C. Olivares Texas Bar No. 24065844 Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org
Mimi Marziani State Bar No. 24091906 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org
Attorneys for Plaintiffs TEXAS ORGANIZING PROJECT EDUCATION FUND and MOVE SAN ANTONIO
GARZA GOLANDO MORAN Jose Garza Attorney-In-Charge garzpalm@aol.com
2

Case 5:17-cv-00404-OLG Document 56 Filed 06/19/17 Page 3 of 3
Texas Bar No. 07731950 Michael Moran michael@ggmtx.com State Bar No. 2409285 Martin Golando Martin.golando@gmail.com State Bar No. 24059153 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205 (210) 892-8543 Attorneys for Plaintiffs EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY; and JO ANNE BERNAL, COUNTY ATTORNEY FOR THE COUNTY OF EL PASO.
CERTIFICATE OF CONFERENCE
Plaintiffs conferred with Defendants regarding this Emergency Application for a Preliminary Injunction via e-mail on June 19, 2017. Defendants stated that they oppose the relief sought.
/s/ Efrén C. Olivares Efrén C. Olivares
CERTIFICATE OF SERVICE I certify that, on June 19, 2017, I filed the foregoing Emergency Application for a Preliminary Injunction via the Court’s ECF/CM system, which will serve a copy on all counsel of record.
/s/ Efrén C. Olivares Efrén C. Olivares
3

 
 Case 5:17-cv-00404-OLG Document 57 Filed 06/19/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

CITY OF AUSTIN’S OPPOSED MOTION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE JUDGE ORLANDO L. GARCIA:

The City of Austin (“Austin”) files this motion for preliminary injunction, and provides the

following evidence and argument in support. In addition, Austin joins the application for

preliminary injunction filed by plaintiffs City of El Cenizo, et al. (Docs. 24 through 24-8).

INTRODUCTION

1. Senate Bill No. 4 threatens the fundamental liberties of Texans and their local

governments. By seeking to turn police into immigration agents, the law destabilizes the work of

cities and counties to provide for the public health, public safety, and general welfare of their

constituents. By telling the people of the world that Texas law enforcement officers may

investigate and detain them for purposes of federal immigration enforcement, the State has

threatened irreparable harm to local, state, and even national economy. Because SB 4 contradicts

established law and will likely impose tremendous negative impacts on the local community,

Austin seeks immediate injunctive relief to preserve the status quo before a trial on the merits can

be conducted.

Case 5:17-cv-00404-OLG Document 57 Filed 06/19/17 Page 2 of 21

2. Like El Cenizo, Maverick County, and Texas LULAC, Austin argues that SB 4

violates the Constitution’s Supremacy Clause, the First Amendment, the right to Equal Protection,

and the right to Due Process. Austin joins with the El Cenizo motion in regard to these arguments,

and incorporates those arguments as summarized in Doc. 24-1. Austin writes separately to make

additional legal arguments under state and federal law, and to emphasize that the balance of harms

favors immediate injunctive relief to prevent SB 4 from taking effect.

ADDITIONAL EVIDENCE

Austin attaches and hereby incorporates the following exhibits in support of its motion for

a preliminary injunction:

Exhibit 1: Ex. 1-A: Ex. 1-B: Ex. 1-C: Ex. 1-D: Ex. 1-E: Ex. 1-F: Ex. 1-G: Exhibit 2: Ex. 2-A: Ex. 2-B: Exhibit 3: Exhibit 4: Exhibit 5: Exhibit 6: Exhibit 7: Exhibit 8: Exhibit 9: Exhibit 10: Exhibit 11: Exhibit 12: Exhibit 13:

Declaration of Gregorio Casar Declaration of Giovanni Mondragon Declaration of Jassary Rico Herrera Declaration of Jordy Balderas Declaration of Regina Rogoff Declaration of Kelly White Declaration of Susanna Vivanco Declaration of Shoshana Krieger Declaration of Delia Garza Declaration of Larkin Tackett Declaration of Cristopher Rubio Declaration of Steve Adler Declaration of Brian Manley Declaration of Sabino Renteria Declaration of Jacqueline Watson Declaration of Roland Swenson Declaration of Ben Johnson Public Statements by Governor Greg Abbott 2016 ICE Enforcement and Removal Operations Report Attorney General Memo Re: Sanctuary Jurisdictions Transcript: Judge Austin Describing Retaliatory Raids ICE “Fact Sheet” (Feb. 13, 2017)

Austin relies upon and hereby incorporates the following exhibits filed in support of the El

Cenizo Plaintiffs’ application for a preliminary injunction:

Doc. 24-2:

Declaration of Roxana C. Bacon

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Doc. 35-2:

Declaration of Sheriff Sally Hernandez

Finally, Austin hereby seeks judicial notice of the 2014 Pew Research Center Report,

“Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009,” pursuant to the

Federal Rules of Evidence, Rule 201, and as described separately in a concurrently filed motion.

ADDITIONAL FACTS

I. The Legacy of Anti-Hispanic Discrimination in Texas

3. The State Legislature has utilized its power over electoral districts to subjugate and

repress Hispanic and African-American Texans, to the benefit of white voters. As one Court found,

Texas has a “history of failures to comply” with the Voting Rights Act; “in the last four decades,

Texas has found itself in court every redistricting cycle, and each time it has lost.” See Texas v.

U.S., 887 F.Supp.2d 133, 161 (D.D.C. 2012).

4. Texas has repeatedly drawn electoral maps to disadvantage Hispanic and African-

American voters. For example, after the 2010 Census showed that Texas had grown by

approximately 4.3 million people over a decade, and that approximately 89% of that growth was

due to a growing population of Hispanic, African-American, and Asian-American residents, the

Texas Legislature re-drew the electoral maps for State House, State Senate, and Congressional

districts. Texas v. U.S., 887 F.Supp.2d at 156 (noting that Hispanic Texans constituted 65% of the

population growth). Instead of drawing the maps to reflect the increased share of Hispanic,

African-American and Asian-American constituencies, however, the Texas Legislature drew a

map that actually decreased the voting power of African-American and Hispanic Texans. Id. at

158.

5. The discriminatory impact of Texas’s redistricting plans was not an unintended

consequence of a legitimate attempt to re-draw the maps, but the result of discriminatory intent.

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For example, the Legislature systematically withdrew major economic institutions—such as stadiums, transportation centers, and universities—from the districts of Black and Hispanic congressional representatives, while maintaining similar institutions in the districts of white representatives. Id., 887 F.Supp.2d at 160. Although at trial the State argued that this disparate impact was a “coincidence,” the District Court found the argument entirely unconvincing, ruling that the redistricting was performed with a discriminatory intent. Id. at 161 (“we are … persuaded by the totality of the evidence that the plan was enacted with discriminatory intent”).
6. In addition to racially discriminatory gerrymandering, the State has effectuated discriminatory voter identification laws with the specific intent of disempowering Hispanic and African-American Texans. See Veasey v. Abbott, ___ F.Supp.3d ___, 2017 WL 1315593 at *5 (S.D.Tex. Apr. 10, 2017) (“Veasey III”). Specifically, the Southern District of Texas found that a 2013 Texas voter identification law imposed specific burdens on Texans living in poverty and disproportionately impacted African-American and Hispanic residents. See Veasey v. Abbott, 830 F.3d 216, 264-65 (5th Cir. 2016) (“Veasey II”) (upholding findings of fact). As the Fifth Circuit later summarized, the restrictions imposed by the voter identification rules are especially pernicious in the context of “Texas’s legacy of state-sponsored discrimination.” Id. at 265. The Fifth Circuit summarized this legacy, from the 1970s to the present:
As late as 1975, Texas attempted to suppress minority voting through purging the voter rolls, after its former poll tax and re-registration requirements were ruled unconstitutional. It is notable as well that in every redistricting cycle since 1970, Texas has been found to have violated the Voting Rights Act with racially gerrymandered districts. Furthermore, record evidence establishes that the Department of Justice objected to at least one of Texas’s statewide redistricting plans for each period between 1980 and the present, while Texas was covered by Section 5 of the Voting Rights Act. Texas is the only state with this consistent record of objections to such statewide plans. Finally, the same Legislature that passed SB 14 also passed two laws found to be passed with discriminatory purpose. Veasey II, 830 F.3d at 239-340 (citations omitted).
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7. Similar to the holdings of discrimination in redistricting and voter identification, federal courts have also noted that anti-sanctuary city legislation is “racially charged.” See Veasey v. Perry, 71 F.Supp.3d 627, 702 (S.D.Tex. 2014) (“Veasey I”). In 2011, in response to the 2010 census and substantial population gains by Hispanic Texans, the Texas Legislature introduced a number of anti-Hispanic laws, including an unsuccessful effort to abolish sanctuary cities. Id.
II. SB 4 Targets Hispanic Foreign Nationals Who Cross the Texas Border 8. On January 31, 2017, Governor Greg Abbott made the passage of an anti-sanctuary city law one of his priorities for the 2017 legislative session. See Ex. 9-A at 4-5 (State of the State address). In his prepared remarks, the governor complained that the federal government was not preventing undocumented immigrants from crossing the Texas border and claimed that some law enforcement officials “are openly refusing to enforce existing law.” Id. at 4. He announced that “this is the session we will ban sanctuary cities.” Id. at 5. 9. In the first week of February 2017, Governor Abbott participated in a radio interview with nationally-syndicated host Mark Levin. See Ex. 9-C. Abbott specifically identified Austin and Travis County as the source of “offensive” “sanctuary city policies.” Id. Abbott also reiterated his concern about immigrants who physically walk across the Texas border. Id. 10. On May 7, 2017, after signing SB 4 into law, Governor Abbott issued a press release stating that he had “banned sanctuary cities.” Ex. 9-D. The following day, Governor Abbott appeared on Fox & Friends and reiterated that the targets of SB 4 are “people … coming into the United States, especially across the border in Texas.” Ex. 9-E. 11. The people who walk across the Texas border with Mexico are overwhelmingly of Hispanic descent. The Department of Homeland Security reports that in 2016, over 96% of persons apprehended while crossing the southern border of the United States were from Hispanic nations,
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including foreign nationals from Mexico, Guatemala, Honduras, El Salvador, the Dominican Republic, Columbia, Ecuador, and Nicaragua. See Ex. 10 at 12. In general, Mexicans make up approximately one-half of the undocumented immigrants in the United States, and Hispanic immigrants from Central and South America and the Caribbean make up another 25% of the undocumented immigrant population. See Motion for Judicial Notice, Ex. A (Pew Research Center Report at 14).
III. Texas and ICE Collaborated to Punish Austin and Travis County 12. On January 20, 2017, newly elected Travis County Sheriff Sally Hernandez issued a written policy describing when the Travis County Sheriff’s Office would honor an Immigration and Customs Enforcement (ICE) civil detainer request. See Doc. 35-2 ¶¶ 8-9; see also Doc. 33-2 (“Travis County Sheriff’s Office Policy on Cooperation with U.S. Immigration and Customs Enforcement”). Instead of a blanket policy of fulfilling or denying such requests, Sheriff Hernandez announced that she would fulfill requests if supported by a judicial warrant or court order; if an individual was convicted of certain felonies; or if justice would be served by continued detention. Doc. 35-2 ¶ 8; see also Doc. 33-2 ¶¶ 2, 5. 13. Immediately thereafter, Governor Greg Abbott announced that he would withhold grant funding for Travis County in retaliation for Sheriff Hernandez's public statements. Ultimately, Texas denied Travis County $1.5 million in previously awarded funds that would have supported programs for victims of domestic violence, veterans, and other at-risk communities. Doc. 35-2 ¶ 10. 14. On February 2, 2017, Governor Abbott announced that “Texas will hammer Travis County” because of perceived “sanctuary” policies. Ex. 9-C. He made similar “hammer” threats on a radio broadcast. Ex. 9-B (also stating, “This is offensive what is going on in Austin”).
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15. On or about February 6, 2017, ICE began a series of raids in Central Texas that sent waves of terror through immigrant communities in Austin and beyond. See Ex. 13 (Feb. 13, 2017 ICE “Fact Sheet”); see also Ex. 1-A ¶¶ 5-9; Ex. 1-B ¶¶ 4-8; Ex. 1-C ¶¶ 5-11; Ex. 1-D ¶¶ 45; Ex. 1-E ¶¶ 4-5, 19-50; Ex. 1-F ¶ 6; Ex. 1-G ¶ 7.
16. Over one month later, ICE officials admitted in open court in front of United States Magistrate Judge Andrew W. Austin of the Western District of Texas, that the February ICE raids were conducted, in part, to retaliate against Sheriff Hernandez and her new policy of not automatically complying with an ICE detainer request. Ex. 12 at 26:9-26:21.
IV. The February ICE Raids Inflicted Grievous Injuries on Texas Residents 17. The February ICE raids impacted every aspect of life for undocumented immigrants and their family members. Many members of the Austin community felt they needed to minimize their public exposure. As a result, sick children missed essential health appointments. Ex. 1-C ¶ 9. Students were withdrawn from school. Ex. 2-A ¶ 5; Ex. 2-B ¶¶ 2-3. Tenants declined to complain about uninhabitable conditions. Ex. 1-G ¶ 7. Parishioners stopped attending church. Ex. 5 ¶¶ 4-6. Victims of domestic violence and sexual abuse declined to seek protection. Ex. 1-E ¶¶ 24, 29, 37, 38, 39 ,40. 18. As three young people who are part of mixed-status families bravely testify, the enhanced immigration enforcement operations in Austin neighborhoods inflicted a heavy toll on the psyche and well-being of a large portion of the community. Giovanni Mondragon is a teen mentor who saw participation in after-school teen programs drop from thirty students to two. Ex. 1-A ¶ 6. Jassary Rico Herrera is bound for Stanford University in the fall but could not enjoy the second semester of her senior year due to the impact of the raids on her family. Ex. 1-B ¶¶ 2-3, 7. Her family even made the terrible choice to give up their dogs due to fear that untimely barking
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could lead to contact with ICE. Id. ¶ 6. Jordy Balderas is a U.S. citizen but found himself anything but free, unable to go to the grocery store or focus academically so long as immigration enforcement actions threatened to break up his family. Ex. 1-C ¶¶ 3-8.
19. At local high schools serving predominantly Hispanic students, school leaders report that the February ICE raids and public discussion of SB 4 led to deep anxiety and fear. Ex. 2-A ¶ 5; Ex. 2-B ¶¶ 2-3. One student called her principal to report that she would not be able to attend school because ICE was outside her home, and had already captured her father. Ex. 2-B ¶ 2. Other families chose to attend schools closer to home, even though they have less successful academic programs, in order to avoid the risk of encountering immigration authorities en route to and from school. Ex. 2-A ¶ 5; Ex. 2-B ¶ 3.
V. SB 4 Will Inflict Terrible Social and Economic Impacts on Texas1 20. If SB 4 takes effect, Texas and Austin residents will suffer substantial negative social impacts, including injuries akin to those suffered as a result of the February ICE raids as well as involuntary, fundamental changes to the manner in which Austin provides for public health and safety. See Ex. 1 ¶¶ 20, 23; Ex. 1-C ¶¶ 11, 14; Ex. 1-D ¶¶ 6-8; Ex. 1-F ¶¶ 5, 7-8; Ex. 2-A ¶¶ 6-7; Ex. 2-B ¶ 6; Ex. 3 ¶¶ 5-9, 12; Ex. 4 ¶¶ 13-14, 19-28; Ex. 5 ¶¶ 4-6. 21. Texas will also suffer severe economic consequences. Already, a major national organization has withdrawn its 2018 convention from Grapevine, Texas, due to the pending enforcement of SB 4. See Ex. 8. The American Immigration Lawyers Association conference would have brought over 3,000 individuals to Texas, with an anticipated economic impact between three million and five million dollars. Id., ¶ 8.
1 In addition to the evidence attached and cited herein, the City of Austin anticipates filing two expert reports in advance of the hearing set for June 26, 2017: one report summarizing negative social impacts, and one report summarizing negative economic impacts.
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22. In Austin, major international events such as South by Southwest (SXSW) have also expressed their concern that SB 4 will impact their ability to attract talent and customers. See Ex. 7. In 2016, SXSW brought an economic benefit of $325.3 million to the Austin community, including the economic impact of attendance, consumer participation, and operations. Id., ¶¶ 4-10; Ex. 7-A. SXSW alone attracts tens of thousands of foreign nationals as registrants and participating speakers, artists, showcase presenters, and filmmakers. Ex. 7 ¶ 11. SXSW believes that if SB 4 takes effect, it will negatively impact the diversity and quality of its programming as well as the willingness of foreign and domestic customers to attend the festival. Id. ¶¶ 12, 14. Two United States Senators have already called on SXSW to withdraw from the State of Texas. Ex. 7-B.
VI. SB 4 Will Inevitably Lead to Extended Detentions 23. SB 4 authorizes individual police officers to conduct investigations of immigration status. See TEX. GOV’T CODE §§ 752.053(b)(1)-(3) (effective Sept. 1, 2017). Local police are not trained or qualified to make status determinations, however. See Doc. 24-2 (Roxana Bacon Declaration); Ex. 4, ¶ 21. 24. SB 4 requires law enforcement agencies to determine whether custodial detainees are subject to an ICE detainer request. See TEX. CODE CRIM. PROC., Art. 2.251(a) (effective Sept. 1, 2017). This requirement is only excused if a custodial detainee can present governmental identification. Id., Art. 2.251(b). Many people are lawfully present within the State but do not have governmental identification, however. See Ex. 6 (Jacqueline Watson Declaration). These individuals will nevertheless be subject to extended detention for purposes of communication with ICE. Although the Austin Police Department does not currently receive ICE detainer requests, it has no method determine whether people it detains may be the subject of such requests. See Ex.
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4, ¶¶ 18-19. Therefore, Austin has no method of ensuring compliance with this aspect of SB 4. Id.
ARGUMENT AND AUTHORITIES I. The Supremacy Clause Bars Enforcement of Senate Bill No. 4
A. The City joins the City of El Cenizo’s preemption arguments. 25. City reiterates that it joins with the El Cenizo arguments in support of injunctive relief, including the El Cenizo arguments that SB 4 is preempted by federal immigration law and conflicts with the First, Fourth, and Fourteenth Amendments. See Doc. 24-1 at 22-29, 37-47. In addition, the City offers the following supplemental arguments.
B. SB 4 conflicts with the First Amendment 26. SB 4 threatens to punish any local official who “endorses” a policy that “materially limits” the enforcement of immigration laws.” TEX. GOV’T CODE § 752.053(a)(1). In a related action, to address plaintiffs’ free speech concerns, Texas argues that elected officials such as Austin’s Mayor and City Council do not have First Amendment-protected rights. See Texas v. Travis County, Case No. 1:17-cv-425-SS, Doc. 23, ¶ 312 (W.D.Tex. May 31, 2017) (“The First Amendment does not protect speech by the government or government officials acting in their official capacities.”). This assertion is entirely without merit. See Bond v. Floyd, 385 U.S. 116 (1966). 27. SB 4 violates the First Amendment rights of every City of Austin employee, including (especially) Austin’s elected and appointed officials.2 SB 4 prohibits Austin’s employees and Austin’s elected and appoint officials from endorsing any formal policy, rule, or
2 The sweep of SB 4 is so broad because it defines a “local entity” to include a municipality’s governing body, as well as every officer or employee. TEX. GOV’T CODE § 752.051(5).
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ordinance, as well as any informal, unwritten policy that would prohibit or materially limit the enforcement of immigration laws. TEX. GOV’T CODE § 752.053(a). The punishments for violating these provisions include sizeable civil fines as well as removal from office for elected and appointed officials. Id. at 752.056, 752.0565. These draconian penalties impose a prior restraint on thousands of Austin employees and officials. Perhaps more disturbingly, SB 4—by targeting elected and appointed officials who express unwanted viewpoints—undermines a free and robust public discussion of the important topic of whether local government and its resources should be enforcing federal immigration laws.
28. Austin’s elected and appointed officials have consistently exercised their constitutionally-protected rights of speech, association, and petition to oppose SB 4 and its pending implementation. See Ex. 1 ¶¶ 4-9; Ex. 2 ¶¶ 10-14; Ex. 3 ¶¶ 4-12; Ex. 4 ¶¶ 29-31; Ex. 5 ¶¶ 4-6.
29. The Supreme Court has held that infringing on the rights of legislators by punishing them for speech on political topics is particularly invidious. In Bond v. Floyd, the Georgia House of Representatives refused to seat Julian Bond—who had been duly elected by the voters in his district—because of public comments he had made against the Vietnam War. 385 U.S. at 118124. In support of this action, the state argued that even if private citizens would enjoy protection for similar comments, it could require a higher degree of loyalty from a legislator. Id. at 135. The Court flatly rejected this argument, holding: “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude on issue of policy.” Id. at 136.
30. Here, SB 4 muzzles any dissenting voices from employees, officials, and local legislators alike by prohibiting them from endorsing a policy that would prevent or limit the municipality from enforcing immigration laws. Thus, for example, even if the City of Austin police
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chief were to enact written policies fully in compliance with SB 4, but he were to speak out at a community event that such policies were wrongheaded, and that officers should not be assisting ICE, the City could be fined and he could be removed from office. Moreover, if a member of the City Council initiated even a non-binding resolution against local enforcement of immigration law, and if the City Council adopted such a resolution after a vigorous debate, all of the City Council members (even those who opposed the resolution) could be subject to removal from office. See Central Power & Light Co., City of San Juan, 962 S.W.2d 602, 612-13 (Tex. App.—Corpus Christi 1998, pet. dism’d w.o.j.) (“The only way that a political subdivision of the state can act is by and through its governing body.”). Accordingly, SB 4 stifles political debate on an important topic, and thwarts the will of the people by removing from office the representatives they elected when those representatives dare to express viewpoints outlawed by SB 4.
C. SB 4 conflicts with the Fourth Amendment. 31. SB 4 violates the Supremacy Clause because it conflicts with the Fourth Amendment of the United States Constitution in at least two fundamental respects. First, SB 4 requires the City to allow its officers to extend detention for purposes of civil immigration investigations. TEX. GOV’T CODE §§ 752.053(b)(1)-(3). Because civil immigration violations are not crimes, extended detention for such investigations is unlawful. See Trujillo Santoyo v. U.S., Case No. 5:16-CV-855-OLG, Doc. 36 at 10-16 (W.D.Tex. June 5, 2017) (discussing applicable precedent). Second, SB 4 imposes a duty on the City to delay release of anyone in custody unless ICE confirms that a person is not subject to a detainer request or unless the person produces governmental identification. See TEX. CODE CRIM. PROC., Art. 2.251. Because many lawful Texas residents do not possess governmental identification (see Ex. 6), SB 4 will inevitably subject custodial detainees to unreasonable detention.
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32. SB 4’s requirement that local law enforcement agencies give their officers nearly complete discretion on whether and when to inquire into a detainee’s or arrestee’s immigration status violates the Fourth Amendment’s protection against unreasonable seizures.3 Although Austin will not itself be subject to unreasonable seizures under SB 4, Austin cannot “materially limit” its officers from conducting inquiries into immigration status. See TEX. GOV’T CODE § 752.053(b)(1). This aspect of SB 4 harms Austin in at least two ways. First, because Austin will not be able to limit how and when its officers inquire into immigration status, APD officers will inevitably violate a person’s Fourth Amendment rights—with taxpayers holding the bag under 42 U.S.C. § 1983.4 Second, Austin’s police chief will lose the ability to control his officers’ time and resources. See Ex. 4, ¶¶ 22-27.
33. While it is true that facial challenges to a statute are difficult to win, and while it is also true that it is unusual for a party that will not face a direct constitutional harm under the statute to argue that the statute violates the Constitution, it is also true that SB 4 is a most unusual law. See Los Angeles, Calif. v. Patel, 135 S,Ct. 2443, 2449-56 (2015) (noting that facial challenges to a statute are difficult for plaintiffs, but upholding a facial challenge to a city ordinance that permitted police to search hotel registries). Specifically, it is unusual (if not unprecedented) for a state government to forbid local law enforcement agencies from exercising control over peace
3 SB 4 also provides that officers may not, except in limited circumstances, inquire into a detainee’s immigration status if the sole reason for that person’s detention is that he is the victim of or a witness to a crime. TEX. GOV’T CODE § 752.051(4); TEX. CODE OF CRIM. P. ART. 2.13 (d), (e). 4 Indeed, to comply with SB 4 Austin may have to implement a policy permitting officers to inquire into a detainee’s immigration status and to assist ICE. Such a policy might well be necessary to insulate Austin from claims that it has an informal policy preventing such conduct, or that it has a pattern or practice of prohibiting such conduct. See Ex. 4, ¶ 23. Moreover, Austin could be found liable for having a policy that proximately causes constitutional violations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (holding that a city may be found liable under § 1983 if a formally adopted policy is the proximate cause of violation of a person’s constitutional rights.
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officers by prohibiting or “materially limiting” them from engaging in unconstitutional conduct. It is because of the unusual nature of SB 4, and the inevitable Fourth Amendment violations it will cause, that Austin faces imminent harm.
34. It is a “seizure” under the Fourth Amendment for an officer to conduct a brief investigatory detention of a person, including by stopping a motorist. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). An officer will violate the Fourth Amendment if his actions during the stop are not “reasonably related in scope to the circumstances that justified the stop.” Brigham, 382 F.3d at 506. During a traffic stop, for example, officers can ask for a driver’s license, proof of insurance, run a computer check for warrants or other pertinent information, and issue a citation. United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2004). During this time, an officer can question the detainee, but a court will scrutinize those questions if they do not relate to the purpose of the stop. Id. Moreover, any extension of the stop beyond the time needed for the officer to determine whether to write a citation, or whether criminal activity is afoot, is an unreasonable seizure that violates the Fourth Amendment. Id. at 341-42.
35. The Austin Police Department conducts many thousands of investigatory detentions a year, including thousands of traffic stops. See Ex. 4 ¶ 25. SB 4, as it applies to Austin, prohibits the police chief from enacting a policy that would “materially limit” how and when officers inquire into a detainee’s immigration status. See Patel, 135 S.Ct. at 2452 (holding that when addressing a facial challenge to the statute, a reviewing court must focus on how the law will actually restrict those it affects). Accordingly, Austin or its police chief could not, without risk of running afoul of SB 4, prohibit officers from inquiring into a detainee’s immigration status in all
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cases except where such an inquiry is relevant to the purpose of the stop.5 Similarly, the police also could not prohibit officers from prolonging a stop by inquiring into immigration status after the officer has written a citation, or determined that the detainee was not involved in any criminal activity.
36. Unfortunately, in the absence of such sensible policies, and with thousands of detentions and 1,900 police officers, this provision of SB 4 will inevitably lead to Austin police officers violating the constitutional rights of individuals who are detained by the police. Accordingly, SB 4 leaves Austin (and every locality in Texas) between the hammer6 and the anvil—face punishment under SB 4 for enacting a sensible policy, or face paying damages for civil rights violations.7 Austin respectfully asks the Court to enjoin the enforcement of SB 4 and, in particular, Texas Government Code section 751.053(b)(1) and Texas Code of Criminal Procedure articles 2.251 and 6.01(e)(2).
D. SB 4 conflicts with the Equal Protection Clause. 37. To demonstrate that SB 4 conflicts with the Equal Protection Clause of the 14th Amendment, Austin must show that the law was passed with a discriminatory purpose. See Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66 (1977); see also Veasey II, 830 F.3d at 229-231. In Arlington Heights, the Supreme Court set out five nonexhaustive factors to determine whether a particular decision was made with a discriminatory purpose,
5 Indeed, such a circumstance is difficult to imagine, as there are very few crimes that APD investigates for which immigration status is an element or relevant to the crime. See Ex. 4 ¶ 25. 6 This metaphor is particularly apt given Governor Abbot’s promise to “hammer” jurisdictions who impose “sanctuary city” policies. See Ex. 9. 7 For these reasons, Austin’s pre-enforcement challenge of SB 4 is ripe under the factors identified in Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). Specifically, the question of whether SB 4 will inevitably lead to the Fourth Amendment violations does not require additional factual development, and Austin (not to mention the citizens detained by its police) will face considerable hardship is SB 4 is allowed to go into effect on September 1, 2017.
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and courts must perform a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Those factors include: (1) the historical background of the decision, (2) the specific sequence of events leading up to the decision, (3) departures from the normal procedural sequence, (4) substantive departures, and (5) legislative history, especially where there are contemporary statements by members of the decisionmaking body. Legislators' awareness of a disparate impact on a protected group is not enough: the law must be passed because of that disparate impact. The challengers bear the burden to show that racial discrimination was a substantial or motivating’ factor behind enactment of the law; if they meet that burden, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor. Veasey II, 830 F.3d at 229-231 (citations and punctuation omitted). 38. Here, in regard to the historical background, the Texas Legislature has passed an extended series of discriminatory and unconstitutional laws targeting the Hispanic community. Veasey II, 830 F.3d at 239-340; Veasey I, 71 F.Supp.3d at 702 (S.D.Tex. 2014); Texas v. U.S., 887 F.Supp.2d at 161. 39. Leading up to the beginning of the legislative session, and continuing through the passage and signing of SB 4, Governor Abbott repeatedly emphasized that this law is targeted at immigrants who cross the Texas-Mexico border. See Ex. 9. These immigrants are overwhelmingly Hispanic. Ex. 10 (over 96% of immigrants apprehended by DHS are Hispanic). 40. In addition to the historical background and the Governor’s statements during the consideration of SB 4, the El Paso County plaintiffs have identified numerous other details that indicate the anti-Hispanic intent of SB 4. See Doc. 51 ¶¶ 46-68. 41. SB 4 is also certain to have a disproportionate impact on Hispanic Texans and Hispanic visitors. As the El Cenizo plaintiffs have argued, the law provides no guidance to police officers on how to constitutionally apply the provision permitting investigation of immigration status. See Doc. 24-1 at 43-47. The El Paso County plaintiffs also describe the discriminatory effect of SB 4. Doc. 51 ¶¶ 69-79. The City’s expert on driver’s license issues, Jacqueline Watson,
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describes how the provisions of SB 4 that excuse compliance with ICE detainer requests when a custodial detainee can present government identification impose a disproportionate impact on Hispanic Texans. See Ex. 6.
42. In sum, given the historical background, the events leading up to the enactment of SB 4, and the certain disproportionate impact of SB 4 enforcement, SB 4 conflicts with the Fourteenth Amendment and thus violates the Supremacy Clause of the United States Constitution.
E. SB 4 conflicts with Executive Branch policy. 43. SB 4 also conflicts with the federal definition of an impermissible “sanctuary jurisdiction.” This year, the Department of Justice has issued multiple statements defining what an impermissible “sanctuary” is. For example, in City of Richmond v. Trump, Case No. 3:17-cv01535-WHO, United States District Court for the Northern District of California, the Department of Justice argued a municipality is only a “sanctuary” if it willfully refuses to comply with 8 U.S.C. § 1373, an immigration reporting statute. Case No. 3:17-cv-01535-WHO, Doc. 16 at 19-21 (filed Apr. 18, 2017). Attorney General Sessions reiterated this policy by a memorandum issued May 22, 2017. See Ex. 11. Specifically, Sessions wrote: After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). Ex. 11 at 2. 44. 8 U.S.C. § 1373 is a federal immigration law that requires governmental entities to share citizenship and immigration status information with ICE. 8 U.S.C. § 1373(a). The law does not impose any obligations on local authorities to affirmatively collect such information.
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45. SB 4, on the other hand, would denominate as impermissible “sanctuaries” any city or county that declines civil detainer requests (that are otherwise voluntary under 8 U.S.C. § 1357) or that adopts, enforces, or endorses a policy that “materially limits” immigration enforcement. Further, SB 4 would penalize municipalities with fines, remove elected officials from office, and criminalize police chiefs who fail to follow SB 4 mandates. Because SB 4 defines “sanctuary” in a manner inconsistent with federal definitions, and because SB 4 imposes sanctions far beyond the carefully-calibrated measures permitted by Congress and the Department of Justice, the law violates the Supremacy Clause of the U.S. Constitution.
III. The Texas Constitution Home Rule Amendment Bars Enforcement of SB 4 46. SB 4 violates the Home Rule Amendment to the Texas Constitution because it invades Austin’s police power authority and attempts to assert authority over civil immigration enforcement, a matter over which the people of Texas have given the State no authority. 47. The Texas Constitution exemplifies the desire of Texas citizens to restrict governmental powers. See, e.g., LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex. 1986); TEX. CONST. art. I, § 29. The Texas Supreme Court regards “as axiomatic” that “a state constitution is in no manner a grant of power,” but instead operates solely as a limitation on power. Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 202 (Tex.App.—Austin 2008, no pet.). “All power which is not limited by the constitution inheres in the people, and a legislative act is valid only when the constitution contains no prohibition against it.” Id. 48. The people of Texas have expressly reserved to charter cities, such as the City of Austin, the power of self-government. See TEX. CONST. art. XI, § 5. “These cities look to the acts of the legislature not for grants of power but only for limitations on their power.” City of Univ. Park v. Van Doren, 65 S.W.3d 240, 247-48 (Tex.App.—Dallas 2001, pet. denied).
18

Case 5:17-cv-00404-OLG Document 57 Filed 06/19/17 Page 19 of 21
49. Here, SB 4 seeks to preempt local authority and require Austin police to participate in civil immigration enforcement actions. Although this might be construed as general law imposing a limitation on local power, the Legislature has no authority to legislate in the area of the civil immigration. The people of Texas have granted the State no such authority. Accordingly, SB 4 invades Austin’s home rule authority—and in particular its exercise of its police power for the benefit of the public welfare—in violation of the Texas Constitution.
IV. The Balance of Harms Favors Issuance of Immediate Injunctive Relief 50. Ordinarily, a plaintiff may obtain a preliminary injunction only if the court finds that it meets four factors: (1) a substantial likelihood they will prevail on the merits, (2) a substantial threat that plaintiffs will suffer irreparable injury in the absence of injunctive relief, (3) that the threatened injuries outweigh any possible harm to the State, and (4) issuance of injunctive relief will serve the public interest. See Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451, 456-57 (5th Cir. 2016) (stating standard). However, to the extent a case involves preemption under the Supremacy Clause, a finding of a substantial likelihood of success on the merits may implicitly carry with it a determination that the other three requirements have been satisfied. See Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 783 (5th Cir. 1990). Regardless, in this case, Austin meets all of the elements for obtaining a preliminary injunction. 51. As the El Cenizo plaintiffs argue, the plaintiffs meet the first requirement for injunctive relief because SB 4 will violate their constitutional rights which, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Doc. 24-1 at 50 (citing cases). 52. In addition to the El Cenizo evidence, Austin presents evidence of substantial harm in the absence of injunctive relief. The likely harms include injuries to student learning, public health, public safety, and the exercise of protected rights of free speech, association, and petition.
19

Case 5:17-cv-00404-OLG Document 57 Filed 06/19/17 Page 20 of 21
53. The State cannot show that it will suffer any injuries that outweigh the threats to
plaintiffs. The State is not authorized by the people of Texas to legislate in the area of immigration.
The State will not be injured by maintaining the status quo: i.e., permitting cities and counties to
continue to operate without new, unfunded civil immigration mandates.
54. Finally, the balance of the hardships and the public interest favor injunctive relief.
If SB 4 is allowed to go into effect, immigrant communities in Austin and across Texas will be
subject to a new reign of terror, and the negative impacts will extend to their family members, their
schools, their places of employment, and to the community and economy as a whole. Texas cannot
establish any threatened harms that would outweigh plaintiffs’ injuries.
CONCLUSION The City of Austin requests that the Court protect the people of Texas from the
unconstitutional deprivations threatened by the State’s pending enforcement of SB 4 by issuing a
preliminary injunction.
Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov
20

Case 5:17-cv-00404-OLG Document 57 Filed 06/19/17 Page 21 of 21
CERTIFICATE OF CONFERENCE This is to certify that the City of Austin conferred with Texas and the Texas attorneys confirmed the State opposes this motion.
/s/ Michael Siegel MICHAEL SIEGEL CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 19th day of June, 2017. /s/ Michael Siegel MICHAEL SIEGEL
21

 
 Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, ET AL. PLAINTIFFS,
TRAVIS COUNTY, TRAVIS COUNTY JUDGE SARAH ECKHARDT, AND TRAVIS COUNTY SHERIFF SALLY HERNANDEZ
PLAINTIFF-INTERVENORS,
V.
STATE OF TEXAS, ET AL. DEFENDANTS.

§ § § § § CIVIL CASE NO. 5:17-CV-404-OLG § § § § § § § § §

PLAINTIFF-INTERVENORS TRAVIS COUNTY, TRAVIS COUNTY JUDGE SARAH ECKHARDT AND TRAVIS COUNTY SHERIFF SALLY HERNANDEZ'S APPLICATION FOR PRELIMINARY INJUNCTION
Plaintiff-Intervenors, Travis County, Travis County Judge Sarah Eckhardt (in her official capacity) and Travis County Sheriff Sally Hernandez (in her official capacity) (Hereafter “Travis County Plaintiff-Intervenors”) hereby join the Application for Preliminary Injunction filed in this cause by Plaintiffs City of El Cenizo, et al., and adopt by reference Plaintiffs’ declarations and Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction. [DKT 24].
Travis County Plaintiff-Intervenors offer the additional declaration of Travis County Sheriff Sally Hernandez, attached hereto as Ex. 1, to support Travis County Plaintiff Intervenors Application for Preliminary Injunction. Sheriff Hernandez has provided information about the particular harm she has suffered and her perspective as a target of the State’s legislation, SB 4.

Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 2 of 6
(See attached Declaration. Ex. 1). In her Declaration, Sheriff Hernandez addresses numerous issues related to SB 4 including the effect of SB 4’s detainer provision on the Travis County Jail.
As set forth in the Memorandum, [DKT 24] Plaintiffs have established that they and Travis County Plaintiff-Intervenors are likely to succeed on the merits of their claims that SB 4 violates the Constitution; that Plaintiffs and Travis County Plaintiff-Intervenors, will suffer irreparable harm if the Court does not enjoin SB 4; that the Defendants will suffer no harm if the Court preserves the status quo pending adjudication of this matter on the merits; that the balance of hardships tips strongly in favor of Plaintiffs and Travis County Plaintiff-Intervenors and that a preliminary injunction in this case advances the public interest.
So as to not to delay the proceeding, for these reasons, and the reasons detailed in Plaintiffs’ Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction, Travis County Plaintiff-Intervenors respectfully request that the Court grant the Plaintiff-Intervenors Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Hernandez’s Application for Preliminary Injunction. ///

Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 3 of 6

Dated: June 19, 2017

Respectfully Submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX
By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley
Assistant County Attorney State Bar No. 19627575 sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney State Bar No. 11784853 tim.labadie@traviscountytx.gov ATTORNEYS FOR TRAVIS COUNTY PLAINTIFF-INTERVENOR

Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 4 of 6

CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2017, the foregoing Plaintiff-Intervenors Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Sally Hernandez’s Application for Preliminary Injunction was served on the following attorneys of record in the manner stated, pursuant to Fed. R. Civ. P. 5(b):

ATTORNEYS FOR THE (CONSOLIDATED) PLAINTIFFS:

Via CM/ECF Lee Gelernt Spencer Amdur Andre I. Segura Omar C. Jadwat American Civil Liberties Union 125 Broad Street New York, NY 10004 lgelernt@aclu.org samdur@aclu.org asegura@aclu.org ojadwat@aclu.org
Via CM/ECF Cecillia D. Wang Cody H. Wofsy American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 cwang@aclu.org cwofsy@aclu.org
Via CM/ECF Edgar Saldivar American Civil Liberties Union Foundation of Texas 1500 McGowen Street, Suite 250 Houston, TX 77004 esaldivar@aclutx.org

Via CM/ECF Jo Anne Bernal El Paso County Attorney 500 E. San Antonio 5th Floor, Suite 503 El Paso, TX 79901 joanne.bernal@ca.epcounty.com
Via CM/ECF Nina Perales Marisa Bono Celina Y. Moreno Jack Salmon MALDEF 110 Broadway Street #300 San Antonio, TX 78205 nperales@maldef.org mbono@maldef.org cmoreno@maldef.org jsalmon@maldef.org
Via CM/ECF Tanya G. Pellegrini Law Office of Tanya G. Pellegrini 1512 14th Street Sacramento, CA 95814 tpellegrini@maldef.org

Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 5 of 6

Via CM/ECF Jose Garza Michael Moran Garza, Golando, Moran, PLLC. 115 E. Travis St., Ste. 1235 San Antonio, TX 78205 garzpalm@aol.com michael@ggmtx.com
Via CM/ECF Luis Roberto Vera, Jr. LULAC National General Counsel The Law Office of Luis Roberto Vera, Jr. & Associates 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 lrvlaw@sbcglobal.net
Via CM/ECF Max Renea Hicks Law Office of Max Renea Hicks P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Via CM/ECF Efren Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 efren@texascivilrightsproject.org
Via CM/ECF Andrea E. Senteno Law Office of Andrea E. Senteno 1016 16th Street, NW, Suite 100 Washington, DC 20036 asenteno@maldef.org
Via CM/ECF Deborah Lynne Klein Office of the City Attorney, Litigation Division Frost Bank Tower 100 West Houston Street, 18th Floor San Antonio, TX 78205-3966 Deborah.klein@sanantonio.gov

Via CM/ECF Mimi Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 mimi@texascivilrightsproject.org

ATTORNEYS FOR INTERVENORS CITY OF AUSTIN:

Via EM/ECF Michael Siegel Christopher Coppola Assistant City Attorneys City of Austin-Law Department P.O. Box 1546 Austin, TX 78767-1546 Michael.seigel@austintexas.gov Christopher.coppola@austintexas.gov

Case 5:17-cv-00404-OLG Document 58 Filed 06/19/17 Page 6 of 6
ATTORNEYS FOR THE DEFENDANTS: Via CM/ECF Darren L. McCarty David Jonathan Hacker Joel Stonedale Andrew Drake Leonie, III David Austin Robert Nimocks Office of the Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, TX 78711 Darren.mccarty@oag.texas.gov David.hacker@oag.texas.gov Joel.stonedale@oag.texas.gov Andrew.leonie@texasattorneygeneral.gov Austin.nimocks@oag.texas.gov
And I hereby certify that a true and correct copy of the foregoing has been sent by other means, on the 19th day of June, 2017, to the following: Stephen Kang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 skang@aclu.org
/s/ Sherine E. Thomas Sherine E. Thomas Assist. County Attorney

 
 Case 5:17-cv-00404-OLG Document 59 Filed 06/19/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

CITY OF AUSTIN’S OPPOSED MOTION FOR JUDICIAL NOTICE

TO THE HONORABLE JUDGE ORLANDO L. GARCIA:

The City of Austin (“City”) files this motion for judicial notice, as authorized by Federal

Rules of Evidence, Rule 201, in support of its concurrently filed motion for preliminary injunction.

MOTION

1. The City requests judicial notice of the 2016 report by the Pew Research Center,

“Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009,” authored by Jeffrey

S. Passel and D’Vera Cohn. See Ex. A. Specifically, the City requests judicial notice of the nations

of origin of unauthorized immigrants in the United States, including the facts that: as of 2014,

approximately 11,100,000 unauthorized immigrants lived in the United States; approximately

5,850,000 of those immigrants were Mexican; approximately 700,000 were from El Salvador;

approximately 525,000 were from Guatemala; approximately 350,000 were from Honduras;

approximately 170,000 were from the Dominican Republic; approximately 130,000 were from

Ecuador; approximately 130,000 were form Columbia; and approximately 100,000 were from

Peru. Id. at 14.

Case 5:17-cv-00404-OLG Document 59 Filed 06/19/17 Page 2 of 3
2. The court may take notice of adjudicative facts that are not subject to reasonable
dispute if the facts either (1) are generally known within the court’s territorial jurisdiction or (2)
can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned. FED. R. EVID., R. 201(b); Taylor v. Charter Medical Corp., 162 F.3d 827, 829 (5th
Cir. 1998).
3. Many federal courts have relied upon Pew Research Center reports as part of their
decisions. See, e.g., Fisher v. University of Texas at Austin, 136 S.Ct 2198, 2230 fn. 8 (2016)
(report regarding rates of interracial marriage); Riley v. California, 134 S.Ct. 2473, 2484 (2014)
(report regarding rate of smart phone ownership). In a case before the Southern District of Texas,
Brownsville Division, the United States government relied upon the same report that the City
introduces here. See Texas v. U.S., 86 F.Supp.3d 591, 612 and fn. 11 (S.D.Tex. 2015).
4. The City seeks judicial notice of facts that can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned. Accordingly, the City asks the
Court to take judicial notice of the requested facts.
Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov
2

Case 5:17-cv-00404-OLG Document 59 Filed 06/19/17 Page 3 of 3 CERTIFICATE OF CONFERENCE
This is to certify that I attempted to confer with attorneys for the State of Texas prior to filing this motion. Brantley Starr confirmed that his client opposes the motion.
/s/ Michael Siegel MICHAEL SIEGEL CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 19th day of June, 2017. /s/ Michael Siegel MICHAEL SIEGEL
3

 
 Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER THE
CONSOLIDATED CASES

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 2 of 8
Plaintiffs El Paso County et al. (ECF No. 43) and El Cenizo et al. (ECF No. 44) contend that venue is proper in San Antonio and improper in Austin. But Plaintiffs ignore that the sole residence of Texas officials is Austin, do not show how their preenforcement challenge to SB 4 bears relevant or legitimate contacts to San Antonio, and fail to demonstrate that the first-to-file rule should not apply. The Court should grant Texas’s motion to dismiss or transfer.1 I. Austin Is the Only Proper Venue.
A. State Officials Have Only One Residence. “The general rule in suits against public officials is that a defendant’s residence for venue purpose[s] is the district where he performs his official duties.” Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355, 1360 (5th Cir. 1980), rev’d on other grounds, Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981). Thus, Austin is the appropriate venue for challenges to SB 4 regardless of the outcome of other pending litigation in the Austin Division. This residence principle is not limited to federal officials as there are “no persuasive arguments for treating state officials differently from their federal counterparts.” See Procario v. Ambach, 466 F. Supp. 452, 454 (S.D.N.Y. 1979). Indeed, 28 U.S.C. § 1391 cannot simultaneously possess two conflicting interpretations. Whether a suit is against federal officials or state officials, section 1391 applies. Thus, suits against state officials must be brought in the state capital. See, e.g., Procario, 466 F. Supp. at 454. Cases interpreting section 1391 find only one official residence, see 14D
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is aware of the Court’s order but files this reply for the Court’s review when it resolves this issue. Moreover, Texas asserts that this case should be dismissed or transferred regardless of the outcome of the Austin Division case.
1

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 3 of 8
Charles Alan Wright et al., Federal Practice and Procedure § 3815 (4th ed. 2017). Many involve federal officials.2 But the rule of Butterworth v. Hill, 114 U.S. 128 (1885), applies to state officials, too. See Stanton-Negley Drug Co. v. Pa. Dep’t of Pub. Welfare, No. 07-1309, 2008 WL 1881894 (W.D. Pa. 2008) (“It is well established that, for purposes of venue a state official’s residence is located at the state capitol, even where branch offices of the state official’s department are maintained in other parts of the state.” (quotation marks omitted)).
In O’Neill v. Battisti, for example, the court held that a case against the Ohio Supreme Court must be maintained in Columbus. 472 F.2d 789, 791 (6th Cir. 1972). See also Republican Party of N.C. v. Martin, 682 F. Supp. 834, 836 (M.D.N.C. 1988); Birnbaum v. Blum, 546 F. Supp. 1363, 1366 (S.D.N.Y. 1982). Likewise, in Harris v. Kasich, venue for a lawsuit presenting “important questions of Constitutional law (specifically Due Process) and § 1983 violations of rights under the color of state law” was appropriate in the state capital. No. 1:11CV311, 2011 WL 646748, at *3–4 (N.D. Ohio Feb. 15, 2011). See also Smith v. Hoffner, 15-CV-10349, 2015 WL 401012, at *1 (E.D. Mich. Jan. 28, 2015).
In Oneida Nation of N.Y. v. Paterson, 6:10-CV-1071, 2010 WL 4053080 (N.D.N.Y. Oct. 14, 2010), vacated on other grounds sub nom., Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154 (2d Cir. 2011), though the New York official “maintains offices [outside the capital] and conducts significant business there,” id., at *3, the litigation belonged at the seat of New York government—Albany. Id. at *5. See also Coffey v. Coffey, 2:14-CV-2912-SHL-DKV, 2015 WL 686246, at *3 (W.D. Tenn. Feb. 18, 2015) (transferring to the district where the government defendants were headquartered);
2 See, e.g., Davis v. Trigo Bros. Packing Corp., 266 F.2d 174 (1st Cir. 1959); Stroud v. Benson, 254 F.2d 448 (4th Cir. 1958); Ernst v. Sec’y of the Interior, 244 F.2d 344 (9th Cir. 1957); Trueman Fertilizer Co. v. Larson, 196 F.2d 910 (5th Cir. 1952).
2

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 4 of 8
Partisan Def. Comm. v. Ryan, 94 C 260, 1994 WL 13764, at *1 (N.D. Ill. Jan. 14, 1994) (rejecting claim that the Illinois Secretary of State resided at a satellite office).
Were the extant dispute in Rhode Island, Connecticut, or another geographically small jurisdiction, the practical challenges of venue between divisions is not that complicated. But here, though Plaintiffs prefer San Antonio, the argument they make demands more. Indeed, Plaintiffs are asking the Court to rule that, in the posture of this litigation—a pre-enforcement challenge to a brand new law—they could sue wherever they desire (El Paso, Brownsville, or Amarillo)—merely because the theory of Texas government exists throughout the state. What Plaintiffs demand is unsupportable, both by the law and the practical realities that flow therefrom.
B. Austin Is Where All Claims in This Litigation Arose. In addition to Austin being the residence of the Texas officials who have been sued, the new law was enacted and signed in Austin. The Austin Division is required, not only because of the requirement of 28 U.S.C. § 1391(c)(2), but “because the operative facts have significant connection to this [division].” Significant to venue is where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). In that SB 4 is Texas law, the only events that give rise to this facial dispute are those that surround the lawmaking process, all of which occurred in Austin. See, e.g., Fla. Hometown Democracy, Inc. v. Browning, 08-CV-80636-CIV, 2008 WL 3540607, at *4 (S.D. Fla. Aug. 12, 2008); N. Ky. Welfare Rights Ass’n v. Wilkinson, No. 90-6268, 1991 WL 86267, at *5 (6th Cir. 1991) (unpublished decision) (“venue in this case was proper only in [the capital]. That is where all of the [government officials] have their official residences; it is the district most convenient to the [government officials]; and it is the district which has the weightiest contacts with the plaintiffs’ claim.”). The entire basis of Plaintiffs’ arguments—that they will face harm in San Antonio at some point in the future—is purely speculative, given that SB 4 has not
3

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 5 of 8
yet taken effect. And regardless, any argument that venue can lie in a “place of injury,” which Plaintiffs could allege is in any part of Texas, “is contrary to the venue statute and the weight of jurisprudence.” Gray Cas. & Sur. Co. v. Lebas, No. CIV.A. 12-2709, 2013 WL 74351, at *2 (E.D. La. Jan. 7, 2013). Accordingly, even if the Court could focus on the “place of injury,” as Plaintiffs urge, instead of the acts or omissions of Texas officials, venue is still improper in the San Antonio Division.
Finally, Plaintiffs assert that the venue statute speaks in terms of districts, rather than divisions. ECF No. 43 at 3–4. But 28 U.S.C. § 1406 expressly addresses venue in improper divisions, and, as discussed above, this is the wrong division to resolve the constitutionality of SB 4. See 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” (emphasis added)). There is no cognizable connection to the San Antonio Division for venue purposes that would warrant this Court’s exercise of jurisdiction to resolve these Plaintiffs’ claims. II. There Is No Justification For Deviating From the First-to-File Rule.
“The rule of thumb in the Fifth Circuit is that the court initially seized of a controversy should be the one to decide whether it will try the case.” Superior Sav. Ass’n v. Bank of Dall., 705 F. Supp. 326, 330 (N.D. Tex. 1989). Plaintiffs’ argument against application of the first-to-file rule hinges on the purported impropriety of Texas’s declaratory judgment action in the Austin Division.
Plaintiffs, however, do not acknowledge, much less address, the precedent authorizing Texas’s lawsuit.3 Contrary to El Paso Plaintiffs’ assertions, the cases they cite, including Mission Insurance Company v. Puritan Fashions Corporation, 706
3 See Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003); St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994); Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 996 F.2d 774 (5th Cir. 1993).
4

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 6 of 8
F.2d 599 (5th Cir. 1983) do not invalidate Texas’s Austin lawsuit. The Fifth Circuit, in fact, subsequently addressed Mission in Sherwin-Williams, St. Paul, and Travelers. In Sherwin-Williams, for example, the Fifth Circuit explained the rare circumstances where the rule announced in Mission applies. Mission involved “‘procedural fencing’ undermining ‘the wholesome purposes’ of declaratory actions.” Sherwin-Williams, 343 F.3d at 397 (citing Mission, 706 F.2d at 602 n.3). Here, Texas’s lawsuit does not undermine the genuine purpose of declaratory actions. Rather, Texas sought “to avoid a multiplicity of suits in various forums” “so that the one pertinent issue . . . could be resolved consistently in one, rather than multiple, forums.” Travelers, 996 F.2d at 777. “[Texas’s] goal, unlike that of changing forums or subverting the real plaintiff’s advantage in state court, is entirely consistent with the purposes of the Declaratory Judgment Act.” Id. Plaintiffs thus cannot point to any proper justifications for avoidance of the first-to-file rule.
A. Even If There Are Multiple Proper Venues, the First-Filed Venue Controls.
Though Plaintiffs argue that venue in Austin is not mandatory, they do not argue that Austin is improper. ECF No. 43 at 3. Texas’s first-filed declaratory judgment action takes precedence over Plaintiffs’ subsequent suits and intervention efforts. See, e.g., Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 606 (5th Cir. 1999).
CONCLUSION These consolidated cases should be dismissed, or, at minimum, transferred to the Austin Division for consolidation with Texas v. Travis County, No. 1:17-cv-425SS (W.D. Tex.).
5

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 7 of 8
Respectfully submitted this the 22nd day of June, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov WILLIAM T. DEANE Texas Bar No. 05692500 bill.deane@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
6

Case 5:17-cv-00404-OLG Document 84 Filed 06/22/17 Page 8 of 8 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 22nd day of June, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
7

 
 Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 1 of 70
I

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CITY OF EL CENIZO, TEXAS; MAYOR RAUL L. REYES, City of El Cenizo; MAVERICK COUNTY; MAVERICK COUNTY SHERIFF TOM SCHMERBER; MAVERICK COUNTY CONSTABLE PRECINCT 3-1 MARIO A. HERNANDEZ; and LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

FILED
JUN 192017
CLERK U.S. OtSIRICT CLERK
ESTER tRtCT OF TEXAS
BY
,/ .) DEPUTY

Plaintiffs

STATE OF TEXAS; GOVERNOR GREG ABBOTT, in his official capacity; and TEXAS ATTORNEY GENERAL KEN PAXTON, in his official capacity

Civil Action No. 5: 17-CV-404-OG [Lead Case]

Defendants

EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY, in his official capacity; and the TEXAS ORGANIZING PROJECT EDUCATION FUND
Plaintiffs
V.
STATE OF TEXAS; GOVERNOR GREG ABBOTT; ATTORNEY GENERAL KEN PAXTON; and DIRECTOR STEVE MCCRAW, TEXAS DEPARTMENT OF PUBLIC SAFETY in their official capacities
Defendants

Civil Action No. 5:17-CV-459-OG [Consolidated Case]

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 2 of 70

CITY OF SAN ANTONIO, TEXAS; REY A. SALDANA, in his official capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO; and WORKERS DEFENSE PROJECT
Plaintiffs
V.
STATE OF TEXAS; GREG ABBOTT', in his official capacity as Governor of the State of Texas; KEN PAXTON, in his official capacity as Attorney General of Texas
Defendants

Civil Action No. 5:17-CV-489-OG [Consolidated Case]

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION BY CITY OF SAN ANTONIO, TEXAS, REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA
UNION DEL PUEBLO ENTERO, AND WORKERS DEFENSE PROJECT
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND Thomas A. Saenz (CA Bar No. 159430 )* Nina Perales (TX Bar No. 24005046) Marisa Bono (TX Bar No. 24052874) Celina Moreno (TX Bar No. 24074754) Andrea Senteno (NY Bar No. 5285341)* Tanya G. Pellegrini (CA Bar No. 285 186)* 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 *pending Pro Hac Vice Admission
Attorneys for Plaintiffs CITY OF SAN ANTONIO, REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO AND WORKERS DEFENSE PROJECT

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 3 of 70
CITY OF SAN ANTONIO Deborah Lynne Klein Deputy City Attorney, Litigation
SBN: 11556750
Office of the City Attorney Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205
(210)207-8940/(210)207-4357
Attorney for Plaintiff CITY OF SAN ANTONIO

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 4 of 70
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 5 of 70 II. Plaintiffs Will Suffer hreparable Harm if an Injunction Is Not Granted...............51 A. Plaintiff San Antonio ................................................................................. 53 B. Plaintiff San Antonio City Councilmember Rey Saldafla .......................... 54 C. Plaintiff TACHE ........................................................................................54 D. Plaintiffs WDP and LUPE .........................................................................55 III. Plaintiffs' Threatened Injuries Outweigh Any Alleged Injuries to the State......... 55 IV. A Preliminary Injunction Would Serve the Public Interest ................................... 56
CONCLUSION .............................................................................................................................. 57
11

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TABLE OF AUTHORITIES
Page(s)
Cases
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) .................................................................................................................
Arizona v. Johnson, 555 U.S. 323 (2009) ................................................................................................................. 32
Arizona v. United States, 567 U.S. 387 (2012) ......................................................................................................... passim
Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289 (1979) ................................................................................................................. 60 Boddie v. Connecticut,
401 U.S. 371 (1971) ................................................................................................................. 48 Brandenburg v. Ohio,
395 U.S. 444 (1969) ................................................................................................................. 28 Brown v. Entm't Merchs. Ass'n,
564 U.S. 786 (2011) ................................................................................................................. 27 Carrollton-Far,ners Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist.,
826 S.W.2d 489 (Tex. 1992) .................................................................................................... 29 Cervantez v. Whifield,
776 F.2d 556 (5th Cir. 1985) ................................................................................................... 33 Chalk v. United States Dist. Ct. Cent. Dist. of Cal..,
840 F.2d 701 (9th Cir. 1988) ................................................................................................... 61
City of Chicago v. Morales, 527 U.S. 41(1999) ................................................................................................................... 51
Crosby v. Nat'l Foreign Trade Council,
530 U.S. 363 (2000) ........................................................................................................... 40, 41 Cruz v. Abbott,
177 F. Supp. 3d 992 (W.D. Tex. 2016), rev'd in part, 849 F.3d 594(5th Cir.
2017)

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 7 of 70

DeLeon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014), aff'd sub nom. DeLeon v. Abbott, 791
F.3d 619 (5th Cir. 2015) .......................................................................................................... 57

Devenpeck v. Alford, 543 U.S. 146 (2004) ........................................................................................................... 32, 34

Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................................................. 60

Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983) ................................................................................................................. 54

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ............................................................................................................... 7

Foucha v. Louisiana, 504 U.S. 71(1992) ....................................................................................................... 48, 50, 54

Ga. Latino All, for Human Rights v. Governor of Ga.,
691 F.3d 1250 (11th Cir. 2012) ......................................................................................... 34, 58

Gen. Motors Corp. v. Romein,

503 U.S. 181 (1992) ..............................................................................

54

Graham v. Richardson, 403 U.S. 365 (1971)

42,50

Greyhound Lines, Inc. v. City of New Orleans,

29 F. Supp. 2d 339 (E.D. La. 1998) ......................................................

58

Hernandez v. Texas,

347 U.S. 475 (1954)

43

Hines v. Davidowitz, 312 U.S. 52 (1941) ................................................................................................................... 38

Hunter v. Erickson, 393 U.S. 385 (1969) ................................................................................................................. 46

Illinois v. Caballes, 543 U.S. 405 (2005) ................................................................................................................. 32

Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) 30 (en banc) ...................................................................................

Kolender v. Lawson, 461 U.S. 352 (1983) ........................................................................................................... 48, 51

iv

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 8 of 70
LULACv. Perry, 548 U.S. 399 (2006) ................................................................................................................. 43
Mathews v. Eldridge, 424 U.s. 319 (1976) ................................................................................................................. 49
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................................................................... 33
Melendres v. Arpaio, 695 F3d 990 (9th Cir. 2012) .................................................................................................... 62
Melendres v. Arpaio,
989 F. Supp. 2d 822 (D. Ariz. 2013) ................................................................................. 43,45
Mercado v. Dallas County, No. 3:15-CV-3481-D, 2017 WL 169102(N.D. Tex. Jan.17, 2017) ....................................... 33
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) ..................................................................................................... 57
Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015) .................................................................................................... 32
Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ................................................................................................................. 59
N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) ..................................................................................................... 62
Nat'l Fed'n of Indep. Bus. v. Perez, No. 5:16-CV-00066-C, 2016 WL 3766121 (N.D. Tex. June 27, 2016) .......................... passim
Perez v. Abbott, ---F. Supp. 3d---, No. SA-11-CV-360, 2017 WL 1450121 (W.D. Tex. Apr. 20, 2017

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 9 of 70
Santos v. Frederick Cly. Bd. of Comm 'rs, 725 F.3d 451 (4th Cir. 2013) ............................................................................................. 33, 34
Santoyo v. United States, No. 5:16-CV-855-OLG, slip op. (W.D. Tex. June 5, 2017) .................................. 33, 34, 49, 50
Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014) ............................................................................................................. 46
Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016) ....................................................................................... 29, 30, 31
Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.,
119 F.3d 393 (6th Cir. 1997) ................................................................................................... 62
Terry v. Ohio, 392 U.S. 1(1968) ..................................................................................................................... 32
Tex. Midstream Gas Servs., LLC v. City ofGrand Prairie,
608 F.3d 200 (5th Cir. 2010) ............................................................................................. 25, 57
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff'd by an equally divided court, 136 S. Ct. 2271 (2016) .............................................................................................................................. 25
Trans World Airlines, Inc. v. Mattox,
897 F.2d 773 (5th Cir. 1990), abrogated on other grounds by Heimann v. Nat'l
Elevator Indus. Pension Fund, 187 F.3d 493 (5th Cir. 1999) ..................................... 25, 58, 62 US. Trust Co. of N.Y v. New Jersey,
431 U.S. 1(1977) ............................................................................................................... 54, 56
United States v. Alabama, 691 F.3d 1269(11th Cir. 2012) ............................................................................................... 62
United States v. Escalante, 239 F.3d 678 (5th Cir. 2001) ................................................................................................... 51
United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ................................................................................................... 58
United States v. Stevens, 559 U.S. 460 (2010) ................................................................................................................. 29
United States v. Williams, 553 U.S. 285 (2008) ................................................................................................................. 28
vi

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 10 of 70
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981) ................................................................................................................. 24
Valle del Sol, Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ..................................................................................... 60, 61, 62
Veasey v. Abbott, ---F. Supp. 3d---, No. 13-CV-193 (S.D. Tex. Apr. 10, 2017) .................................................. 43
Viii. ofArlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ........................................................................................................... 42, 44
Villas at Parkside Partners v. City of Farmers Branch, Tex.,
726 F.3d 524 (5th Cir. 2013) ............................................................................................... 5, 40 VRC LLC v. City of Dallas,
460 F.3d 607 (5th Cir. 2006) ................................................................................................... 58
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ........................................................................................................... 45, 46
Wenner v. Tex. Lottery Comm 'n, 123 F.3d 321 (5th Cir. 1997) ................................................................................................... 24
Winter v. Nat. Res. Def Council, Inc., 555 U.s. 7 (2008) .....................................................................................................................61
Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ................................................................................................... 62
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................................................................................................................41
Zinermon v. Burch, 494 U.S. 113 (1990) ................................................................................................................. 49
Statutes 8 U.S.C. § 1357 .................................................................................................................. 34, 36, 37 8 U.S.C. § 1373 ........................................................................................................................ 37, 41 52 U.S.C. § 10301 .......................................................................................................................... 47 Texas Edu. Code § 61.003 and 130.001 ................................................................................ 12, 55
6 U. Pa. J. Const. L. 1084, 1104-05 (2004) ..................................................................................... 6
Tex. Election Code § 202.002 ........................................................................................................ 47
vii

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 11 of 70

752.051.29, Tex.Gov'tCode §

31, 55

Tex. Gov't Code § 752.053 ................................................................................ 8, 10, 26, 44, 55, 56

Tex. Gov't Code § 752.0565 .......................................................................................................... 10

Tex. Gov't Code § 772.0073 .......................................................................................................... 34

Tex. Penal Code § 20.05 ................................................................................................................ 52 Tex. Penall Code § 39.07 ...................................................................................................... 9, 34, 44 TexasPenal Code § 12.21 ................................................................................................................ 9
Other Authorities

8 C.F.R. § 287.7 ............................................................................................................................. 37 85thLeg., R.S. 90 (2017) ............................................................................................................... 16
85thLeg.,R.S.208(2017) ............................................................................................................. 17 85thLeg., R.S. 582 (2017) ............................................................................................................. 18 85thLeg., R.S. 1616 (2017) ........................................................................................................... 23 85thLeg.,R.S. 1732 (2017) ........................................................................................................... 23 85thLeg., R.S. 1803 (2017) ........................................................................................................... 19
85th Leg., R.S. 1849-195 1 (2017) ........................................................................................... 19, 22 85th Leg., R.S. 1862-1863 (2017) ................................................................................................. 20 85thLeg., R.S. 2645 (2017) ........................................................................................................... 23 85th Leg., R.S. (Apr. 26, 2017) ................................................................................... 19, 20, 21, 22 85thLeg., R.S. (Feb. 2, 2017) ........................................................................................................ 17 85thLeg., R.S. (Feb. 7, 2017) ........................................................................................................ 18 85thLeg.,R.S. (Mar. 15, 2017) ..................................................................................................... 18 U.S. Const. amend. IV ................................................................................................................... 32 U.S. Const. amend. XIV, § 1 ......................................................................................................... 41 U.S. Const. art. I, § 8, ci. 4 ............................................................................................................... 5

viii

213554 Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 12 of 70
U.S. Const. art. I, § 10, ci. U.S. Const. art. VI, ci.
lx

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MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION BY CITY OF SAN ANTONIO, TEXAS, REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA
UNION DEL PUEBLO ENTERO, AND WORKERS DEFENSE PROJECT
INTRODUCTION

Plaintiffs City of San Antonio, Texas, Rey A. Saldafla, Texas Association of Chicanos in

Higher Education, La Union del Pueblo Entero, and Workers Defense Project ("San Antonio

Plaintiffs" or "Plaintiffs") respectfully move for a preliminary injunction enjoining Defendants

("the State") from enforcing Texas Senate Bill 4 ("SB 4"). SB 4 violates the First, Fourth, and

Fourteenth Amendments of the U.S. Constitution, the Supremacy Clause and the Contracts

Clause of the U.S. Constitution, and Section 2 of the Voting Rights Act of 1965.

Plaintiffs are likely to prevail on the merits as to all of their constitutional and statutory

claims:
.

First Amendment Claim: SB 4 outlaws speech in favor of policies that might

prohibit or materially limit the enforcement of immigration laws. This kind of viewpoint-based

prohibition renders SB 4 facially unconstitutional. Moreover, even if the Court assumes

arguendo that SB 4 has some constitutional applications, it is so vastly overbroad that it must be

struck down. The law would govern the speech of community college professors and many other

government employees far removed from the enforcement of law. SB 4's vast reach strikes at

the core First Amendment protections that are cherished in a free society.

Fourth Amendment Claim: SB 4 compels compliance with all inmigration

detainer requests and prohibits local jurisdictions from exercising discretion as to when to

comply with such requests. Because deportation and removal proceedings are civil in nature, SB

4 thus requires local officials to detain those suspected of civil immigration violations without

probable cause. This constitutional problem is compounded by SB 4's broad definition of

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"immigration detainer request" and its imposition of criminal penalties against local officials who refuse to comply with the law's requirements. SB 4 impermissibly requires local officials to decide between detaining persons in violation of the Fourth Amendmentperhaps based on
nothing more than a telephone call from immigration authoritiesand being charged with
criminal conduct. Supremacy Clause Claim (Preemption): Congress has indicated its intent to
"occupy the field" of the enforcement of federal immigration laws, and has specifically crafted a carefully delineated scheme for the working relationship between federal and local law enforcement. SB 4 purports to override this scheme by prohibiting local law enforcement agencies from exercising the discretion vested in them by federal law and by making individual local law enforcement agents responsible for enforcing federal law beyond the contours, and without the training or supervision, envisioned by the federal scheme. As a result, SB 4 is barred under the doctrines of field and/or conflict preemption.
Equal Protection Claim under the Fourteenth Amendment: SB 4 was enacted with discriminatory intent in an effort to target Latinos and non-citizens. This alone is reason to strike down the law. Moreover, if implemented, SB 4 will disparately impact non-citizens by effectively stripping them of constitutional protections under the Fourth Amendment and requiring local officials to hold them without probable cause. SB 4 also encourages law enforcement officials to target citizens and non-citizens on the basis of their race and prohibits local entities from taking measures to avoid unconstitutional racial targeting.
Voting Rights Act of 1965, Section 2 Claim: SB 4 prohibits Texas officials representing Latino-majority districts from advocating for common-sense immigration enforcement policies. If these officials do advocate such policies, SB 4 punishes them with
2

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removal from office. Thus, SB 4 effectively dilutes the voting strength of Latino voters by removing their chosen representatives from office for speaking on issues they were elected to address.

Due Process Claim under the Fourteenth Amendment: SB 4 violates Plaintiffs'

right to due process in three ways. First, it requires local officials to detain non-citizens,

including some of Plaintiffs' members, without first requiring those officials to make a probable

cause determination. Second, by depriving local officials of any discretion in deciding whether

to detain non-citizens suspected of immigration violations, it prohibits local officials from

convening a hearing to determine if detainer is appropriate and ensures that there will not be a

hearing "at a meaningful time and in a meaningful manner." Third, SB 4 violates Plaintiffs'

right to due process because it is so vague that Plaintiffs and Plaintiffs' members cannot

reasonably determine what it prohibits. More specifically, the law purports to prohibit local

entities from adopting, enforcing, or endorsing policies that would affect the immigration laws of

"this state or federal law." But SB 4 fails to define what it means by "endotse, enforce, or adopt"

such policies, or what state immigration law it refers to.

.

Contracts Clause Claim: Finally, SB 4 impairs the contracts between institutions

of higher learning and their students and professors. By requiring these institutions' police

departments to detain non-citizen students without probable cause, and imposing draconian fines

on those who utter forbidden views, SB 4 ensures that students will not feel safe to attend, and

professors will not feel safe to teach. Unless the State is enjoined from enforcing SB 4, it is a

certainty that non-citizen studentsand even citizen students who fear unconstitutional

targetingwill not attend, and that professors will not speak freely.

3

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Not only are Plaintiffs likely to prevail on the merits of all of these claims, but they will suffer irreparable injury if the State is not enjoined from enforcing SB 4. It is well-established that both a constitutional violation, and the enforcement of a preempted law, are irreparable injuries sufficient to support a preliminary injunction. Both SB 4 on its face, and the declarations attached to this memorandum, evidence the likelihood of irreparable injury.
Plaintiffs' injuries outweigh any purported injury the State might put forward. Plaintiffs' simply ask the Court to maintain the status quo pending resolution of Plaintiffs' claims. And the State cannot claim any injury because it has no right to enforce an unconstitutional law.
Finally, granting Plaintiffs' request for a preliminary injunction would serve the public interest. Enjoining the violation of constitutional rights is always in the public interest, as is enjoining the enforcement of a state law that is preempted under the Supremacy Clause.
FACTUAL BACKGROUND I. Framework for the Interaction of Federal and Local Law Enforcement Under
Federal Immigration Law The U.S. Constitution gives the federal government supreme power to "establish a uniform rule of naturalization."1 "Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders,"2 and Congress has intended to occupy some,3 if not all of the field of immigration law and enforcement.4

1 U.S. Const. art. I, § 8, ci. 4.

2

v. United States, 567 U.S. 387, 401-02 (2012).

See id. at 401-03 (holding that the federal government occupies the entire field of non-citizen registration).

4See Gabriel J. Chin & Marc L. Miller, The Unconstitutionality of State Regulation of
Immigration Through Criminal Law, 61 Duke L.J. 251, 265 (2011) ("The long history of federal
authority over naturalization and immigration, along with the history of federal authority over

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 17 of 70
The Immigration and Naturalization Act ("INA") includes a comprehensive scheme for immigration enforcement that reflects Congress's considered judgement about the role of local authorities in achieving its aims. For example, Section 1357 of the INA addresses the interrogation, search and arrest of non-citizens or those believed to be non-citizens. 8 U.S.C. § 1357. Although it focuses on the power of federal officials, it also addresses interaction between federal immigration officers and officers of states or their political subdivisions. In particular, Section 1357(g) outlines a program whereby qualified officers of states or their political subdivisions may carry out the functions of "investigation, apprehension or detention" of noncitizens after receiving specialized training. 8 USC § 1357(g)(1)-(10). That may occur, however, only under certain conditions, including a written agreement between a State or its political subdivisions, training and certification for the state or local officers and employees, and direction and supervision by the Attorney General. Id. Even under Section 13 57(g), state officers may only carry out enforcement functions to the extent consistent with "local law." Id.
Numerous other provisions show Congress's careful attention to regulating local participation in immigration enforcement.5 In general, Congress has chosen not to compel local law enforcement to assist or participate with federal immigration authorities in the enforcement of federal immigration law.
foreign affairs provides a strong basis for a finding of field or conflict preemption with regard to the regulation of immigration." (footnote omitted)).
See, e.g., 8 U.S.C. § 1357(d) (providing for direct interaction with a "local law enforcement official"); id. (enforcement of detainers by local officials is voluntary); id. § 1101(1 )( 1 5)(T)(U) (visas for otherwise-deportable victims and witnesses after local certification); id. § 11 03(a)( 10) § 1226(d)(l)(B) (requiring a federal "liaison" to "local law enforcement"); id. § l522(c)(l)(C) (providing for "consultation with local governments").
5

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One exception is Section 1373, which provides that local government entities "may not prohibit" officials from sending, receiving, maintaining or exchanging information about any person's immigration status. 8 U.S.C. § 1373. But that simply involves the exchange of information, as opposed to having state or local officials affirmatively and independently investigate immigration status or having them detain people on behalf of federal immigration authorities. In particular, while ICE may issue "Detainer Requests," the decision to comply is left to the local jurisdiction; nothing in the statutory scheme or implementing regulations compels States or law authorities to follow those requests.6
That Congress would be so careful in enlisting local law enforcement and leave local entities such discretion is unsurprising. Immigration law is complex, and scholars have observed that coopting local officials into immigration enforcement activities gives rise to significant risks of racial profiling, discrimination, and constitutional rights violations, and it has raised significant objections from law enforcement officials themselves.7 II. Plaintiffs Have Operated Under the Federal Framework to Balance the Interests of
Immigration Enforcement with the Interests of Preserving Safety and Trust Within Their Communities, and SB 4 Destroys that Balance
A. The City of San Antonio Plaintiff San Antonio is the seat of government for the public officials who are
6 Immigration Detainer Notice of Action Form, ICE.gov, https://www.ice. gov/sites/defauitlfiles/documents/Documentl2OI 7/I-247A.idf.
"See, e.g., Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1104-05 (2004) (examining data regarding enlistment of state and local officials in enforcement of immigration law after 9/11 and concluding that "[t]he evidence that even federal immigration officials, trained in the arcania of immigration law and (presumably) the risks of improper reliance on profiling, frequently resorted to stereotypes and discrimination, confirms that the move to enlist or conscript state and local police in ordinary immigration enforcement is fraught with risk").

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 19 of 70
responsible for representing all people within their district, citizens and noncitizens alike.8 San Antonio sets policies and regulations for the city, and administers health and social service programs for its residents, including those residents that are immigrants. San Antonio is also responsible for law enforcement within its jurisdiction.
1. San Antonio Police Department's Community Trust Policy The mission of the San Antonio Police Department ("SAPD") is to create a safe environment and reduce crime. See generally Ex. 3 (McManus Decl.). San Antonio does not consider itself a "sanctuary city." The SAPD and Police Chief William McManus have a longstanding practice of cooperating with federal law enforcement, including in the execution of federal warrants, honoring appropriate immigration detainers requests, and allowing ICE officials into the city jail where detained individuals are processed. Id.; see also Ex. 4 (Detention Center Deci.). Consistent with federal law, the scope of cooperation with ICE is something that occurs at the Chief's discretion, in light of local law enforcement policy, objectives, and resource constraints. Id. SAPD does not have the funding or resources to undertake enforcement of immigration laws. Id. SAPD officers are neither trained nor adequately qualified to enforce the very complex federal immigration laws. Id. Moreover, building trust with the whole San Antonio community is integral to SAPD's capacity to investigate and prevent crime. When local residents are afraid of being reported, detained, or deported by local law enforcement, they are less likely to report crimes against them and are afraid to cooperate with police in criminal investigations. Id. Criminal activity resulting
8 Cf Evenwel v. Abbott, 136 5. Ct. 1120, 1127-29, 1132-33 (2016) (confirming constitutional and democratic principle of "representational equality" that "representatives serve all residents, not just those eligible or registered to vote").

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 20 of 70
from fear of police in immigrant communities affects the entire community, rendering police in San Antonio less effective and causing harm to the safety of its residents. Id.
In light of these various concerns, San Antonio has, for example, a policy (Procedure 618 Racial/Bias Profiling/Immigration Policy) that instructs SAPD officers neither to question the immigration status of those arrested nor detain individuals solely on the basis of their immigration status. id. & Ex 3-A. It also prohibits officers from making decisions regarding immigration status and deportability. Id. These restrictions are consistent with Procedure 618's other provisions prohibiting racial/bias profiling in any aspect of law enforcement-initiated action. Id. SAPD views Procedure 618 as critical to preventing discrimination and avoiding legal liability while best protecting public safety and building public trust.
Under SB 4, the SAPD cannot "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws." §752.053 (a). SB 4 also provides that SAPD cannot maintain a policy that would "prohibit or materially limit" individual officers from "inquiring into {J immigration status," "assisting or cooperating with a federal immigration officer," or "providing enforcement assistance" to a federal officer. §752.053 (b). SB 4 threatens to undermine public safety and take away the ability of San Antonio to implement policies that best protect public safety and protect the City and SAPD officers from legal liability. See generally Ex. 3 (McManus Decl.).
2. San Antonio's Magistrate and Detention Center The City of San Antonio, in conjunction with Bexar County, Texas, operates the Magistrate and Detention Center ("Detention Center"), which is where persons arrested by
Under Procedure 618, SAPD Police Officers are directed not to use race, national origin, citizenship, religion, ethnicity, age, gender, sexual orientation, or physical or mental disability for a law enforcement-initiated action, except to determine whether a person matches a specific description of a particular suspect. Id. at Ex. 3-A.

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 21 of 70
SAPD are taken in order to appear before a Magistrate. Id. Once persons are taken before the magistrate, they are given the opportunity to bond out from the Detention Center within a reasonable amount of time without being transferred to the Bexar County Adult Detention Center. Id.
Federal immigration officers are permitted to enter the Detention Center and to review the roster of persons being detained there. Id. Immigration officials may also issue detainer requests to the Detention Center. Id. However, the Detention Center currently retains the discretion about whether to comply with an ICE detainer due to potential Fourth Amendment liability, such as after bond posted, charges are dropped or when a habeas petition has been filed.
SB 4 makes the failure of a jail official to honor any detainer request a Class A misdemeanor, even when doing so would, in the view of the Detention Center officials, violate the Fourth Amendment. Tex. Penal Code §39.07. A misdemeanor exposes employees of the Detention Center to arrest, a jail term of up to one year and a fine of up to $4,000. Texas Penal Code § 12.21. Furthermore, SB 4 exposes the City, its Detention Center and employees to penalties under Section 752.056, and officials could face removal from elected or appointed office. Tex. Gov't Code §752.0565.
SB 4 except compliance with ICE detainer requests only upon receiving "proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States." See SB 4 at Article 2, Section 2.01. This is inconsistent with the duties of employees of the Detention Center and it forces these employees to make immigration status determinations that they are neither qualified nor authorized by federal law to make.
B. City Councilmember Rey Saldaña
Rey Saldaña is a San Antonio City Councilmember for District 4. Councilmember

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 22 of 70
Saldaña was elected by the citizens of District 4 to advocate on their behalf. He also views his role as representing noncitizens, many of whom are family members of citizens. As discussed, Section 752.053(a)(1) makes it unlawful to "endorse a policy" that "prohibits or materially limits the enforcement of immigration laws," and Section 752.0565 allows for the removal of elected officials for violating Section 752.053. Councilmember Saldafla fears that this undefined and vague provision could encompass his political speech, including speaking publicly against SB 4 itself and current federal immigration enforcement policies, and endorsing city ordinances and internal policies that would limit SB 4.
C. TACHE TACHE is a professional organization committed to the improvement of educational and employment opportunities for Chicanos in higher education. TACHE promotes educational advocacy and networking for the purpose of securing changes in laws and policies detrimental to its constituencies. Id. TACHE' s members include administrators, counselors, professors, staff, and students at four-year and community college campuses, as well as over thirty institutional
members, including community colleges and universities throughout Texas. Id. at ¶ 5. When an
enforcement policy is detrimental to college faculty, staff, or students or threatens to increase
inequities in higher education, TACHE's members speak out. Id. at ¶ 8.
TACHE and its members support policies that create safe spaces on Texas college campuses from racial profiling, immigration questioning, and detention by campus police. Ex. 6
(Harmon Decl.) ¶ 14. For example, Alamo Colleges District ("ACD"), a founding member of TACHE, adopted a Resolution of Support for the Educational Success of Alamo Colleges District Undocumented Student DREAMers. Id. at ¶ 18 & Ex. 6-B. The Resolution recognizes
the value of DREAMers to their educational institutions and to the State of Texas and states that
10

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 23 of 70
the "Alamo Colleges District shall oppose any state or federal legislation that would be
detrimental to the educational success of undocumented student DREAMers." Id. at ¶ 18.
TACHE and its members appreciate the importance of these policies, which promote campus safety and build trust with the students. Tens of thousands of undocumented students attend community colleges in Texas under a provision of state law that allows them to pay instate tuition. Ex. 6 (Harmon Decl.) ¶ 21. Creating a safe space free from racial profiling and
fear of immigration questioning is necessary to recruit qualified students. Id. ¶ 22. Absent such
trust, the problem of unreported sexual assaults would likely increase because victims will fear being questioned about their immigration status if they report crimes to campus police, and perpetrators may threaten to report undocumented victims to campus police to prevent them from seeking help in situations of crime, bullying, and abuse. Id. at ¶ 26-JI 27. Students may also fear
that campus police may become involved. Id. at ¶ 28.
SB 4 applies to the state's 50 community college districts as well as the campus police departments of Texas's "private or independent institution[s] of higher education," and "any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education." Id. at ¶ 6, attach. A. See SB 4 at 1 and Texas Edu. Code § 61.003 and 130.001 et seq.10 SB 4's "local entity" definition is broad enough to sweep the governing body, officers and employees of community college districts into its restrictions on speech and policy-making, including policies guiding and supervising campus police officers. Ex. 11 (Alderete Deci.) ¶1 7-8. Officials elected to represent TACHE member institutions could be forcibly removed from office for endorsing guidance. Id.
10 (Ex. 6 (Harmon Decl.); see also Ex. 6-A, Map of Texas Community College Taxing Districts).
11

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 24 of 70
SB 4 would prohibit colleges from adopting policies they believe are necessary to keep their campuses safe and maintain a proper educational environment for their students. Ex. 11 (Alderete Deci.) 91 8. TACHE members believe that the prohibition on "endorsing" any policy that limits the enforcement of immigration law will chill, or be used to suppress, the academic
freedom and political speech of its members. Id. ¶ 10-li. TACHE members also fears that SB 4
will deter Texas institutions of higher education from hiring qualified teachers who would be critical of federal or state immigration enforcement, or will deter qualified teachers from joining
State institutions. Id. ¶ 12-14. D. LUPE and WDP
LUPE is a community union that provides social services and English classes and helps communities organize to advocate for better living conditions. WDP is a membership-based organization that works to enable low-income workers to achieve fair employment through education, direct services, and strategic partnerships. Most of LUPE' s and WDP' s members are Latino and many are immigrants who are not authorized to be present in the United States. Ex. 8
(Garza Deci.) ¶ 3; Ex. 7 (Valdez-Cox Deci.) ¶ 5.
LUPE has worked to build trust between its members and law enforcement officials and to strategize on ways to lower crime. For the past ten years, LUPE has devoted resources to establishing a community of trust between LUPE members and the police. Ex. 7 (Valdez-Cox
Decl.) ¶ 6. The passage of SB 4 has eroded that trust and LUPE members now fear that local police are working as immigration officers. Id. at ¶ 7. Many LUPE members have indicated that if they are victims of crime, they will no longer report those crimes to the police because of fear of immigration consequences. Id. WDP members are likewise less willing to report crimes or
ask law enforcement for assistance, because they fear police officers will inquire about their
12

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 25 of 70
immigration status. Ex. 8 (Garza Deci.) ¶ 13. They also fear that local law enforcement will question and detain them because they look Latino. Id. at ¶ 12.
SB 4 has also caused LUPE and WDP members to fear going out in public to conduct their daily activities, such as taking their children to school, grocery shopping, and visiting their friends, because of fear of being detained and questioned about their immigration status. Ex. 7
(Valdez-Cox Decl.) ¶ 9; Ex. 8 (Garza Dec!.) at ¶ 6. Many LUPE and WDP members have also
stopped seeking health care and other social services due to fear of interactions with law
enforcement. Ex. 7 (Valdez-Cox Decl.) ¶ 9; Ex. 8 (Garza Decl.) at ¶ 6. Instead, they limit their activities to what they feel are safe spaces, such as work and church. Id. at ¶ 7. SB 4 has also
negatively affected the children of WDP and LUPE members causing them fear, anxiety and loss of sleep because they are afraid that their families will be torn apart as a result of the law. Ex. 7
(Valdez-Cox Deci.) at 10; Ex. 8 (Garza Decl.) ¶ 8.
As a result of the fear caused by SB 4, LUPE has seen a decrease in participation by its
members. Ex. 7 (Valdez-Cox Decl.) ¶ 11. Many members have said that they will not participate
in marches or protests due to fear of repercussions for their advocacy. Id. The loss of membership participation additionally affects LUPE in its ability to receive grants that are based
on membership participation and to provide crucial services to its vulnerable members. Id. at ¶
12.
III. SB 4's Legislative History Reveals How the State Disregarded the Federal/State Balance out of Fear and Animus"
The proponents of SB 4 would have people believe that they acted in response to "sanctuary jurisdications" openly flouting federal law and allowing dangerous criminals on the street. That is a fiction. An estimated 1.65 million undocumented immigrants live in Texas,
See generally Ex. 13 (Romero Decl.) & Ex. 13 (Moody Decl.).
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Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 26 of 70
comprising about six percent of the state's total population.'2 These immigrants are no more, and often less, likely to commit crimes than the U.S.-born population. Study after study has also shown that immigrants, including undocumented immigrants, provide a net benefit to the Texas economy. 13 See generally, Ex. 17 (Nixon Deci.), Ex. 14 (Johnson Dee!.) and Ex. 15 (Barrios Dee!.). In any event, as explained above, local entities have been doing exactly what they are supposed to be doing under the federal scheme, which recognizes and respects their goals of maintaining safety and the interests of their communities. Not only is the purported purpose of SB 4 a fiction, it is one built on scapegoating and animus.
Texas lawmakers have consistently characterized undocumented immigrants as "dangerous criminals," both before and during the debate on SB 4. In 2006, future Lieutenant Governor Dan Patrick, demonized undocumented immigrants, telling his supporters: "The number one problem we are facing is the silent invasion of the border. We are being overrun. It is imperiling our safety."4 In 2015, in response to a decision by Dallas County Sheriff Lupe Valdez to honor ICE detainers on a case-by-case basis, as authorized by federal law, Governor Abbott wrote: "Your refusal to fully participate in a federal law enforcement program intended to keep dangerous criminals off the streets leaves the State no choice but to take whatever actions
12 (Compl. ¶ 83); see also Pew Research Center, U.S. Unauthorized Immigration Population
Estimates, Nov. 3, 2016, https://goo.g!/HaNFhO.
13(Compl ¶ 84); see also CAROLE KEETON Smyiioiu., OFFICE OF THE COMPTROLLER,
UNDOCUMENTED IMMIGRANTS IN TEXAS: A FINANCIAL ANALYSIS OF THE IMPACT TO THE STATE BUDGET AND ECONOMY (2006), http://www.lrl.state.tx.us/scanned/SIRSL/C2600.8_UN2U_2006.pdf (last visited May 31, 2017); (Compl. ¶ 85); The Perryman Group, The Economic Benefits of the Texas Undocumented Workforce, https ://www.perrymangroup.com/wp-contentluploads/Perryman-UndocumentedWorkforce14EX 1-B (Salmon Decl.); Paul Sweeney, Can Houston's King of Right-wing Talk Radio Bust into the Texas Senate?, Tex. Observer, Feb. 24, 2006.
14

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 27 of 70
are necessary to protect our fellow Texans."5 In January 2017, Travis County Sheriff Sally Hernandez announced that she would honor ICE detainers only when a suspect was booked on charges for the most serious crimes, including capital murder, aggravated sexual assault, and "continuous smuggling of persons." The following month, Governor Abbott cut approximately $1.5 million in state grant funds to Travis County. At that time, Governor Abbott stated: "We are working on laws that will, one, ban sanctuary cities, remove from office any office holder who promotes sanctuary cities and impose criminal penalties[,] as well as financial penalties."16 SB 4 followed shortly thereafter.
Senator Charles Perry introduced SB 4 to the Senate on January 24, 2017.17 On January 31, during his State of the State address, Governor Abbott declared "anti-sanctuary city" legislation to be one of four emergency items.18 The Governor's action not only elevated this already high profile issue, but also altered the applicable legislative rules to allow voting on SB 4 within the first 60 days of session, which otherwise would be prohibited.
On February 2, the Senate Affairs Committee heard testimony on SB 419 Over 1000 people registered against, and 332 people testified against, the bill during the 16-hour hearing that started at 8:33 a.m. and lasted until 12.51 a.m. the next day. Only 21 people registered in
15 (Compl. ¶ 56). See
https://gov.texas.gov/uploads/files/press/DailasCounty FederalimmigrationDetainer 10262015.
cif
16 (Comp. ¶ 58); see also Abbott to Seek Laws to Remove Sheriff After ICE Detainer Policy
Announcement, KVUE.COM, Jan. 25, 2017, https://goo.glIIRWOIt. 17 See S.J. of Tex., 85th Leg., R.S. 90 (2017).
18 (Compi. ¶ 59) Governor Abbott Delivers State of the Address (Jan. 31, 2017),
https://gov.texas.gov/news/poWgovernor_abbott delivers_state_of the_state address. 19 (Comp. ¶ 68).
15

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 28 of 70
support.2° At the beginning of the hearing, Senator Joan Huffman, the Committee chair, assured the public that written testimony would be considered by the Committee.21 However, at the end
of the hearing, the Committee swiftly votedwithout reviewing the 97 written testimonies
submitted that daythat SB 4 be reported back to the Senate with the recommendation that it
pass.22
The full Senate debated SB 4 on February 7, 2017, only two business days after the committee hearing.23 During the Senate floor debate, the bill's author Sen. Perry falsely claimed: "[M]y bill does not impact those that are here illegal [sic], undocumented that are providing work and food for their family as long as they don't commit a crime that they're hauled in where a detainer request occurs. That's all it applies to is the guys that break the law."24 The Senate voted 20-11 to pass the bill.25 No legislator of color voted for the bill, and only 3 of 33 amendments to SB 4 offered in the Senate by Latino senators were adopted.26
20 See Ex. 1-C. (Salmon Decl.), Tex. S. Conmi. on State Affairs Minutes, 85th Leg., R.S. (Feb. 2, 2017); Ex. 1-D (Salmon Decl.), Tex. S. Comm. on Senate Affairs Witness List, 85th Leg., R.S. (Feb. 2,2017). 21 See Senate Comm. on State Affairs Pub. Hearing, 85th Leg., R.S. (Feb 2, 2017, http://ticsenate.granicus.cornlMediaPlayer.php?clip id= 11651. 22See Ex. 1-C (Salmon Decl.), Tex. S. Comm. on State Affairs Minutes 3, 85th Leg., R.S. (Feb. 2, 2017). 23 See S.J. of Tex., 85th Leg., R.S. 208 (2017). Relevant excerpts from the Senate and House Journals are accessible as links at http://www.capitol.state.tx.us/BillLookupfHistory.aspx?LegSess=85R&Bill=SB 4. 24See Debate on SB 4 on the Tex. S. Floor, 85th Leg., R.S. (Feb. 7, 2017), http://www.senate.texas.gov/av-archivep. 25 Id. at 232. 261d at 208-231.
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Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 29 of 70
SB 4 was then sent to the House, where it was referred to the House State Affairs
Committee.27 On March 15, 2017, the House State Affairs Committee heard over 10 hours of
public testimony on the bill.28 Over 465 people gathered to testify against it and only 11
registered in support.29 House State Affairs Committee Chairman Byron Cook said the next day
that he thought the bill could be consolidated to include only the provision requiring compliance
with ICE detainer requests.3°
On April 20, 2017, the House State Affairs Committee sent SB 4 to the House Calendars
Committee, which passed the bill out in less than one hour, and set SB 4 on the Emergency
Calendar to be heard on the House floor on April 26.31
The House considered SB 4 on April 26, 2017.32 When laying out the bill to the full
House, SB 4's House sponsor Rep. Charlie Geren referred to undocumented immigrants as
27 See H.J. of Tex., 85th Leg., R.S. 582 (2017). 28 See Ex. 1-E (Salmon Deci.), Tex. H. Comm. on State Affairs Corrected Minutes, 85th Leg., R.S. (Mar. 15, 2017). Several children gave powerful testimony that, if SB 4 passed, their parents could be detained and ultimately deported whenever they left the house. See Testimony on SB 4, Tex. H. Comm. on State Affairs, 85th Leg., R.S. (Mar. 15, 2017),http://tJ.chouse.granicus.co.m/MediaPIayer,jpywJç=4O&cIip iç[=J 3021, excerpts available at ps://www.youtuhe.comIwatch?v=BI07j4giY. 29 See Ex. 1-F (Salmon Deci.), Tex. H. Comm. on State Affairs Witness List, 85th Leg., R.S. (Mar. 15, 2017). 30See Ex. 1-G (Salmon Decl.), Julian Aguilar, Key Chairman Says House Will Take Its Time on "Sanctuary" Legislation, Tex. Tribune, Mar. 16, 2017. Rep. Cook stated, according to the Texas Tribune: "If you look at this on the big picture [level], all we're really needing to do, all that's really been said is that local jurisdictions need to honor federal detainer requests," he said, noting Hernandez was the only outlier. "And what the testimony indicated once again last night is that though one sheriff deviated for a short period of time, all our law enforcement agencies across the state are in fact honoring detainer requests, as they're supposed to." ' See H.J of Tex., 85th Leg., R.S. 1803 (2017); Ex. 1-H (Salmon Decl.), Tex. Leg. Online, SB 4 History, 85th Leg., R.S. (2017) (showing Committee report distributed on April 20, 2017 at 2:22 p.m., and subsequently considered by considered by the House Calendars Committee that day); Ex,. 1-I (Salmon Decl.), Tex. H. Comm. on Calendars Minutes, 85th Leg., R.S. (Apr. 20, 2017) (showing Committee met at 3:00 p.m. and adjourned at 3:09 p.m.).
17

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 30 of 70
"illegals," despite having been told by Latino legislators and advocates how offensive that term was to the immigrant community.33 Rep. Geren described the Bill as having no effect on undocumented immigrants who had not committed crimes or associated with those who had. Later, he admitted that be was unaware of any statistics regarding the propensity for criminal activity by immigrants as opposed to non-immigrants.35
During the House floor debate Rep. Matt Schaefer brought back a key provision of the Senate's version of SB 4 through an amendment.36 The provision expands the authority of police to ask a person's immigration status not only when that person is arrested but also when he or
she lawfully detained.37 The "Schaefer amendment"or what many call the "show me your papers" provisionapplies even to those detained as a result of an alleged traffic violation or
jaywalking.38 The House passed the "Schaefer amendment" 84-64, with only one Latino legislator voting in favor.39 In arguing against the Amendment, Rep. Cook, the Republican
Chairman of the House of State Affairs Committee stated the obviousSB 4 was no longer

32
See

H.J

of Tex.,

85th

Leg.,

R.S.

1849

(2017).

See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017),

Id.
Id.
36 See H.J. of Tex., 85th Leg., R.S. 1862-1863 (2017).
See id.
38
See id.
See id. at 1875-76.

ii;i

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 31 of 70
about keeping "dangerous criminals off the streets."40 Rep. Cook warned his colleagues of the true target and costs of SB 4 with the included Schaefer Amendment and concluded. "It will not benefit this state. You can pass sanctuary cities and still not do harm to a lot of really good people, so I beg you to vote against this amendment."4'
Multiple attempts to amend the "Schaefer amendment" to exempt vulnerable populations such as children, veterans, pregnant women, homeless individuals, and those in domestic violence shelters failed.42 As Rep. Diego Bernal pleaded in offering his limiting amendment
with respect to children: "I'm asking for us to ensure that the most vulnerable among us, the ones who can't defend themselves, and, honestly, for the most part, aren't responsible for their presence in this country anyway. . . that this law does not touch them. . . that law enforcement
does not have the right to ask them for their status."43 During the debate, several lawmakers warned of the inevitable profiling and harassment
SB 4 would cause immigrants and persons of color, regardless of immigration status. Rep. Hubert Vo warned: "We used to have the freedom to do and go wherever we wanted without fear of unjustified harassment from local enforcement. Now those freedoms will be taken away from individuals if SB 4 passes simply because of the way they speak and appear." Rep. Rafael Anchia warned his colleagues that SB 4 could only be considered another instance of
Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017),
excerpt available at
https://www.youtubcorn1watch?v=-udQB0vTtrY.
41
See id.
42 See id. at 1872 (Amendment 17, offered by Rep. Diego Bernal, to exempt children failed). See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017),
http://www.house.state.tx.us/video-audio/charnber/85/. See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017),
pjyyw http://www.house.state.tx.us/video-audio/charnber/851, excerpt available at outube
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Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 32 of 70
legislation that is intentionally, racially discriminatory, in light of six federal court findings of
intentional racial discrimination in other laws since 2011. Rep. Anchia stated the obviousif
SB 4 is not about ICE detainers (which over 99% or jurisdictions already complied with),46 not about dangerous criminals, not about what law enforcement says makes us safe, then the only plausible explanation to connect the dots is that SB 4 is about racism.47 Rep. Gene Wu testified that, as he walked around the chamber, he overheard "gleeful" comments, "joyous about what we're going to do to an entire population of people."48
The House departed from procedural norms by suspending the rules to skip debate on
70almost halfof the 145 pre-filed amendments.49 Ultimately, in the early morning of April
27, 2017, SB 4 passed to third reading on a 93-54 vote.50 The House passed SB 4 on third reading with a 94-53 vote later that day.5' Only three of the 36 Latino legislators voted for the
bill.52
See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017), http://www.house.state.tx.us/video-audio/chamber/85/. 46 In fact, the Bill's author in the Texas House, Rep. Geren, could not name a current Texas "sanctuary" county, city, or university. See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (Apr. 26, 2017), http://www.house.state.tx.us/video-audio/chamber/85/.
Id.
48 See Debate on SB 4 on the Tex. H. Floor, 85th Leg., R.S. (April 26, 2017), http://www.house.state.tx.us/video-audio/chamber/85/, excerpt available at https ://www.youtube.com/watch?v=h95yjY-EAt8.
See H.J. of Tex., 85th Leg., R.S. 1849-195 1 (2017); id. At 1929-30; see also Ex. 1-H (Salmon Decl.), Tex. Leg. Online, SB 4 History, 85th Leg., R.S. (2017).
50 See id. at 1951. 51 See id. at 2021. 52 See id.

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On May 3, 2017, the Senate moved to concur with the House amendments to SB 453 During floor debate on the issue, Sen. Jose Rodriguez remarked that local compliance with ICE detainers could not be the motivation for this law because all 254 counties complied with detainer requests.54 When Sen. Rodriguez voiced his concerns that SB 4 would lead to racial profiling, Sen. Perry, the Bill's sponsor, stated that racial profiling happens with or without SB 455 When Sen. John Whitmire asked Sen. Perry whether he worried about the unintended consequences of the law, Sen. Perry responded: "So, number one, you don't see me in my private time. I do have that angst, and I do hear and see that. I do feel Sen. Menendez' s pain in that sense. Can I relate? No, I haven't walked a mile in his shoes."56
The next day, May 4, 2017, both chambers signed the bill and sent it to Governor Abbott.57 Governor Abbott signed SB 4 on May 7, 2017.58 SB 4 takes effect on September 1, 2017.
The division fostered by the debate and passage of SB 4 stained the remainder of the Texas Legislative Session. On May 29, 2017, the last day of the Legislative Session, in response to chanting in the House Gallery by peaceful, mostly Latino anti-SB 4 protesters, Texas Rep. Matt Rinaldi approached and taunted several Latino lawmakers on the House floor, saying "I called ICE on all of them. fExpletiveI them. They need to deport all these illegals." Ex. 12
See S.J. of Tex., 85th Leg., R.S. 1616 (2017). 545ee Debate on SB 4 on the Tex. S. House Floor, 85th Leg., R.S.,
jt://ticsenate.granicus.corn/MediaP1aypJyiew id=42&clipjd= I 2389.
Id. 56 Id.
See id. at 1650; H.J. of Tex., 85th Leg., R.S. 2645 (2017). 58 See S.J. of Tex., 85th Leg., R.S. 1732 (2017).
See Ex. 1-A (Salmon Deci.), SB 4 § 7.02.
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(Romero Decl.) ¶ 9. Rep. Rinaldi's statement implies an assumption that all of the members in
the gallery were undocumented because of their physical appearance. When reminded by Rep. Cesar Blanco that Rep. Ririaldi himself comes from an immigrant background, Rep. Rinaldi
responded, "Yeah but my people loved this country and your people don't." Id. at ¶ 9. The
difference between those people and my family is that my family loves America." On May 31, 2017, U.S. Immigration and Customs Enforcement confirmed that Rep. Rinaldi indeed made a report to ICE on the last day of the legislative session.60 In the ensuing argument, Rep. Rinaldi threatened to "put a bullet in [the] head" of Rep. Nevarez Ex. 13 (Moody DecI.). Rep. Rinaldi' s actions sparked additional harassment of Latino legislators by members of the public. See generally Ex. 2 (Celina Moreno Deci.).
The passage of SB 4 has left local entities, officials, community groups, and their members in legal jeopardy based on both the breadth of its provisions and its draconian penalties. Plaintiffs therefore bring this motion to enjoin the law.
LEGAL STANDARD Preliminary injunctions favor the status quo and preserve the relative positions of the parties until a trial on the merits can be held. Wenner v. Tex. Lottery Comm'n, 123 F.3d 321, 326 (5th Cir. 1997); Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The decision to grant or deny a preliminary injunction is within the discretion of the trial court. See Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015), aff'd by an equally divided court, 136 S. Ct. 2271
(2016) (per curiam).
A plaintiff seeking a preliminary injunction must establish: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued,
605ee Ex. 1-J (Salmon Decl.), James Drew, ICE Now Confirms that Texas Lawmaker Did Call about Protesters Monday, Houston Chronicle, May 31, 2017.
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(3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Id.
A finding of likelihood of success on a preemption claim implies findings for the other preliminary injunction requirements. See Tex. Midstream Gas Servs., LLC v. City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010) (asserting that a finding of likelihood of express preemption fulfills the remaining preliminary injunction requirements); Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 783 (5th Cir.1990) (asserting the same and determining that all preliminary injunction requirements were satisfied upon a finding of likely express preemption), abrogated on other grounds by Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493 (5th Cir. 1999).
ARGUMENT The San Antonio Plaintiffs establish below that: (1) they are likely to prevail on the merits of their claim that SB 4 violates the Constitution and federal law; (2) they will suffer irreparable harm if an injunction is not granted; (3) their threatened injuries outweigh any alleged injuries to the State; and (4) a preliminary injunction would serve the public interest. For these reasons, Plaintiffs respectfully request that the Court enjoin Defendants from enforcing SB 4. I. Plaintiffs are Likely to Prevail on the Merits Plaintiffs are likely to prevail on their claims that SB 4 is unconstitutional because SB 4 violates the Supremacy Clause, the First, Fourth, and Fourteenth Amendments of the U.S. Constitution, the Contracts Clause, and Section 2 of the Voting Rights Act of 1965. These violations are described below. A. SB 4 Violates the First Amendment
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SB 4 is a ban on speech: Its "endorse" provision prohibits a wide variety of persons from endorsing any policy under which a local entity that "prohibits or materially limits the enforcement of immigration laws." Tex. Gov't Code § 752.053(a)(1). This ban blatantly violates the First Amendment in two ways. It constitutes viewpoint discrimination and it is unconstitutionally overbroad.
The Prohibition is Unconstitutional Viewpoint Discrimination SB 4 mandates that the members of the governing bodies of "local entities" and campus police departments, including their officers and employees, may not "endorse" any policy that "prohibits or materially limits the enforcement of immigration law." Id. This is classic viewpoint discrimination. The expression of one viewpoint is forbidden: endorsement of a particular policy. Expression of other and opposite viewpoints on the issue is allowed. This is impermissible. Under the First and Fourteenth Amendments, a state "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Reed v. Town of Gilbert, Ariz., 135 5. Ct. 2218, 2226 (2015) (quoting Police Dept. of Chi. v. Mosley, 408 U.S. 92, 95 (1972)). "Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed."
Reed, 135 5. Ct. at 2227. "Content-based lawsthose that target speech based on its communicative contentare presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests." Id. at 2226 (emphasis added).
Like the law at issue in the Supreme Court's Reed decision, the "endorse" provision of SB 4 is "content-based on its face": the statute plainly prohibits the expression of ideas. Just as plainly, the statute prohibits the expression of only certain ideas, on one side of an issue. As a
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result, the law "can stand only if [it] survive[s] strict scrutiny, 'which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Reed, 135 S. Ct. at 2231 (quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2817 (2011)). It is no easy task to show a compelling interest in this context:
The State must specifically identify an 'actual problem' in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. "It is rare that a regulation restricting speech because of its content will ever be permissible." Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 799 (2011) (quoting United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 818 (2000)). By the same token, where the government can identify only "vaguely described, speculative benefits that it believes may result" from the restriction of speech, the restrictive law does not pass muster and injunctive relief is warranted. Nat'l Fed'n of Indep. Bus. v. Perez, No. 5:16-CV-00066-C, 2016 WL 3766121, at *32 (N.D. Tex. June 27, 2016) (granting preliminary injunction after government failed to identify compelling interest). SB 4 does not advance a compelling government interest. Even assuming that those who "endorse" a policy that would "prohibit or materially limit the enforcement of immigration laws"
are advocating illegalityand it is far from clear that this is sothis would not in itself give the
state a compelling interest. More is needed: "the constitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy of. . . law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); cf United States v. Williams, 553 U.S. 285, 298-99 (2008) (upholding law because it did not prohibit "abstract advocacy of illegality," but instead, targeted illegal actions like offering to assist in violating
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child pornography laws). SB 4 is not limited to the prohibition of such incitement. Instead, it broadly prohibits expression of support for a particular policy.
This in turn reveals a second defect in SB 4. It is not narrowly tailored to achieve the State's purported interest. If the State were indeed concerned that local entities, campus police departments, or their employees would limit the enforcement of state and federal immigration law, the obvious solution would be to prohibit acts that impede the enforcement of those laws. Instead, SB 4 universally prohibits speech in support of particular policies. It prohibits such speech without regard to whether it takes place in public or private, whether uttered on-the-job or at a weekend barbeque. SB 4 is vastly overinclusive for any purported government purpose and injunctive relief is warranted on this ground. Nat'l Fed'n, 2016 WL 3766121, at *35
2. SB 4 is Unconstitutionally Overbroad Because it is anything but narrowly tailored, SB 4 suffers from the related constitutional defect of overbreadth. Among other things, the group of persons the statute targets is impermissibly broad. The statute reaches all college campus police departments and "local entities" (which are defined to include the governing bodies of cities, counties, and special districts, including community college districts) and the officers and employees of campus police departments and local entities. Tex. Gov't Code § 752.05 1(5)(B); see also Carroliton-Fariners Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 555 (Tex. 1992) (recognizing that "special district" in Texas statutes captures "junior college districts, fire
prevention districts, [and] water control districts."). SB 4 thus reachesand limitsthe speech
of individuals as far removed from the enforcement of the law as a community college professor, an engineer at a local water district office, or a janitor at a county fire house.
The application of a law limiting speech to a group as large and diverse as this raises

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serious constitutional concerns in itself. The Fifth Circuit has held that a law prohibiting protected First Amendment activities of people as various as "leaders for AA, Weight-Watchers, or other self-help groups, [or] someone who has taken graduate classes in psychology, fitness, or counseling and has written a marriage-advice colunm or parenting blog" may for that reason be struck down as overbroad. Serafine v. Branaman, 810 F.3d 354, 367 (5th Cir. 2016); see also
Nat'l Fed'n, 2016 WL 3766121, at *35 More generally, a law limiting speech is overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's
plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)).
Those authorities plainly apply here, both because of the breadth of persons and activities SB 4 reaches and because the statute provides no way to derive a straightforward, textuallybased limit to the "endorse" clause. Serafine, 810 F.3d at 369 (declining to give an unconstitutional state regulation "an additional extra-textual limiting construction in a frantic attempt to rescue it"). As shown in the declarations of San Antonio Police Chief William McManus, San Antonio Councilmember Rey A. Saldana, Alamo Colleges District Board Member Joe Alderete Jr., and TACHE President Belinda Harmon, there is a more than substantial risk here that if SB 4 goes into effect, it will chill the protected First Amendment speech of a broad swath of local entities, their officials, and their employeesincluding, to take just one example, college professors. See generally Ex. 3 (McManus Decl.), Ex. 5 (Saldana Decl.), Ex. 11 (Alderete Deci.), Ex. 6 (Harmon Deci.) ¶(J[ 10-11. Injunctive relief is warranted on this basis alone. Nat'l Fed'n, 2016 WL 3766121, at *35 (issuing injunction on the basis of overbreadth challenge, among others).6'
61 The constitutional infirmity of the "endorse" clause is not cured by virtue of the fact that its
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Finally, insofar as SB 4 may be applied to both campaign speech and academic speech, it infringes upon some of our Nation's most cherished First Amendment protections. On the subject of campaign speech, the statute specifically targets the political speech of local elected officials who are often on the campaign trial including city councilmembers, county commissioners, community college trustees, sheriffs, and district attorneys. Tex. Gov't Code §752.051(1)(5)(B)-(C). This is impermissible. The Fifth Circuit recently explained in Serafine
that political speech during a campaignsuch as a statement made on a campaign websiteis
"political speech of the highest form." 810 F.3d at 361. "Indeed, 'it can hardly be doubted that the constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office." Id. (quoting McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995)) (alteration in original). SB 4 runs directly counter to this
guarantee. As to academic speech, SB 4 also sweeps in the abstract political advocacy of community
college employees, including professors; they are also classified as "local entities." This too is impermissible. As the Supreme Court explained in Keyishian v. Board of Regents of the
targets are government employees speaking within the scope of their employment. Although some authorities have recognized special First Amendment limitations in this context, those cases arise in a context wholly different from that at issue here, in which the government is advancing its interest in regulating office conduct, as opposed to making policy. E.g., Kinney v.
Weaver, 367 F.3d 337, 358 (5th Cir. 2004) (en banc) ("In 'governmental employee' cases,...
courts must be attentive to the '[t]he government's interest in achieving its goals as effectively and efficiently as possible,' which interest 'is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer" (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion)) (alteration in original). The State is not providing for the functioning of state government offices with SB 4. It is legislating as a sovereign.

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University of the State of New York, "[ojur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S. 589, 603 (1967). SB 4's violation of these cherished First Amendment freedoms exposes its impermissible overbreadth.
SB 4 sweeps substantial amounts of protected speech into its ambitincluding even the most cherished forms of free speechand furnishes no textual tools by which its overbreadth could be remedied. Injunctive relief is warranted on this basis alone. Nat'! Fed'n, 2016 WL
3766121, at *35
B. SB 4 Violates the Fourth Amendment
The Fourth Amendment provides "[t]he right of people to be secure in their persons" and protects against "unreasonable searches and seizures" without a warrant and without probable cause. U.S. Const. amend. IV. SB 4 violates the Fourth Amendment by compelling compliance with all immigration detainer requests and prohibiting local jurisdictions from exercising discretion to decide when to comply with detainers in order to ensure compliance with the Fourth Amendment.
In order to lawfully stop an individual, an officer must have reasonable articulable suspicion "that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968) (emphasis added); see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004) ("[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." (emphasis added)). Moreover, once the reasonable suspicion or probable cause supporting the stop or arrest has expired, any additional seizure must be supported by a new reasonable suspicion or probable cause justification.
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See, e.g., Arizona v. Johnson, 555 U.S. 323, 333 (2009); Illinois v. Caballes, 543 U.S. 405, 407 (2005) ("A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission"); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015). Accordingly, detention pursuant to an ICE detainer requires either probable cause to believe that a criminal offense has been or is being committed or a warrant. Arizona, 567 U.S. at 413; Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985).
Deportation and removal proceedings are civil in nature. Arizona, 567 U.S. at 396; Mercado v. Dallas County, No. 3:15-C V-3481-D, 2017 WL 169102, at *7 (N.D. Tex. Jan. 17, 2017). Thus, "[b]ecause civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity." Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 465 (4th Cir. 2013); see also Mercado, 2017 WL 169102, at *7 (knowledge of a civil ICE detainer alone does not give state officers probable cause "to detain the plaintiffs after they were otherwise eligible for release."); Santoyo v. United States, No. 5: 16-CV-855-OLG, slip op. at 15 (W.D. Tex. June 5, 2017) (stating that a "County's assumption that probable cause must exist to detain any individual for whom it receives an ICE detainer request was unreasonable"). For these and other reasons, there can be no question but that "[d]etaining individuals solely to verify their immigration status would raise constitutional concerns." Arizona, 567 U.S. at 413.
The ability of local officials to hold detainees solely because of their immigration status is also constrained. State officers do not have the authority to enforce federal civil immigration law absent an authorizing agreement pursuant to Section 287(g) of the INA. See Melendres v.
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Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). And even immigration officers expressly authorized to enforce federal immigration laws may make a warrantless arrest only if the officer has "reason to believe" that the detainee is "likely to escape before a warrant can be obtained for his arrest." 8 U.S.C. § 1357(a)(2).
SB 4 violates the Fourth Amendment in multiple ways. First, Art. 2.25 1(a) requires that local law enforcement agencies comply with all ICE detainer requests, whether or not the agency has probable cause to continue to hold a detainee and whether or not it would otherwise be proper to release the detainee (as in cases where a detainee has posted bond and would otherwise be released from custody). ICE detainers are not warrants; they are administrative requests and typically do not provide "probable cause to believe that a criminal offense has been or is being committed." See Devenpeck, 543 U.S. at 152; Santos, 725 F.3d at 465; see also Arizona, 567 U.S. at 396 ("As a general rule, it is not a crime for a removable alien to remain present in the United States.").
SB 4's broad definition of "immigration detainer request" further compounds the
problem. That definition sweeps more broadly than formal requests under DHS Form 1-247; it also reaches informal written or even oral requests, in which the Fourth Amendment risk is
greatly heightened. Tex. Gov't Code § 772.0073. Given SB 4's universal detainer compliance
requirement, application of the statute will necessarily result in "individuals who are the subjects of ICE detainers [being] detained by [local] officials who make no assessment, and have no knowledge, regarding whether probable cause exists that those individuals have committed any crime." Santoyo, slip op. at 13.
The detainees' rights are not the only ones in jeopardy. Local officials, are too. Section 39.07 makes it a crime for a jail official to refuse to enforce an ICE detainer even if the official
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believes in good faith that the ICE detainer lacks the probable cause required by the Fourth Amendment. Because SB 4 forces law enforcement officials to choose between criminal sanctions and conduct that could constitute a Fourth Amendment violation, it virtually ensures ongoing unconstitutional conduct by a host of local actors. It is difficult to conceive of a more pernicious scheme.
C. SB 4 Violates The Supremacy Clause Under The Doctrine Of Implied Preemption
SB 4 cannot stand because it is preempted by federal immigration law. The Supremacy Clause of the United States Constitution provides that federal law "shall be the supreme Law of
the Land... any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const. art. VI, cl. 2. As a consequence, state laws must "give way to federal law" when they are either expressly or impliedly preempted by Acts of Congress. Arizona v. United States, 567 U.S. 387, 399 (2012). Implied preemption encompasses field and conflict preemption. Plaintiffs are likely to succeed in showing that SB 4 must be enjoined under both doctrines.
1. SB 4 Field Preempted Because A Comprehensive Federal Scheme Regulates The Intersection of Federal And Local Participation in Immigration Enforcement.
Plaintiffs will succeed in showing that SB 4 is field preempted. Field preemption prevents states from "regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. In such circumstances, Congressional intent to "displace state law altogether can be inferred from a framework of regulation 'so pervasive. . . that Congress left no room for the States to
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supplement it' or where there is a 'federal interest. . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Id. (alterations in original). Because the field of immigration enforcement is fully occupied by the federal government through a complex statutory framework that regulates the intersection of federal and local participation in enforcement efforts, state law on the same subject cannot stand.
The Immigration and Naturalization Act includes a comprehensive scheme for immigration enforcement that reflects considered judgement about the role of local authorities in achieving its aims. For example, Section 1357 addresses the interrogation, search and arrest of non-citizens or those believed to be non-citizens. 8 U.S.C. § 1357. Although it focuses on the power of federal officials, it also addresses interaction between federal immigration officers and officers of states or their political subdivisions. In particular, Section 1357(g) outlines a program whereby qualified officers of states and their political subdivisions may carry out the functions of "investigation, apprehension or detention" of non-citizens after receiving specialized training. 8 USC § 1 357(g)(1 )-(10). It constitutes a carefully constructed structure for cooperation with federal authorities. The elements of the structure include a written agreement between a State or its political subdivisions, training and certification for its officers and employees, and direction and supervision by the Attorney General. Id. But even under Section 1357(g), local officers may only carry out enforcement functions to the extent consistent with "local law." id.
The INA generally, and section 1357 specifically illustrates that Congress has not only occupied the field of immigration enforcement but its comprehensive framework takes into account participation at different levels of government and the need for deference to local law. SB 4 bypasses these provisions and forces local authorities to comply with all detainers and permit "assisting or cooperating" with federal authorities absent any of the structural elements of
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Section 1357(g). The result is an intrusion into the field of immigration enforcement, which the federal government has already occupied.
Numerous other provisions confirm that Congress occupies the field of immigration enforcement.62 In general, Congress has not required local cooperation with federal immigration authorities. One exception is Section 1373, which provides that local government entities "may not prohibit" officials from sending, receiving, maintaining or exchanging information about any person's immigration status. 8 U.S.C. § 1373. SB 4 replicates that provision and then includes a list of other enforcement activities that local authorities "may not prohibit," along with a set of harsh penalties to compel compliance. SB 4 also mandates compliance with detainers where the U.S. Department of Homeland Security provides that compliance is discretionary. See 8 C.F.R.
¶ 287.7(d)(3) ("The detainer is a request[.]).63That is imperinissible because the federal
government already has a "complete scheme" for immigration enforcement, which means that the no state can impose an "auxiliary or additional" regulation. Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941).
The Supreme Court has reiterated that even state laws that are "parallel to federal standards" cannot survive if the federal government already occupies the field. Arizona, 567 U.S. at 401. In Arizona v. United States, the Court considered four provisions of an Arizona law designed to "discourage and deter the unlawful entry and presence of aliens" in the state. Arizona, 567 U.S. 62 See, e.g., 8 U.S.C. § 1357(d) (providing for direct interaction with a "local law enforcement official"); id. (enforcement of detainers by local officials is voluntary); id. § 1 l01(l)(15)(T)(U) (visas for otherwise-deportable victims and witnesses after local certification); id. § 11 03(a)( 10) § 1226(d)(l)(B) (requiring a federal "liaison" to "local law enforcement"); id. § 1522(c)(l)(C) (providing for "consultation with local governments").
63 See also DHS form 247-A, available at: https://www.ice.gov/sites/defaultlfiles/documents/docurnentl20 17/1-247A.pdf
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at 393 The first provision the Court considered created a new state misdemeanor for noncitizens who fail to carry an identification card. Id. at 400. Arizona defended the provision by arguing that it merely adopted federal standards. Id. at 402. The court rejected Arizona's argument as "ignor[ingj the basic premise of field pre-emption that States may not enter, in any respect, an area the Federal Government has reserved for itself." id. Here, the federal government occupies the field of immigration enforcement generally and particularly the regulation of local participation in federal immigration efforts. Because SB 4 permits the state to encroach into a field the federal government occupies, Plaintiffs are likely to succeed in showing that SB 4 is preempted.
2. SB 4 Is Conflict Preempted Because It Presents An Obstacle To Congressional Objectives
SB 4 is also conflict preempted. Conflict preemption applies if "where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 399. (quotations and citations omitted). "What is a sufficient obstacle is a matter ofjudgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id. In particular, a state law that "upsets the balance struck" by federal law or attempts to achieve the same goals as federal law by a different "method of enforcement" creates an obstacle to Congressional objectives. See id. at 403, 407. Here, SB 4 upsets the balance struck by federal law by layering a new set of state sanctions over federal immigration law, inviting local determinations of immigration status, limiting local
64 court struck down three of four provisions on preemption grounds. The fourth provision, which required state officers to make a "reasonable attempt" to determine the immigration status of a person detained on another legitimate basis survived in part because the court concluded that the "nature and timing of the case counsel[ed] caution in evaluating" that provision because of "basic uncertainty about what the law means." Id.
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authorities' discretion in immigration matters, authorizing unsupervised local officers to use their own discretion to "assist[]" and "cooperat[e]" with federal agents, and making mandatory conduct that Congress chose to leave voluntary, such as local enforcement of detainers. See id. at 406 ("[C]onflict in technique can be as fully disruptive to the system Congress erected as conflict in overt policy."). For these reasons, Plaintiffs will succeed on the merits in showing that SB 4 is conflict preempted.
First, SB 4 creates a new set of sanctions for local authorities who in any way limit their officers in cooperating with federal immigration authorities. Those who violate the law could be subject to fines of up to $25,000 per offense and could be removed from their jobs. SB 4's sanctions are not consistent with anything in federal law and therefore "undermine[] the congressional calibration of force" applied to local authorities in the immigration context. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 380 (2000); see also Villas at Parkside Partners v. City of Farmer's Branch, 726 F.3d 524, 529 (5th Cir. 2013) (en banc plurality).
The Supreme Court has been clear that inconsistent sanctions create a conflict between state and federal law. In Arizona v. United States, the provision that created a state misdemeanor for failure to carry an identification card was not only field preempted, it was conflict preempted because it created its own system of penalties for a violation of federal law. As the Court explained, the "state framework of sanctions creates a conflict with the plan Congress put in place." Id. at 403. For similar reasons, the Court also struck down a provision of the Arizona law making it a crime for an "unauthorized alien" to solicit work. Id. The Court explained that even a state law that "attempts to achieve the same goals as federal law" will be subject to conflict preemption if it adopts its own "method of enforcement." Id. at 406. Because SB 4 adopts its own "method of enforcement" for federal immigration law, Plaintiffs are likely to succeed in
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showing that it is subject to conflict preemption. Second, SB 4's detainer provisions conflict with the U.S. Department of Homeland
Security's approach to local enforcement of detainer requests. SB 4 requires local law enforcement officials to comply with federal detainer requests and requires local officers to make immigration determinations in order to decide if the subject should be released from the detainer. Federal law does not require that "method of enforcement" for detainer request. Arizona, 567 U.S. at 403, 407. Also, Congress has made federal immigration officials responsible for status determinations except in "limited circumstance." Fanners Branch, 726 F.3 d at 531. SB 4's detainer provisions bypass those limitations and place status determinations in the hands of untrained local officials, upsetting the "careful balance" Congress struck in the INA. Id.
Finally, SB 4 prohibits local officials from engaging in conduct that federal law allows. Congress only requires local officials to permit cooperation with federal immigration authorities in a narrow circumstance: local government entities "may not prohibit" officials from sending, receiving, maintaining or exchanging information about any person's immigration status. 8 U.S.C. § 1373. But under SB 4, local government entities "may not prohibit" inquiries into immigration status, "cooperating" with federal authorities, or "assisting" federal authorities. Because those provisions impose greater prohibitions on local jurisdiction than federal law on the same subject, they are preempted as conflicting with the Congress' considered decision to "steer a middle path" on the same issue. Crosby, 530 U.S. at 378-379.
For these reasons Plaintiffs are likely to succeed on the merits in showing that SB 4 is conflict-preempted.
D. SB 4 Violates the Equal Protection Clause of the Fourteenth Amendment The Equal Protection Clause of the Fourteenth Amendment protects citizens and non-

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citizens alike.65 SB 4 violates the Equal Protection Clause for two reasons: (1) SB 4
purposefully discriminates against Latinos on the basis of race; and (2) purposefully
discriminates against immigrants on the basis of citizenship.
SB 4 targets particular classesLatinos and non-citizens---and affects fundamental
rights, including freedom from unlawful detention. For both reasons, SB 4 is subject to strict
scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971) ("Aliens are a prime example of a
'discrete and insular' minority for whom such heightened judicial solicitude is appropriate.").
SB 4 does not survive such scrutiny.
SB 4 Was Enacted With Discriminatory Intent. To determine whether a law was
enacted with discriminatory intent, courts consider direct evidence as well as circumstantial
evidence according to the following factors: (1) the impact of the official action, i.e., whether it
"bears more heavily on one race than another," and whether "a clear pattern, unexplainable on
grounds other than race emerges from the effect of the state action even when the governing
legislation appears neutral on its face"; (2) the historical background of the decision; (3) the
specific sequence of events leading up to the challenged decision; (4) departures from the normal
procedural sequence; (5) substantive departures, "particularly if the factors usually considered
important by the decisionmaker strongly favor a decision contrary to the one reached"; and (6)
the legislative or administrative history, especially where there are contemporary statements by
members of the decisionmaking body, minutes of its meetings, or reports. Viii. ofArlington
65 "No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1 (emphases added); Plyler v. Doe, 457 U.S. 202, 210 (1982) (observing that "an alien is surely a 'person' in any ordinary sense of that term," and that the Equal Protection Clause applies to "any person"
without limitation to citizens or any other sub-group); Yick Wo v. Hopkins, 118 U.S. 356, 374
(1886) (fmding that if a law intends to or is administered "so as practically to make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution").

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Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977). SB 4 falls short on each applicable prong. First, the law would disproportionately impact
Latinos and non-citizens, regardless of their immigration status. By prohibiting the implementation of safeguards to prevent unlawful profiling, SB 4 effectively ensures that Latinos and non-citizens will be subject to disparate treatment and overt discrimination. See, e.g., Melendres v. Arpaio, 989 F. Supp. 2d 822, 903-04 (D. Ariz. 2013) (attributing racial profiling in part to agency's "failure to monitor its deputies' actions for patterns of racial profiling"). Second, the historical background of SB 4 includes a long history of Texas enactments that purposefully discriminate against Latinos. See, e.g., Perez v. Abbott, ---F. Supp. 3d---, No. SA-1 1CV-360, 2017 WL 1450121 (W.D. Tex. Apr. 20, 2017); Id., ---F. Supp. 3d---, 2017 WL 1787454 (W.D. Tex. May 2, 2017) (concluding Texas 2011 congressional and state house redistricting plans discriminated against Latinos on the basis of race); Veasey v. Abbott, ---F. Supp. 3d---, No. 13-CV-193 (S.D. Tex. Apr. 10, 2017) (concluding Texas 2011 voter identification law purposefully discriminated against Latinos and African Americans); LULI4C v. Perry, 548 U.S. 399, 439 (2006) (recounting Texas's "long history of discrimination against Latinos"); Hernandez v. Texas, 347 U.S. 475 (1954) (striking down Texas's systematic exclusion of persons of "Mexican descent" from jury service). Third, the sequence of events surrounding SB 4's enactment reflects an increasingly heated debate around immigration in general and calls to reduce crime by targeting immigrants. Fourth and fifth, the enactment of SB 4 was rife with departures from normal legislative procedure as well as substantive departures. Finally, the legislative history of SB 4 reveals the State's intent to discriminate against Latinos and noncitizens, including the use of racial insults aimed by Anglo legislators at their Latino colleagues. See Ex. 12 (Romero Decl.) ¶91 3-20. The failure to connect any public safety concern to the specific provisions of SB 4 further exposes SB 4's discriminatory intent. For example, one
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Texas lawmaker stated about SB 4: "This is about getting dangerous criminals off the street. That's the mission. It shouldn't be any less than that or any more than that."66 This equation of non-citizens who encounter the police with "dangerous criminals" shows precisely the impermissible focus on race and national origin that betrays discriminatory intent. Each of the applicable Arlington Heights factors points in the same direction here, and each shows prohibited intent.
SB 4 Mandates Disparate Treatment of Non-Citizens. The effect of applying SB 4 would
be no more constitutionally acceptable than the intent behind the statute. SB 4 strips Fourth Amendment protections from individuals subject to ICE detainers, prohibiting local entities from releasing those individuals even after they would no longer be detained and when the local entity lacks probable cause to believe the individual has committed a crime. Tex. Crim. Code § 39.07. Whereas U.S. citizens can be released from jail upon posting bond, SB 4 forces the jail to violate the Fourth Amendment rights of non-citizens in the same situation by requiring the jail to hold them in response to a detainer. SB 4 eradicates basic constitutional protections for non-citizens (and those suspected of being non-citizens), targeting a group that Texas has no compelling reason to treat differently. SB 4 also prevents local officials from protecting the constitutional rights of non-citizens by depriving local entities of the ability to enact or enforce laws that prohibit questioning arrestees and detainees about immigration status. Tex. Gov't Code § 752.053(b).
Immigration law is complex, and its enforcement is reserved to federal authorities; local officers untrained in its nuances may use race, national origin, and citizenship as impermissible proxies in seeking to enforce it. It is well established that unregulated local immigration
66 Cervantes, B., Sanctuary Cities Bill Gets Lengthy Debate, Houston Chronicle (Apr. 27, 2017)
at 1, available at https://www.pressreader.comlusa/houston-
chronicle/20 170427/281625305195450 (accessed June 16, 2017) (Texas House Representative Byron Cook, a senior Republican from Corsicana, explained this intent in arguing against amendment).

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enforcement leads to stops and arrests targeted at those perceived to be foreign, particularly
Latinos. Melendres, 989 F. Supp. 2d at 903-04. It is for this reason that local entitiesincluding the City of San Antoniohave adopted a variety of measures to ensure that their officers and
other employees are not placed in positions where they will be encouraged or likely to commit Fourteenth Amendment violations. These local entities are best positioned to prevent official discrimination in their local communities. Yet in clear disregard of the Fourteenth Amendment, SB 4 prevents local entities, including community colleges, from taking preventive steps to avoid the serious risk of violating the Constitution. E.g., Ex. 6 (Harmon Decl.) ¶(J[ 6-8.
None of this is permissible. The Supreme Court has repeatedly struck down and found unconstitutional similar state efforts to override local policies intended to address or prevent injury caused from discrimination.67 The Supreme Court's decision in Romer is particularly instructive. The law at issue there was an amendment to the Colorado state constitution that blocked local residents and officials from adopting local anti-discrimination policies that protected gays and lesbians. Notwithstanding the fact that gays and lesbians were not a traditionally protected class, the Court struck down the amendment, emphasizing that the law "impose[d] a special disability upon those persons alone" in preventing them from obtaining local laws to prevent discrimination." Romer, 517 U.S. at 631; cf Hunter v. Erickson, 393 U.S. 385, 391 (1969). SB 4 similarly violates the Equal Protection Clause by singling out a discrete, vulnerable group and eliminating their ability to obtain local protections against constitutional
67 Romer v. Evans, 517 U.S. 620 (1996) (striking down Colorado amendment that prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (striking down Washington statewide initiative that allowed school boards to maintain authority except for enacting anti-discrimination policies); Reit,nan v. Mulkey, 387 U.S. 369 (1967) (striking down California amendment as unconstitutionally encouraging racial discrimination despite fact that race was not mentioned, but impact would outlaw existing anti-discriminatory laws and policies).
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harms. Such laws do more than permit discrimination at the local level, although this would be bad enough. They also "operate to insinuate the State into the decision to discriminate." Schuette v. Coal. to Defend Affirmative Action, 134 5. Ct. 1623, 1631(2014) (plurality opinion).
SB 4 is also plainly improper when seen against the background of state-local relations generally. The law allows for local authority to continue over all policies but anti-discrimination policies, and thereby "differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area." Seattle, 458 U.S. at 480. This too is improper. Id. (finding state law prohibiting school boards from enacting anti-discrimination policies violates the Equal Protection Clause where, after its passage, authority over all areas except discrimination "remained in the local board's hands.")
SB 4's purported anti-discrimination provision does not cure any of the statute's Equal
Protection infirmities. A boilerplate reference to constitutional prohibitions on the consideration of race does nothing to address the problem that the statute disarms local entities from enacting or applying policies aimed at preventing racial discrimination.
E. SB 4 Violates Section 2 of the Voting Rights Act of 1965 By mandating the removal from office of elected officials who "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws," SB 4 dilutes the voting strength of Latinos in violation of section 2 of the federal Voting Rights Act of 1965, 52 U.S.C. § 10301. See SB 4 at Article 1, amending Texas Gov't Code to add §752.053 (policies and actions regarding immigration
enforcement) and 752.0565 (removal from office). Members of city councils, county commissions and community college boards of trustees
across Texas are elected in Latino-majority districts that offer Latinos the opportunity "to
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participate in the political process and to elect representatives of their choice." 52 U.s .C. § 10301 (b); see also Ex. 5 (Saldana Deci.) ¶ 2. If they believe they were elected in part to advocate for common-sense immigration enforcement policies, and make statements that are either critical of SB 4 or that "endorse a policy" under which their jurisdiction "prohibits or materially limits the enforcement of immigration laws," they are subject to removal and the votes of their constituents are nullified. Furthermore, in many cases, the appointment to fill their unexpired terms will be made by the governing body as a whole, which will not reflect the demographics of the Latino-majority district from which that official was elected. See, e.g. San Antonio City Charter, Article II ¶8 (providing that council vacancies are filled by a majority vote of the remaining members for an unexpired term of less than 6 months)68 and Tex. Election Code § 202.002 (providing for appointment to fill certain vacancies in county government).
Because SB 4 removes elected officials from office for endorsing alternatives to current immigration enforcement policies, and many of these officials will inevitably be elected from districts created to comply with section 2, SB 4 dilutes the voting strength of Latino voters in violation of section 2.
F. SB 4 Violates the Due Process Clause of the Fourteenth Amendment SB 4 violates Plaintiffs' rights under the Due Process Clauses of the Fourteenth Amendment in at least three ways. First, SB 4 deprives the members of Plaintiffs LUPE, WDP, and TACHE of their substantive due process rights by subjecting them to the arbitrary deprivation of physical liberty without adequate cause. Second, SB 4 deprives the members of Plaintiffs LUPE, WDP, and TACHE of their procedural due process rights to be heard "at a
meaningful time and in a meaningful manner." Boddie v. Connecticut, 401 U.S. 371, 378
68 Available at http://www. sanantonio. gov/Clerk/Legislative/City-Charter-City-Code (last viewed June 18, 2017)
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(1971). Third, SB 4 deprives Plaintiffs City of San Antonio, Councilman Saldafia, and the

members of TACHE of their due process rights by exposing them to civil and criminal sanctions

without providing adequate notice of the law's content, and by failing to "establish minimal

guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 358 (1983). As a

consequence of this third defect, the law fails on vagueness grounds.

1.

SB 4 deprives Plaintiffs of physical liberty without adequate cause.

"Freedom from bodily restraint has always been at the core of the liberty protected by the

Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80

(1992). SB 4 impermissibly infringes on this freedom. Section 2.01 of the statute requires "law

enforcement agencies. . . to comply with, honor, and fulfill any request made in the detainer

request provided by the federal government." This Court recently held that an individual's

Fourth and Fourteenth Amendment rights were violated when a county complied with a federal

immigration detainer request that led to detaining the individual without probable cause.

Santoyo v. United States, No. 5: 16-CV-855-OLG (W.D. Tex. June 5, 2017). Although not every

enforcement of an immigration detainer request will necessarily create the same constitutional

dilemma, SB 4 mandates that local law enforcement agencies comply with any detainer requests

regardless of whether doing so would violate the Constitution. Santoyo highlights that SB 4

represents a concrete and imminent threat to Plaintiffs' due process rights.

2. SB 4 contains no procedural safeguards to that individuals are heard "at a

meaningful time and in a meaningful manner."

Related to the substantive due process violation, the same provisions in SB 4 deprive
" Plaintiffs' members' of their "procedural due process" right to be heard at a meaningful time

and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 57 of 70
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In determining what procedural protections the Constitution requires, the Supreme Court often considers three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Zinermon v. Burch, 494 U.S. 113, 127 (1990) (quoting Mathews, 424 U.S. at 335). As applied to this case, each factor confirms the deficiency of SB 4. As noted, physical liberty is the most fundamental private interest protected by the Due Process Clause. See Foucha, 504 U.S. at 80. SB 4 poses a significant risk of erroneously depriving Plaintiffs' members of this fundamental liberty interest. In addition to the direct threat described immediately above, SB 4 renders local or state hearings potentially meaningless. For instance, as was the case in Santoyo, an individual who is ordered released by a judge at a hearing might nevertheless be detained pursuant to SB 4 without probable cause simply because federal immigration authorities issue a detainer request. This would strip the state hearing of its essential purpose and erode Plaintiffs' members' right to procedural due process. Meanwhile, the only procedural safeguard in SB 4 to ensure a detained individual will have access to an alternative outcome requires local police officers to review documentation and make immigration determinations in a manner wholly preempted by the INA. See SB 4 Art. 2. The state interests in SB 4 are negligible or non-existent. The Supreme Court's federal preemption jurisprudence affirms that states have no interest in regulating immigration. See
Graham, 403 U.S. at 379 ("The authority to control immigrationto admit or exclude non-
citizensis vested solely in the Federal Government."). Furthermore, the legislative history of
SB 4 demonstrates that Texas had no evidence that current law enforcement practices were

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creating a public safety problem with respect to immigrants. The ample evidence demonstrating
SB 4's burden on the economy and local government finances undermines the argument that the law fulfills a legitimatemuch less a compellingstate interest. See generally Ex. 17 (Nixon Decl.) (discussing SB 4's negative effects on the Texas labor market and economy as a whole); Ex. 14 (Johnson Decl.); Ex. 15 (Barrios Decl.) (discussing SB 4's negative impact on tourism).
3. SB 4's unconstitutional vagueness imposes severe sanctions without
providing adequate and encourages arbitrary law enforcement practices.
Separate from constitutional overbreadth issues related to the First Amendmentwhich
are implicated in this case as discussed abovethe Supreme Court recognizes that a law may be
impermissibly vague if "it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing Kolender, 461 U.S. at 358); see also United States v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001). There are two ways in which a law's vagueness can violate the Due Process Clause. First, "it is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits." Morales, 527 U.S. at 56 (quoting Giaccio v. Pennsylvania, 382 U.S. 399,
402-03 (1966)). Second, due process requires "that a legislature establish minimal guidelines to
govern law enforcement." Kolender, 461 U.S. at 358. SB 4 is unconstitutionally vague under both tests.
SB 4 fails to provide local entities and their employees with constitutionally acceptable notice as to what constitutes prohibited activity. "Because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws

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may trap the innocent by not providing fair warning. Viii. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)). Section 1.01 of SB 4 establishes that "[a] local entity or campus police department may not adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws." This provision creates several irreconcilable ambiguities. A local entity or campus police department is broadly defined
as the entity itself or "an officer or employee of. . . a municipality, county, or special district or
authority." Taking the statute at its plain meaning, this provision would prohibit a municipallyemployed janitor from individually expressing support for a reform to immigration laws affecting his city.
Adding to the ambiguity, SB 4 defines immigration laws as "the laws of this state or federal law relating to aliens, immigrants, or immigration." But because states have no authority to regulate immigration, it is entirely unclear what is meant by "immigration laws' . . . of this state."69 Presuming that SB 4 itself is a state immigration law, the law's plain meaning turns advocating for SB 4's repeal into endorsing a policy to materially limit state immigration laws.
SB 4's vagueness also encourages inconsistent enforcement by individual peace officers and makes uniform oversight by responsible governmental subdivisions precarious if not
impossible. The law implicitly imbues individual officers with authority to make ad hoc interpretations of "state and federal immigration laws" with no oversight or repercussions. Meanwhile, superior officers, administrators and elected officials risk severe fines and removal
69 In a recent case challenging the Texas immigrant harboring statute, codified at Tex. Penal Code § 20.05, Texas argued that its harboring statute was "not about immigration[.]" See, Cruz
v. Abbott, 177 F. Supp. 3d 992, 1009 (W.D. Tex. 2016), rev'd in part, 849 F.3d 594 (5th Cir.
2017).
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from office if they make statements or take actions that might plausibly fall within in the broadly worded "endorse" prohibition. The statute's weak attempt at providing a safeguard from discrimination only exacerbates the problem. Saying officers "may not consider race, color, religion, language, or national origin while enforcing immigration laws except to the extent permitted by the United States Constitution or Texas Constitution" while removing any authority of their employers to supervise or guide their behavior encourages officers to determine individually the boundaries of constitutional anti-discrimination jurisprudence.
The citizen complaint provision of the statute is equally infirm. Under Section 752.055, citizens may petition the attorney general when they believe SB 4 is being violated. But the statute provides no specific requirements for such complaints beyond that they include "facts supporting an allegation" of a purported SB 4 violation. Not does the statute provide any criteria for the attorney general to consider in evaluating complaints.
"[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications." Viii. of Hoffman Estates, 455 U.S. at 498. Because SB 4 prohibits law enforcement agencies and local government officials from adopting policies aimed at preventing either indiscriminate or intentionally discriminatory constitutional violations, it subjects Plaintiffs to precisely the type of "arbitrary governmental action" the Due Process Clause prohibits. Foucha, 504 U.S. at 80.
G. SB 4 Violates the Contracts Clause The Constitution prohibits states from "impairing the Obligation of contracts." U.S.
Const. art. I, § 10, cl. 1. To show a violation, the threshold question is whether "the state law has,

Case 5:17-cv-00404-OLG Document 77 Filed 06/19/17 Page 61 of 70
in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). "This inquiry has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial." Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992). If a substantial impairment is shown, the state may justify the change in law by showing "a significant and legitimate public purpose behind the regulation." Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400,411(1983). But even if such a purpose exists, the law will survive scrutiny only if the impairment is "both reasonable and necessary to serve" the purposes claimed by the State. US. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1,29(1977). While courts defer to legislative judgment on a statute's necessity and reasonableness, that deference is lessened where a state is a party and the state's "self-interest is at stake." Id. at 26.
1. SB 4 impairs the obligations between public institutions of higher education and students.
SB 4 impairs the contractual obligations between institutions of higher education and students. Because the statute strips colleges and universities of the ability to supervise and guide campus police departments in the area of immigration, students will be deterred from attending school and completing their degrees.7° Ex. 11 (Alderete Decl.) ¶ 7, 8.
There is an implied contract between these institutions of higher education and their students. The institution offers admission, charges tuition, and sets standards and guidelines for academic achievement, community citizenship, and general behavior through student handbooks and pertinent curriculum. It is implied that if students follow these standards and guidelines,
70 SB 4 applies both to the State's community college districts and to all college and university campus police departments. Tex. Gov't Code § 752.05 1(5) and Tex. Educ. Code § 61.003 and
130.001 et seq.; Ex. 6 (Harmon Deci.) ¶ 6.

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they will earn degrees. SB 4 substantially impairs this contract. The statute restrains the ability of colleges and
universities to guide and supervise their police officers in the area of immigration, and it will inevitably lead to racial profiling and local enforcement of federal immigration laws as campus police officers question and detain students in an effort to "inquir[e] into [ immigration status," "assist[] or cooperat[e] with a federal immigration officer," or "provid[e] enforcement assistance" to a federal officer. Tex. Gov't Code §752.053(b); Ex. 6 (Harmon Decl.) ¶(J[ 20, 25, 31. Indeed, officials fear that students will no longer consider their college campus safe, that recruitment of Latino students will drop, and that parents will not feel safe sending their children
to community colleges. See Ex. 6 (Harmon Deci.) ¶(j[ 22-24; Ex. 11 (Alderete Decl.) ¶(J[ 45.
Because of its effects on Latino students in higher education, SB 4 substantially impairs contractual obligations between students and their institutions.
There is no significant and legitimate public purpose behind SB 4, nor is it reasonable and necessary. The safety and security arguments offered by legislators during the enactment of SB 4 were contradicted by local law enforcement officials, who testified that SB 4 will make
communities less safe. See generally Ex. 3 (McManus Decl.); Ex. 11 (Alderete Decl.) ¶ 9.
Furthermore, SB 4 creates a detainer policy that conflicts with federal law, and establishes a system of local immigration enforcement that encroaches on the federal field of immigration and conflicts with current federal policy and practices. There can be no legitimate public purpose in passing preempted legislation. And even if there were, the law is neither reasonable nor appropriate in its effects on the contracting parties. See U.S. Trust, 431 U.S. at 30 (finding statute unconstitutional where State could have met its goals by other means). Indeed, SB 4 makes communities less safe, as it threatens to undermine proven methods of community policing. See
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Ex. 6 (Harmon Deci.) ¶(J[ 17, 23-24.
2. SB 4's endorsement ban impairs the obligations between public institutions of higher education and their employees
SB 4 also substantially impairs the obligations between public institutions and their employees, who may be subject to unduly prohibitive civil penalties while teaching pursuant to their employment contracts. Community college employees, including professors and administrators, are subject to the "endorse, adopt" provision, and are thereby prohibited from expressing support for any policy that "materially limits the enforcement of immigration laws," which would include expressing support for alternatives to SB 4 itself. Tex. Gov't Code § 752.053 (a)( 1). Contracts between public institutions and their employees, specifically professors and other teachers, mandate teaching courses with sufficient rigor and critical analysis. SB 4
will inevitably "lead to a suppression of employee speech." Ex. 6 (Harmon Deci.) ¶ 10. Under
SB 4, community college professors and other teachers will not be able to fulfill their contractual
obligation to teach effectively due to SB 4's unconstitutional limitation on speech. Id.
For example, a public policy or political science professor teaching a class on immigration at a community college may be sued and fined for endorsing a policy that materially limits the enforcement of immigration laws by holding class discussion and endorsing, even for the purpose of promoting debate, a policy under which campus police decline to assist ICE agents in collecting information about, or apprehending, undocumented students on campus. The substantial civil penalties of up to $25,500 per offense limit the ability of professors to perform their duties with adequacy and sufficiency, and thereby constitutes a substantial impairment of their contractual obligation to teach.
II. Plaintiffs Will Suffer Irreparable Harm if an Injunction Is Not Granted
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It is well settled that the violation of constitutional rights for even a minimal period of time constitutes irreparable injury justifying the grant of a preliminary injunction. See Deeifleld Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); DeLeon v. Perry, 975 F. Supp. 2d 632, 663 (W.D. Tex. 2014), aff'd sub nom. DeLeon v. Abbott, 791 F.3d 619 (5th Cir. 2015) ("Federal courts at all levels have recognized that violation of constitutional rights constitutes irreparable harm as a matter of law."); see also Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.")
Where state law is likely preempted, as it is here, the likelihood of irreparable injury is implied. See Tex. Midstream Gas Servs., LLC, 608 F.3d at 206 ("If a statute is expressly preempted, a finding with regard to likelihood of success fulfills the remaining [preliminary injunction] requirements."); see also VRC LLC v. City of Dallas, 460 F.3d 607, 611(5th Cir.
2006); Trans WorldAirlines, 897 F.2d at 784; Greyhound Lines, Inc. v. City ofNew Orleans, 29
F. Supp. 2d 339, 341 (E.D. La. 1998) ("Because this case involves preemption, a finding of success on the merits implicitly carries with it a determination that the other three requirements have been satisfied."). Irreparable injury results because Plaintiffs are subject to inconsistent prohibitions after Congress determined that one federal set of standards should apply. See Trans World Airlines, 897 F.2d at 784 (explaining that irreparable injury results when state law deprives plaintiffs of the right to have only one regulator); see also United States v. South Carolina, 720 F.3d 518, 533 (4th Cir. 2013) (determining that plaintiffs established a likelihood of irreparable injury because "the likelihood of chaos resulting from South Carolina enforcing its
separate immigration regime is apparent"); Ga. Latino All. for Human Rights v. Governor of Ga.,
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691 F.3d 1250, 1269 (11th Cir. 2012) ("Plaintiffs are under the threat of state prosecution for crimes that conflict with federal law, and we think enforcement of a state law at odds with the federal immigration scheme is neither benign nor equitable.").
A. Plaintiff San Antonio
As discussed above, San Antonio is confronted with the choice between attempting to
comply with SB 4which is preempted and threatens the constitutional rights of the city's
residentsand defying SB 4 and thereby risking the imposition of tens of thousands of dollars in
civil penalties, criminal liability, and removal of its officials from elected or appointive office. Because SB 4 forces San Antonio and other municipalities to make this unreasonable choice, the statute threatens constitutional injury sufficient to establish irreparable harm. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 380-38 1 (1992) (injunctive relief available where "respondents were faced with a Hobson' s choice: continually violate the Texas law and expose themselves to potentially huge liability; or violate the law once as a test case and suffer the injury of obeying the law during the pendency of the proceedings and any further review."). San Antonio faces draconian penalties for ensuring that its city jail, police force, and administrative staff comply with constitutional standards.
The substantial uncertainty caused by SB 4's unclear terms and its broad and undefined
scope are currently causing harm and will continue to do so absent an injunction. This
uncertainty is multi-faceted: SB 4's directive and unduly vague terms have caused substantial confusion and fear that San Antonio may be subject to hefty fines, criminal liability, and removal of its elected and appointed officials from their public offices. This uncertainty interferes with San Antonio's ability to budget, plan for the future, and properly serve its residents.
SB 4 also hijacks San Antonio's authority to enact policies that best fit its community's
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needs, including community policing policies. San Antonio faces imminent irreparable injury if SB 4 takes effect because the provisions of SB 4 will diminish the trust that San Antonio's Police Department has established with the Latino and immigrant community. San Antonio has spent years gaining this trust and has cultivated a relationship where the immigrant community feels safe reporting crimes and assisting the police with investigating crimes. SB 4 will undo that trust, and consequently make San Antonio and other Texas communities less safe. No judicial remedy can repair this.
B. Plaintiff San Antonio City Councilmember Rey Saldafla
SB 4 threatens Councilmember Saldafla with irreparable harm because it infringes his First Amendment freedom of speech and restricts the content of his political speech. Elrod, 427 U.S. at 373 ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). SB 4 impermissibly limits the kinds of policies, laws, and regulations that Councilmember Saldaña can advocate for or against. Councilmember Saldaña is subject to credible threats of prosecution as Defendants proceed to enforce SB 4. A plaintiff "does not have to await the consummation of threatened injury to obtain preventative
relief." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (internal quotation marks omitted). The looming threat of prosecution is a substantial threat of irreparable injury if the injunction is not issued. See Valle del Sol, Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (likelihood of irreparable injury where plaintiffs demonstrated "a credible threat of prosecution" under the likely-preempted state harboring statute).
C. Plaintiff TACHE Plaintiff TACHE' s members face irreparable harm to their First Amendment freedom of speech and academic freedom. Elrod, 427 U.S. at 373. SB 4 abridges the academic freedom of
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TACHE' s members in that it restricts members' ability to control who teaches, who is taught, what subjects are taught, and how subjects are taught at Texas institutions of higher education. By deterring TACHE members from organizing on campus, their freedom of association is also abridged. Ex. 6 (Harmon Deci.) ¶91 11, 14-15. TACHE members may face racial profiling in hiring decisions, which will irreparably harm their careers. Id. at ¶ 14. The removal of TACHE institution's leadership would deprive those districts of their elected representation. Id. at ¶ 19.
Additionally, TACHE's Latino student members face irreparable injury in the form of unlawful stops, arrests, and extended detentions. Id. SB 4 will adversely affect TACHE' s members, who may be deterred from going to classes and campus events because they fear being unlawfully detained, racially profiled, and questioned about their immigration status.
D. Plaintiffs WDP and LUPE Plaintiffs WDP and LUPE fear that vulnerable members, employees, and volunteers for
their organizations will be deterred from seeking assistance from and performing work with them. WDP and LUPE also fear that they will have to redirect or lose resources because members are not seeking out organizational services for fear of intimidation with law
enforcement. Ex. 7 (Valdez-Cox Deci.) at ¶ 12. Consequently, SB 4 will hinder WDP's and LUPE's ability to fulfill their organizational
missions. Valle del Sol Inc., 732 F.3d at 1029 (finding irreparable harm where "organizational plaintiffs have shown ongoing harms to their organizational missions as a result of the [antiharboring] statute"). Additionally, WDP's and LUPE's members face irreparable injury in the form of unlawful stops, arrests, extended detentions, racial profiling, and questions about their immigration status.
III. Plaintiffs' Threatened Injuries Outweigh Any Alleged Injuries to the State

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The equities tip heavily in favor of granting a preliminary injunction that halts the enforcement of SB 4. Plaintiffs simply seek to maintain the status quo by enjoining Defendants from enforcing an unconstitutional and preempted law in order to prevent irreparable harm to Plaintiffs and to the public. Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008) (party seeking a preliminary injunction must "establish.., that the balance of equities tips in his favor, and that an injunction is in the public interest"). Indeed, the primary purpose of a preliminary injunction is to preserve the status quo pending a determination of the action on its merits. Chalk v. United States Dist. Ct. Cent. Dist. of Cal.., 840 F.2d 701, 704 (9th Cir. 1988); Six Clinics
Holding Corp., liv. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997).
There is iio harm to defendants because there is no injury to Defendants who have no authority to enforce the law. See Trans World Airlines, 897 F.2d at 784 (determining plaintiffs were likely to succeed on their preemption claim and, consequently, that there was no injury to weigh against defendants from an injunction of the preempted state law); United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) ("[Wie discern no harm from the state's nonenforcement of invalid legislation.")
IV. A Preliminary Injunction Would Serve the Public Interest It is "always" in the public's interest to prevent the violation of the constitution and of an
individual's constitutional rights. Deerfield Med. Cir., 661 F.2d at 338-39; Melendres v. Arpaio,
695 F3d 990, 1002 (9th Cir. 2012) (Fourth Amendment); Wis. Right to Lit. Inc. v. Barland. 751
F.3d 804, 830 (7th Cir. 2014) (First Amendment). It is in the public interest not to allow a state to violate the requirements of federal law. Valie del Sol, 732 F.3d at 1029. And the government has no interest in enforcing an unconstitutional law. N. Y Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013).
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Finally, Congress has established a comprehensive scheme regulating immigration

enforcement that best serves the public interest without interference by an incompatible state

law. See Trans World Airlines, 897 F.2d at 784 (reasoning that the public interest was best

served by enjoining a preempted state Iaw and giving effect to Congress's determination that the

public was best served by exclusive federal regulation); Alabama, 691 F.3d at 1301 ("Frustration

of federal statutes and prerogatives are not in the public interest.")

CONCLUSION

For the above reasons, the Plaintiffs respectfully request that the Court enjoin the State

from enforcing SB 4.

Dated: June 19, 2017

Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
By Is! Nina Perales Thomas A. Saenz (CA Bar No. 159430 )* Nina Perales (TX Bar No. 24005046) Marisa Bono (TX Bar No. 24052874) Celina Moreno (TX Bar No. 24074754) Jack Salmon (TX Bar No. 24068914) Andrea Senteno (NY Bar No. 5285341)* Tanya G. Pellegrini (CA Bar No. 285 186)* 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382
*pending Pro Hac Vice Admission

Attorneys for Plaintiffs CITY OF SAN ANTONIO, REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO AND WORKERS DEFENSE PROJECT

CITY OF SAN ANTONIO Deborah Lynne Klein Deputy City Attorney, Litigation SBN: 11556750

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V
Office of the City Attorney
Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205 (210)207-8940/(210)207-4357
CITY OF SAN ANTONIO AND REY SALDANA
CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2017, 1 served a copy of the foregoing document on all counsel registered to receive NEFs through this Court's CM/ECF system. All attorneys who are not registered to receive NEFs have been served via email.
Is! Nina Perales
Nina Perales

 
 Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas, et al.

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Plaintiffs,

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Travis County, Travis County Judge Sarah

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Eckhardt, and Travis County Sheriff

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Sally Hernandez

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Plaintiff-Intervenors,

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v.

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State of Texas, et al.

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Defendants.

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Civil Case No. 5:17-cv-404-OG

COMPLAINT IN INTERVENTION OF TRAVIS COUNTY, TRAVIS COUNTY JUDGE SARAH ECKHARDT, AND TRAVIS COUNTY
SHERIFF SALLY HERNANDEZ

COMES NOW TRAVIS COUNTY, JUDGE SARAH ECKHARDT, in her official capacity as Travis County Judge, and SHERIFF SALLY HERNANDEZ, in her official capacity as Travis County Sheriff ("Intervenors") and file this Complaint in Intervention against the STATE OF TEXAS ("State"), GREG ABBOTT in his official capacity as Governor of Texas, and KEN PAXTON in his official capacity as Attorney General of Texas, pursuant to Federal Rules of Civil Procedure, Rule 24(a)(2), or, in the alternative, Rule 24(b).
I. INTRODUCTION 1. The State of Texas has enacted, and Governor Greg Abbott has signed, Senate Bill 4 ("SB 4"), an unprecedented and punitive law that, among other things, mandates compliance with voluntary detainer requests from United States Immigration and Customs

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Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 2 of 17
Enforcement ("ICE"), and provides severe penalties for law enforcement officials who fail to comply, including criminal penalties, large civil fines, and removal from office.
2. The law does not stop at punishing law enforcement officials for declining to honor ICE detainers; it also punishes local government entities and their elected and appointed officials and employees for adopting, enforcing, or endorsing any policy that "materially limits
the enforcement of immigration laws" (Act of May 7, 2017, 85th Leg., R. S., S.B. 4, § 1.01 (to be
codified in Chapter 752, Government Code, as § 752.053 (a)), subjecting them to civil penalties and removal from office.
3. Law enforcement groups and officials from around the State opposed the SB 4 because its mandate requiring local law enforcement to engage in federal immigration activities
harms public safety by discouraging the cooperation of victims and witnesses with law enforcement investigation of crimes.
4. SB 4 will subject Texansboth non-citizens and citizensto racial and ethnic
profiling, unlawful stops, and unlawful detentions. This is because SB 4 requires that local law
enforcement officers enforce federal immigration laws without the direction and supervision of federal officials. Additionally, SB 4 undermines the discretion and judgment of local law
enforcement officials regarding detention, instead requiring an inflexible "one size fits all"
standard. This will lead to stops and detentions that are unnecessary in the eyes of local law
enforcement officials who are infinitely more familiar with the facts on the ground. Under SB 4, both citizens and non-citizens will be at risk of constant prolonged stops due to unwarranted and burdensome inquiries into their immigration status.
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5. SB 4's prohibition of endorsement of any policy that limits immigration enforcement is a clear content and viewpoint-based regulation of free speech that violates the
First Amendment.
6. SB 4's prohibition on any activity that "materially limits" immigration
enforcement is void for vagueness. 7. SB 4 mandates that law enforcement officials hold inmates beyond the
completion of their criminal sentences, thereby potentially requiring those officials to violate the Fourth Amendment rights of such individuals.
8. SB 4's enforcement provisions are preempted by federal law because they duplicate and expand provisions of federal immigration law and establish state enforcement
procedures that inject themselves into the comprehensive federal enforcement scheme in ways that are neither contemplated nor authorized by federal law.
9. SB 4 compels local law enforcement officials to become an arm of the federal government for purposes of enforcing immigration laws, putting them in a position that the
federal government does notand indeed could notrequire of them, further upsetting the
careful federal immigration enforcement scheme. 10. Intervenors seek a declaration that SB 4 is unconstitutional, and an injunction
against its implementation by the State, because it violates the First Amendment; Fourth
Amendment; Tenth Amendment; Due Process Clause; and Equal Protection Clause of the U.S.
Constitution, and is preempted by federal law. II. JURISDICTION AND VENUE
11. Intervenors raise federal questions under the United States Constitution. The Court has jurisdiction over these constitutional claims pursuant to 42 U.S.C. § 1331, Federal

Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 4 of 17
Question. Additionally, the Court has remedial authority under 28 U.S.C. § 2201-02, Declaratory Judgment Act. Venue lies in this district pursuant to 28 U.S.C. § 1931 because a
substantial part of the events or omissions giving rise to the claim occurred in this district. III. ADDITIONAL PARTIES
12. Intervenor Travis County is a county located in Texas, and is recognized as a
legal subdivision of the State. Travis County has constitutional and statutory authority to set
policies and adopt regulations, as well as administer programs for its residents. It administers the
county judicial system, and provides health and social services to county residents regardless of
their immigration status or national origin.
13. Travis County is the seat of government for its duly elected and appointed public officials, who face injury in fact from SB 4 in the form of mandamus, injunction, crippling civil penalties, and removal from office if they are determined to be non-compliant with this law. The
law also creates budget uncertainty for Travis County by requiring Travis County to assume the
costs of training its staff and law enforcement officials to enforce federal immigration rules and laws, and the costs of housing inmates subject to immigration detainers without bond during the pendency of their state criminal cases, as well as beyond release dates mandated by state law.
14. Intervenor Sarah Eckhardt is the duly elected County Judge of Travis County, who faces the injury of civil penalties and/or removal from office for endorsing a policy that "materially limits" enforcement of immigration laws. "Materially limits" is not defined by the statute, is vague, and appears to subject Judge Eckhardt to removal from office for any kind of speech critical of the statute, or of State or Federal immigration enforcement policies or practices. Judge Eckhardt was elected by the voters of Travis County, and as their duly elected
County Judge, is expected to advocate for the issues important to those voters, including this
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issue. Judge Eckhardt faces actual and imminent harm from SB 4. Judge Eckhardt appears in her official capacity.
15. Intervenor Sally Hernandez is the duly elected Sheriff of Travis County. She is a judicial officer with discretion derived from the Texas Constitution. Tex. Const. Art. V, § 23. Sheriff Hernandez faces civil penalties and/or removal from office for various acts that may be deemed to violate SB 4, including adopting, enforcing, or endorsing a written or verbal policy that is determined to "materially limit" the enforcement of immigration laws. As a law enforcement officer, under SB 4 she is also subject to criminal sanctions for declining to honor a
detainer request from ICE, as well as automatic removal from office if she is convicted of this
new criminal offense. Sheriff Hernandez appears in her official capacity. 16. Sheriff Hernandez's authority and discretion to administer the law and to ensure
the public safety of the residents of Travis County is greatly diminished by SB 4. Sheriff Hemandez faces actual and imminent harm as a result of SB 4's unconstitutional mandates.
17. The threat of punitive enforcement of the provisions of this bill is real, as
demonstrated by the State's improperly filed lawsuit (Civil Action No. 1: 17-cv-00425-SS) alleging that Sheriff Hernandez intends to violate the law [Dkt. 23, ¶1J17, 40], although her public statements have contradicted this assertion, and asking the Court to issue an advisory opinion declaring the law to be constitutional. [Dkt. 23, PRAYER, p. 41] The State further alleges in its lawsuit that Travis County and its elected officials intend to violate the law. [Dkt. 23, ¶35] Travis County, Judge Eckhardt, and Sheriff Hernandez have pre-enforcement standing to bring this action, and are currently injured by Senate Bill 4's mandates.
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IV. ORIGINAL LAWSUIT 18. Plaintiffs City of El Cenizo, et al., filed suit against Defendants State of Texas, Governor Greg Abbott, and Attorney General Ken Paxton, seeking declaratory and injunctive relief to prevent implementation of SB 4. Plaintiffs allege that SB 4 violates the First Amendment, the Due Process Clause, the Fourth Amendment, the Ninth and Tenth Amendments, and the Equal Protection Clause of U.S. Constitution, and that it is preempted by the Supremacy Clause of the U.S. Constitution because it intrudes into immigration enforcement, a field that is occupied by the federal government's comprehensive enforcement scheme. Plaintiffs allege that SB 4 imperils the liberty and livelihood of the City of El Cenizo and its officials, Maverick County and its officials, along with their basic ability to serve their own constituents. Plaintiffs further allege that LULAC is an organization that serves Latinos throughout Texas, and its members are threatened by the SB 4's dramatic expansion of the State's role in immigration enforcement.
V. INTERVENORS' FACTUAL ALLEGATIONS 19. The following factual allegations are in addition to those presented in the Plaintiffs' complaint. In an abundance of caution, Intervenors present these arguments prior to the effective date of SB 4, because under SB 4, repercussions for making such statements could include civil penalties and removal from office. A. Compliance with ICE detainer requests is voluntary under federal law and
Department of Homeland Security guidance. 20. ICE routinely sends detainer requests to the Travis County Sheriff. A detainer request notifies the Sheriff that the Department of Homeland Security ("DHS") has identified a person who is being held in the Travis County Jail whom DHS believes to be an alien subject to removal, and requests that the Sheriff maintain custody of the individual for a period of up to 48

Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 7 of 17
hours (excluding Saturdays, Sundays, and holidays, 8 C.F.R. §287.7 (d)) beyond the time when the individual would otherwise be released from custody.
21. The detainer is a request by ICE that the Sheriff hold an individual beyond the release date authorized by the criminal courts at sentencing to afford ICE extra time to investigate whether the individual subject to the detainer may be deported. Such detainers, issued by ICE on Form I-247A, are civil in nature. These detainers are easily distinguishable from criminal warrants issued by a judge, which the Travis County Sheriff honors. ICE civil detainer requests are neither reviewed, nor issued, by a judge.
22. ICE detainers are merely requests that law enforcement agencies are not required to follow. 8 C.F.R. § 287.7(a). Indeed, numerous federal courts have held that the federal government cannot mandate local law enforcement officials to comply with such detainers
without running afoul of the anti-commandeering provision of the Tenth Amendment.
23. Because ICE detainers are requests, not mandatory orders, federal law imposes no consequences upon law enforcement agencies that disregard the detainer request.
B. Sheriff Hernandez's policy on ICE detainer requests is compliant with both federal law and Department of Homeland Security guidance.
24. Sheriff Hernandez's campaign made clear her belief that Travis County is safer when everyone, regardless of immigration status, feels safe interacting with law enforcement.
25. Sheriff Hernandez was elected by a nearly thirty-point margin, and assumed office on January 1, 2017.
26. Shortly after her election, Sheriff Hernandez issued a written policy, effective on February 1, 2017, setting forth the procedures by which the Travis County Sheriffs Office ("TCSO") would cooperate with ICE concerning ICE detainer requests. This policy was adopted
before the legislature even considered 5B4. A copy of this policy is attached hereto as Exhibit 1.
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27. The purpose of this policy is to promote public safety, to protect and serve all residents of Travis County, and to ensure continued participation of victims and witnesses regardless of their immigration status. Under this policy, TCSO will only comply with civil detainer requests from ICE if those requests are supported by judicial warrant or court order, or if those requests concern individuals alleged to have committed certain serious crimes. Even if
neither condition is met, Sheriff Hemandez has reserved the right to exercise discretion in any individual case to ensure that justice is served.
28. This policy, while it limits the participation of her office in immigration activities,
does not restrict participation where it is mandated by 28 U.S.C. § 1373 and other federal laws. By this policy, Sheriff Hernandez has chosen to manage her resources in a manner that she believes makes the entire community safer.
29. Compliance with ICE detainer requests consumes limited resources. TCSO personnel must track and respond to requests. Further, inmates whom the courts have ruled to be eligible for release must be held in Travis County Jail cells, cells that are often in short supply,
and these inmates must be supervised and fed for additional time beyond the termination of the sentences imposed by the criminal courts that convicted them.
30. Sheriff Hernandez's policy does not protect criminals or prevent people from being prosecuted for criminal acts.
31. Sheriff Hernandez's policy is fully compliant with federal law and DHS guidance. Sheriff Hernandez intends to fully comply with SB4 unless ordered otherwise by the courts.
C. Governor Abbott responds to Hernandez's policy by taking money from Travis County's most vulnerable populations.
32. Immediately after Sheriff Hernandez announced her policy concerning ICE
detainers, Governor Greg Abbott announced that he would withhold grant funding for Travis
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County in retaliation for Sheriff Hernandez's public statements. Ultimately, Texas denied Travis County $1.5 million in previously awarded funds that would have supported programs for victims of family violence, veterans, and other at-risk communities.
33. Defunding ongoing programs for Travis County's veterans and battered women was not enough. Governor Abbott directed his office to refuse all future Travis County grant
applicationseven those unrelated to immigration. Travis County's new grant applications for the 2017-2018 grant cycle were rejected by the Criminal Justice Division of the Governor's
Office. 34. On February 2, 2017, Governor Abbott announced via social media that "Texas
will hammer Travis County" because of its perceived "sanctuary" policies.
35. On or about February 6, 2017, Governor Abbott again announced that he would "hammer" Travis County. During an appearance on a radio talk show, Governor Abbott stated:
I'm putting the hammer down. This is offensive what is going on in Austin, Texas. It's actually the county, which is Travis County, which is the county seat of Austin, Texas. Travis County has declared what I call "sanctuary city policies." They are no longer going to hold for ICE detainers, certain
criminalswho are, in fact, criminalsthey've been arrested before for very
serious crimes.
36. As part of his comments, Governor Abbott threatened to send public officials to
jail if they fail to comply with civil detainer requests. D. The Legislature disregards constitutional rights and enacts SB4. 37. On January 31, 2017, at the beginning of the Texas legislative session,
Governor Abbott made the punishment of "sanctuary" jurisdictions one of his top priorities. He
complained that the federal government was not preventing undocumented immigrants from crossing the border, and claimed that some law enforcement officials "are openly refusing to

Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 10 of 17
enforce existing law." He then announced that "this is the session we will ban sanctuary cities."
38. Governor Abbott achieved his goal by signing SB 4 into law, effective September 1,2017.
39. The State of Texas, by its enactment of SB 4, seeks to coerce Sheriff Hernandez to abandon her policy on ICE detainers by threat of criminal sanctions and removal from
office. 40. SB 4 requires Sheriff Hernandez to comply without question with any request by
federal immigration authorities, eliminating any opportunity for meaningful local review or
consideration of allocation of local resources or public safety. 41. Travis County Judge Sarah Eckhardt has been a vocal opponent of SB 4, and is
specifically targeted and harmed by SB 4's vague and undefined restriction on endorsement of policies that "materially limit the enforcement of immigration laws."
42. SB 4 further requires Travis County and all its elected and appointed officials, including Sheriff Hernandez and Judge Eckhardt, to unquestioningly agree with, and comply with, any requests by immigration authorities or face fines up to $25,500 per day and removal from office. Indeed, SB 4 goes so far as to punish elected and appointed officials who attempt to comply with its edicts, but refuse to remain silent while doing so.
43. SB 4's requirement that local governments and officials enforce federal
immigration laws eliminates the trust that has been carefully cultivated to keep the community
safe, and is an unwarranted intrusion into the rights of Travis County and its elected officials to serve their constituents.
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44. Although SB 4's provisions do not take effect until September 1, 2017, the
consequences threatened on that effective date are severe and punitive, and require immediate action to avoid their unavoidable constitutional violations.
VI. CAUSES OF ACTION COUNT ONE: FIRST AMENDMENT 45. Intervenors repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 46. SB 4 prohibits county officials and employees from endorsing a policy that "materially limits the enforcement of immigration law." The term "endorse" is not defined by SB 4, but is commonly understood to involve speech; that is, to publicly or officially express support or approval of someone or something.
47. SB 4's endorsement prohibition regulates expression based on its content
immigration enforcementand therefore requires strict scrutiny. It also regulates expression-
based viewpoint, because it only prohibits speech that criticizes SB 4 and immigration enforcement, not speech that supports the bill, its purpose, or its restrictions. SB 4 sets out
procedures for removal from office of local officials who take a position in opposition to the bill
or its provisions for enforcing immigration laws. The provision is not narrowly tailored to serve a compelling state interest, and therefore violates the First Amendment.
COUNT TWO: VAGUENESS 48. Intervenors repeat and incorporate by reference each allegation of the prior
paragraphs as if fully set forth herein. 49. SB 4 is unduly vague, in violation of the Procedural Due Process Clause of the
Fourteenth Amendment, because it does not give a person of ordinary intelligence a reasonable
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Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 12 of 17
opportunity to know what is prohibited, nor does it establish definite guidelines for law enforcement.
50. SB 4 fails to give local entities, elected and appointed officials, and employees
fair notice of what conduct will subject them to substantial civil penalties and removal from
office. Among other things, the statute prohibits any policies, including "informal" and "unwritten" policies, that "materially limit" immigration enforcement.
51. SB 4 does not provide any notice of what the enforcing authority, the Texas Attorney General, might consider endorsement, nor does it provide notice of what might constitute material limitation of immigration activities.
COUNT THREE: FOURTH AMENDMENT 52. Intervenors repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 53. SB 4 requires law enforcement officials, including Travis County Sheriff Sally Hernandez, to honor all detainer requests from ICE or face criminal charges and removal from office, eliminating their discretion to address Fourth Amendment concerns raised by detention of inmates without criminal warrants. 54. By forcing local law enforcement officers to detain individuals without discretion, SB 4 places them in the position of having to choose whether to violate the Fourth Amendment rights of individuals in their custody or themselves face criminal penalties and removal from
office.
COUNT FOUR: PREEMPTION 55. Intervenors repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
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56. SB 4 is preempted by federal law, which occupies the field in immigration, with comprehensive enforcement procedures that do not request nor envision the kind of state involvement required by SB 4.
57. SB 4 both duplicates and expands provisions of federal immigration law, and it
establishes state enforcement procedures that in effect make local law enforcement officials in
Texas an arm of the federal government, a position not contemplated by federal law. Federal law
permits individual local law enforcement officials to enter into agreements to assist federal immigration officials, with training and supervision by ICE, but does not authorize local authorities to enforce immigration laws on their own.
58. SB 4 amends Chapter 2 of the Texas Code of Criminal Procedure by adding
article 2.251, which provides:
DUTIES RELATED TO IMMIGRATION DETAINER REQUESTS.
(a) A law enforcement agency that has custody of a person subject to an
immigration detainer request issued by United States Immigration and Customs Enforcement shall:
(1) comply with, honor, and fulfill any request made in the detainer request provided by the federal government; and (2) inform the person that the person is being held pursuant to an immigration detainer request issued by United States Immigration and Customs Enforcement. (b) A law enforcement agency is not required to perform a duty imposed by Subsection (a) with respect to a person who has provided proof that the person is
a citizen of the United States or that the person has lawful immigration status in
the United States, such as a Texas driver's license or similar government-issued identification.
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Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 14 of 17
59. SB4 also adds Section 39.07 to Chapter 39 of the Texas Penal Code, providing:
FAILURE TO COMPLY WITH IMMIGRATION DETAINER REQUEST
(a) A person who is a sheriff, chief of police, or constable or a person who otherwise has primary authority for administering a jail commits an offense if the
person:
(1) has custody of a person subject to an immigration detainer request issued by United States Immigration and Customs Enforcement; and
(2) knowingly fails to comply with the detainer request. (b) An offense under this section is a Class A misdemeanor.
(c) It is an exception to the application of this section that the person who was
subject to an immigration detainer request described by Subsection (a)(1) had
provided proof that the person is a citizen of the United States or that the person
has lawful immigration status in the United States, such as a Texas driver's license or similar government-issued identification.
60. These provisions of SB 4 are preempted because they attempt to regulate a field
that Congress has left no room for the states to regulate, and they conflict with federal law.
61. The newly enacted article 2.25 1 (Act of May 7, 2017, 85th Leg., R.S., S.B. 4 (to
be codified as an amendment to Chapter 2, Tex. Code Crim. Pro. art. 2.251)) attempts to mandate that local law enforcement officials, such as Sheriff Hernandez, detain persons who are subject
of an ICE detainer, when, under federal law, ICE detainers are non-mandatory requests for
detainer that law enforcement agencies are not required to follow. 8 C.F.R. § 287.7(a). Because ICE detainers are requests, not mandatory orders, federal law imposes no consequences upon law enforcement agencies that disregard the detainer request. However, SB 4, by creating article 39.07 of the Texas Penal Code imposes a state criminal prohibition where no federal counterpart exists. Thus, article 2.251 is preempted by federal law and is invalid. As such, the reference to
article 2.251 in the newly enacted Section 752.053 of the Texas Government Code is also
invalid.
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COUNT FIVE: EQUAL PROTECTION 62. Intervenors repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 63. The Fourteenth Amendment to the U.S. Constitution provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws." 64. SB 4 was enacted with the intent to harm Texas residents based on their race, ethnicity, and national origin. In application, it will coerce law enforcement officers to engage in racial profiling in violation of the Fourteenth Amendment's Equal Protection Clause. 65. State enforcement of federal immigration laws is not a compelling interest that justifies race-based discrimination. SB 4 is not narrowly tailored, and is not the least restrictive means of achieving the stated government interest; nor is there a rational basis for separating local law enforcement officials, who serve and protect the public within their jurisdictions, from decision-making authority within those same jurisdictions and their own facilities in the name of immigration enforcement.
COUNT SIX: TENTH AMENDMENT 66. Intervenors repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
67. 8 C.F.R. § 287.7(a) authorizes ICE to issue detainers, providing, in pertinent part: [a] detainer serves to advise another law enforcement agency that the
Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the
Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. (emphasis added).
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Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 16 of 17 68. This statute makes clear that ICE detainers are requests, not mandatory orders. SB
4, by adding article 2.25 1 to the Texas Code of Criminal Procedure, transforms these requests
into mandatory orders, demanding that law enforcement agencies imprison, at their expense, suspected aliens subject to removal. As such, this statute violates the Tenth Amendment.
VI. COMMON QUESTIONS OF LAW AND FACT 69. Intervenors' claims, enumerated above, arise from common questions of fact and law asserted by Plaintiffs in their suit seeking to invalidate SB 4 on constitutional grounds. Common questions of law include the extent to which SB 4 intrudes on federal authority to regulate the status of foreign nationals within the United States' borders; the extent to which SB 4 is vague; and the extent to which SB 4 impedes the protected First Amendment conduct of local officials. Common questions of fact include the manner in which SB 4 will impact local law enforcement activities and how SB 4 will negatively impact local communities.
I/I
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Case 5:17-cv-00404-OLG Document 78 Filed 06/20/17 Page 17 of 17

PRAYER FOR RELIEF

WHEREFORE, Intervenors pray that the Court grant the following relief:

A. Declare that SB 4 is unconstitutional and invalid on its face;

B. Declare that SB 4 is preempted by federal law;

C. Grant preliminary and permanent injunctions barring Defendants from enforcing

Senate Bill 4.

D. Award Plaintiff-Intervenors court costs and reasonable attorney's fees; and

E. Grant any further relief that the Court deems proper.

DATED: June 8, 2017

Respectfully Submitted,

DAVID A. ESCAMILLA

TRAVIS COUNTY ATTORNEY

P.O. Box 1748

Austin, TX 78767

(512) 85479,415

,'-fl

(5 12) 853j/4841)8 FAX ( ,/

State Bar No. 00?'9 sherine.thomas@trav countytx.go Sharon Talley State Bar No. 19627575 sharon.taileytraviscountytx.gov Anthony J. Nelson State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh State Bar No. 06506270 laurie.eiserloh(ZItraviscountytx. gov Tim Labadie State Bar No. 11784853 tim.labadie(traviscountytx.gov Assistant County Attorneys
ATTORNEYS FOR PLAINTIFFINTER VENORS

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 Case 5:17-cv-00404-OLG Document 81 Filed 06/22/17 Page 1 of 2

H :ED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SANANTONIOD1VISION

2011 JUN 22 AM II: 20
'..

CITY OF EL CENIZO, et.al.
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY in his official capacity; and the TEXAS ORGANIZING PROJECT EDUCATION FUND, Plain tiffs,
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS and MARIA LONGORIA
BENEVIDES Proposed Plaint ff/Intervenor,

Civil Action No. 5: 17-CV-004O4-OLE
(Lead Case)
Case No. 5:17-CV-00459-OLG Consolidated

V. STATE OF TEXAS
Defendants,

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Civil Procedure 7.1, counsel for Proposed Plaintiff-

Intervenors hereby certify that Proposed Plaintiff-Intervenors the TEXAS ASSOCIATION OF

HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS is an association
of Hispanic elected county officials and have no outstanding securities in the hands of the public.

DATED: June 22, 2017

Respectfully Submitted,

ROLANDO L. RJOS 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Ph: (210)222-2102 Fax: (210) 222-2898
E-mai1:riosiisbcgIoba1.net LAW OFFICES OF ROLANDO L. RIOS

1

Case 5:17-cv-00404-OLG Document 81 Filed 06/22/17 Page 2 of 2

By:

/ o ndo Rips

ROLANDO L. RIOS

Attorney for the TEXAS ASSOCIATION OF

HISPANIC COUNTY JUDGES AND COUNTY

COMMISSIONERS and MARIA LONGORIA

BENEVIDES

usefeots. I hereby certify that all the parties to this Cause have been notified fthis Proposed
Intervention through the electronic filing system Rolando L. Rios

2

 
 Case 5:17-cv-00404-OLG Document 79 Filed 06/20/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, ET AL. PLAINTIFFS,
TRAVIS COUNTY, TRAVIS COUNTY JUDGE SARAH ECKHARDT, AND TRAVIS COUNTY SHERIFF SALLY HERNANDEZ
PLAINTIFF-INTERVENORS,
V.
STATE OF TEXAS, ET AL. DEFENDANTS.

§ § § § § CIVIL CASE NO. 5:17-CV-404-OLG § § § § § § § § §

PLAINTIFF-INTERVENOR-TRAVIS COUNTY’S APPLICATION FOR PRELIMINARY INJUNCTION Plaintiff-Intervenors, Travis County, Travis County Sheriff Sally Hernandez (in her official capacity) and Travis County Judge Sarah Eckhardt (in her official capacity) (Hereafter “Travis County Plaintiff Intervenors”) hereby join the Application for Preliminary Injunction filed in this cause by Plaintiffs City of El Cenizo, et al., and adopt by reference Plaintiffs’ declarations and Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction. [DKT 24]. Travis County Plaintiff-Intervenors offer the additional declaration of Travis County Sheriff Sally Hernandez, attached hereto as Ex. 1, to support Travis County Plaintiff Intervenors Application for Preliminary Injunction. Sheriff Hernandez has provided information about the particular harm she has suffered and her perspective as a target of the State’s legislation, SB 4.

Plaintiff-Intervenors’ Application for Preliminary Injunction
501279_1

1
EXHIBIT A

Case 5:17-cv-00404-OLG Document 79 Filed 06/20/17 Page 2 of 6
(See attached Declaration. Ex. 1). In her Declaration, Sheriff Hernandez addresses numerous issues related to SB 4 including the effect of SB 4’s detainer provision on the Travis County Jail.
As set forth in the Memorandum, [DKT 24] Plaintiffs have established that they and Travis County Plaintiff-Intervenors are likely to succeed on the merits of their claims that SB 4 violates the Constitution; that Plaintiffs and Travis County Plaintiff-Intervenors, will suffer irreparable harm if the Court does not enjoin SB 4; that the Defendants will suffer no harm if the Court preserves the status quo pending adjudication of this matter on the merits; that the balance of hardships tips strongly in favor of Plaintiffs and Travis County Plaintiff-Intervenors and that a preliminary injunction in this case advances the public interest.
So as to not to delay the proceeding, for these reasons, and the reasons detailed in Plaintiffs’ Memorandum in Support of Plaintiffs’ Application for Preliminary Injunction, Travis County Plaintiff-Intervenors respectfully request that the Court grant the Plaintiff Intervenors Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Hernandez’s Application for Preliminary Injunction. ///

Plaintiff-Intervenors’ Application for Preliminary Injunction
501279_1

2
EXHIBIT A

Case 5:17-cv-00404-OLG Document 79 Filed 06/20/17 Page 3 of 6

Dated: June __, 2017

Respectfully Submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX
By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley
Assistant County Attorney State Bar No. 19627575 sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney State Bar No. 11784853 tim.labadie@traviscountytx.gov ATTORNEYS FOR TRAVIS COUNTY PLAINTIFF-INTERVENOR

Plaintiff-Intervenors’ Application for Preliminary Injunction
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CERTIFICATE OF SERVICE
I hereby certify that on June, 12, 2017, the foregoing Opposed Motion to Intervene was served on the following attorneys of record in the manner stated, pursuant to Fed. R. Civ. P. 5(b):

ATTORNEYS FOR THE EL CENIZO PLAINTIFFS:
Via CM/ECF Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Via CM/ECF Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com
Via CM/ECF Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org

Via CM/ECF Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 esaldivar@aclutx.org
Via CM/ECF Cody H. Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwofsy@aclu.org
ATTORNEY FOR THE CITY OF SAN ANTONIO PLAINTIFFS:
Via CM/ECF Deborah Lynne Klein Office of the City Attorney, Litigation Division Frost Bank Tower 100 West Houston Street, 18th Floor San Antonio, TX 78205-3966 Deborah.klein@sanantonio.gov

Plaintiff-Intervenors’ Application for Preliminary Injunction
501279_1

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ATTORNEYS FOR MALDEF:
Via CM/ECF Nina Perales nperales@maldef.org Marisa Bono mbono@maldef.org Celina Y. Moreno cmoreno@maldef.org MALDEF 110 Broadway Street #300 San Antonio, TX 78205

ATTORNEYS FOR THE CITY OF AUSTIN:
Via EM/ECF Michael Siegel Michael.seigel@austintexas.gov Christopher Coppola Christopher.coppola@austintexas.gov ASSISTANT CITY ATTORNEYS City of Austin-Law Department P.O. Box 1546 Austin, Texas 78767-1546

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:
Via CM/ECF Jose Garza Michael Moran GARZA GOLANDO MORAN, PLLC 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205 garzpalm@aol.com michael@ggmtx.com
Via CM/ECF Jo Anne Bernal El Paso County Attorney 500 E. San Antonio 5th Floor, Suite 503 El Paso, TX 79901 joanne.bernal@ca.epcounty.com
ATTORNEYS FOR THE DEFENDANTS:
Via CM/ECF Andrew Drake Leonie, III David Jonathan Hacker David Austin Robert Nimocks Office of the Attorney General of Texas 209 W. 14th Street, 8th Floor Austin, TX 78701 Andrew.leonie@texasattorneygeneral.gov
Plaintiff-Intervenors’ Application for Preliminary Injunction 501279_1

Via CM/ECF Mimi Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 mimi@texascivilrightsproject.org
Via CM/ECF Efrén C. Olivares efren@texascivilrightsproject.org Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, TX 78516
David.hacker@oag.texas.gov Austin.nimocks@oag.texas.gov
Via CM/ECF Darren L. McCarty Office of the Attorney General of Texas 240 W. 14th Street, 7th Floor Austin, TX 78701 Darren.mccarty@oag.texas.gov
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Via CM/ECF Joel Stonedale Joel.stonedale@oag.texas.gov Attorney General of Texas P.O. Box 12548, Mail Code 009 Austin, TX 78711

And I hereby certify that a true and correct copy of the foregoing has been sent by other means, on the 12th day of June, 2017, to the following:

Andre I. Segura asegura@aclu.org American Civil Liberties Union 125 Broad Street New York, NY 10004

Spencer Amdur samdur@aclu.org American Civil Liberties Union 125 Broad Street New York, NY 10004

Andrea E. Senteno Law Office of Andrea E. Senteno 1016 16th Street, NW, Suite 100 Washington, DC 20036
Cecillia D. Wang Stephen Kang* American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 skang@aclu.org cwang@aclu.org *Admission Pro Hac Vice pending
Omar C. Jadwat ojadwat@aclu.org American Civil Liberties Union 125 Broad Street New York, NY 10004

Tanya G. Pellegrini tpellegrini@maldef.org Law Office of Tanya G. Pellegrini 1512 14th Street Sacramento, CA 95814
Thomas A. Saenz tsaenz@maldef.org Andrea Senteno asenteno@maldef.org 110 Broadway, Ste. 300 San Antonio, TX 78205
Martin Golando marty@ggmtx.com GARZA GOLANDO MORAN, PLLC 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205

Sherine E. Thomas Assistant County Attorney

Plaintiff-Intervenors’ Application for Preliminary Injunction
501279_1

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas, et al. Plaintiffs,
Travis County, et al. Plaintiff-Intervenors, v.
State of Texas, et al. Defendants.

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Civil Case No. 5:17-cv-404-OG

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DECLARATION OF SALLY HERNANDEZ

Background on Travis County and its Sheriff 1. My name is Sally Hernandez, and I am currently the Sheriff of Travis County,
Texas. I was first elected to this position in November 2016, and I assumed office on January 1, 2017. I have lived in Travis County since 1988. 2. I have over 31 years of law enforcement experience. Prior to my election as Sheriff, I served as Constable, Precinct 3, in Travis County, Texas. Prior to being elected Constable, I spent nearly 21 years as an Investigator at the Travis County District Attorney’s Office and I was Chief Investigator from 2005 to 2012. Before I went to work for the Travis County District Attorney, I worked for the Travis County Constable, Precinct 3, the Llano County Sheriff’s Office, and the City of Llano Police Department.

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3. I have a Bachelor’s Degree in Criminal Justice from St. Edwards University. 4. Travis County covers approximately 1,023 square miles in Central Texas. As of the
2010 census, Travis County had a population of approximately 1,024,266, and approximately 33.5% of that population identified as Hispanic or Latino. 5. The Travis County Sheriff’s Office, (“TCSO”), currently employs 338 law enforcement officers and 945 correctional officers. TCSO resources are already spread thin due to the geographic size of Travis County, the size of the Travis County Jail, and our rapidly growing population. Additionally, to punish Travis County elected officials for their opposition to laws like SB 4, Governor Abbott abruptly cancelled $1.5 million in grant funding already awarded to Travis County for the current budget year, and the Governor has made it clear that he plans to deny Travis County’s applications for grant funds for the next budget year as well.
Overview of SB 4 6. I have read Texas Senate Bill 4 ("SB 4"), and based on my extensive experience in
law enforcement, as well as my recent experience with respect to my adoption of a policy for TCSO that placed certain limits on TCSO’s participation in immigration enforcement, I have many concerns regarding this law. 7. I believe that all of Travis County is safer when everyone, regardless of immigration status, feels safe interacting with law enforcement, and that was a key component of, and widely discussed in, my campaign for Sheriff. I was elected to the office of Travis County Sheriff by nearly a 30-point margin.
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Adoption of TCSO Policy and Governor’s Response of the State 8. Based on my law enforcement experience, training, and my research into legal
authority, I issued a written policy setting forth the procedures by which TCSO would cooperate with ICE concerning ICE detainer requests and enforcement of federal immigration laws. Essentially, I will honor an ICE detainer request if the request is accompanied by a judicial warrant or court order for continued detention; if the individual is convicted of certain felonies and if under my assessment or belief it is appropriate to hold the individual to ensure that justice is served. 9. My policy was adopted before the legislature even began to consider SB 4, and was consistent with my promises to my constituents during my campaign and with existing law. When I released it on January 20, 2017, I announced that it would become effective on February 1, 2017. 10. Immediately after I introduced my policy concerning ICE detainers, Texas Governor Greg Abbott announced that he would withhold grant funding for Travis County unrelated to immigration in retaliation for my policy. Because I refused to concede to what I perceived as an unconstitutional demand that I revoke my policy, the State denied Travis County $1.5 million in previously awarded and allocated funds that would have supported programs that were not TCSO programs. The grant funds were designated for programs that were designed for victims of family violence, veterans, and other at-risk communities. Thus, the governor’s intent was clear: he wanted to punish all of Travis County for a decision that I made in the best interest of Travis County.
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11. Defunding ongoing programs for Travis County’s veterans and domestic violence victims was not enough. Governor Abbott then directed his office to refuse all future Travis County grant applications— even though they are unrelated to immigration. Travis County’s new grant applications for the 2017-2018 grant cycle have also been denied.
12. On February 2, 2017, Governor Abbott announced, via social media, that “Texas will hammer Travis County” because of its perceived “sanctuary” policies.
13. On or about February 6, 2017, Governor Abbott again announced that he would “hammer” Travis County. During an appearance on a radio talk show, Governor Abbott stated: I’m putting the hammer down. This is offensive what is going on in Austin, Texas. It’s actually the county, which is Travis County, which is the county seat of Austin, Texas. Travis County has declared what I call “sanctuary city policies.” They are no longer going to hold for ICE detainers, certain criminals—who are, in fact, criminals— they’ve been arrested before for very serious crimes. See, Andrew Eicher, Texas Gov. Abbott on Levin: ‘I’m Putting the Hammer Down’
on Sanctuary Cities, CNSNEWS.COM BLOG (Feb.6, 2017, 2:32 pm),
http://www.cnsnews.com/blog/andrew-eicher/texas-gov-abbot-levin-imputting-hammer-down-sanctuary-cities.
14. As part of his comments, Governor Abbott, without authority, threatened to send public officials to jail if they failed to comply with ICE detainer requests.
15. The State of Texas, by its enactment of SB 4, seeks to coerce me to engage in federal immigration enforcement with the threat of criminal prosecution, removal from office, and hefty civil penalties. Additionally, the State would coerce me into to abandoning my oath of office and the United States Constitution by requiring me to honor all ICE detainer requests. Given the need to ensure that my limited resources
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are dedicated to protecting my community against criminal activity, my policy allows me to use my experience and training to determine under what circumstances to comply with a detainer request and to consider whether I have authority to comply with the request. SB 4 would require me, as a County official, to honor all ICE detainer requests regardless of their legality or strain my resources. Additionally, SB 4 mandates that I enforce both formal and informal ICE detainer requests without permitting me to determine whether there is probable cause. Removing this discretion will put me in the position of possibly violating individuals’ 4th Amendment rights by detaining them without lawful justification or authority. SB 4 Undermines Public Safety by Making Victims Afraid to Report Crimes and
Witnesses Afraid to Cooperate in Prosecution of Those Crimes 16. The purpose of my policy is to keep my community safe, to protect and serve all
residents of Travis County, and to ensure that victims of crime continue to report those crimes, and witnesses to those crimes continue to cooperate with TCSO officers, regardless of their immigration status. 17. SB4 will harm the community policing efforts of my office. SB4 sends a message to immigrant communities that my deputies will be engaging in immigration enforcement and inquiring about immigration status. This inquiry, will in turn, frighten crime victims and witnesses. 18. I am highly concerned that crime victims and witnesses will no longer call TCSO to report crimes because they will be afraid that they or their family members will be questioned about their immigration status. By causing communities to distrust law enforcement officers, SB 4 will harm our ability to ensure public safety and will
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significantly impact TCSO’s ability to prosecute criminals and protect our community and specifically victims of crime. I believe that witnesses will be unwilling to participate in prosecution even with exceptions outlined in SB4. Incidents such as the arrest by ICE of an individual appearing in his case at the Travis County Courthouse on February 3, 2017, foster that fear and cause victims and witnesses to be afraid to participate in prosecution, and defendants to be afraid to appear in court to face the criminal charges against them.
ICE Detainer Requests 19. TCSO cooperation with other law enforcement entities begins when TCSO provides
information regarding every inmate booked into the Travis County Jail, including the FBI and ICE. When arrestees are booked into the Travis County Jail, as part of the booking process, they are asked about their citizenship in order to determine if a consulate should be notified. Arrestees are also fingerprinted, and an electronic fingerprint is automatically uploaded and shared with other local, state, and federal agencies, including ICE. 20. If ICE sends TCSO a detainer request accompanied by a criminal warrant or an order for detention signed by a judge, I detain those individuals for ICE. 21. However, ICE routinely sends detainer requests without a judicially reviewed warrant to TCSO. A detainer request notifies me that the Department of Homeland Security (“DHS”) has identified a person who is being held in the Travis County Jail and requests that TCSO maintain custody of the individual for a period of up to 48 hours
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(excluding Saturdays, Sundays, and holidays, 8 C.F.R. §287.7 (d)) beyond the time when the individual would otherwise be released from custody. 22. Courts, not sheriffs, determine how long an individual may be held in jail. Judges frequently authorize pre-trial release of defendants on bond, and I do not have discretion to continue to hold these defendants once the bond set by the judge is posted. When a defendant is convicted of a crime, the sentence imposed by the judge determines how long the defendant may be held in the jail. I do not participate in sentencing, nor do I have discretion to disobey an order of the court. 23. Unlike detentions that are reviewed and authorized by a court, an ICE detainer is merely a request by ICE that TCSO hold an individual beyond the release date authorized by the criminal courts at sentencing to afford ICE extra time to arrest the individual. Such detainers, issued by ICE on Form I-247A, are civil in nature. These detainers are easily distinguishable from criminal warrants issued by a judge, which I honor. ICE civil detainer requests are neither reviewed, nor issued, by a judge. SB 4 also requires me to honor informal ICE detainer requests, such as a verbal request where ICE does not use an I-247 form. 24. Numerous federal courts have held that the federal government cannot mandate local law enforcement officials to comply with such detainers without running afoul of the anti-commandeering provision of the Tenth Amendment. The courts have designated ICE detainers as merely requests that law enforcement agencies are not required to follow. 25. Because ICE detainers are requests, not mandatory orders, federal law imposes no consequences upon law enforcement agencies that disregard the detainer request.
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26. Under my policy, TCSO will comply with civil detainer requests from ICE if those requests are supported by judicial warrant or court order, or if those requests concern individuals alleged to have committed certain serious crimes or based on my own discretion and judgment that it is appropriate to hold an individual.
27. Based upon my experience and training, and the authority granted to me as the duly elected Sheriff of Travis County, I exercise discretion and judgment with respect to a detainer request in any individual case to ensure that justice is served and public safety can be maintained. This is how my policy strikes a balance between ICE detainer requests, TCSO resources, the constitutional rights of detainees, and the law enforcement needs of the Travis County community.
28. My policy ensures cooperation and does not restrict participation where it is mandated by 28 U.S.C. § 1373 and other federal laws while still being true to the mandates of the United States Constitution and preserving TCSO’s ability to maintain safe communities.
29. My policy allows me to manage TCSO resources in a manner that I believe makes the entire Travis County community safer.
30. Additional and unnecessary compliance with ICE detainer requests consumes limited resources. TCSO personnel must track and respond to requests. Further, inmates whom the courts have ruled to be eligible for release must be held in TCSO jails, cells that are often in short supply, and these inmates must be supervised and fed for additional time beyond court authorized periods of detention or custody.
31. My policy does not protect criminals or prevent people from being prosecuted for criminal acts.
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32. Although the rhetoric surrounding the consideration and passage of SB 4 asserted that I am currently violating the law by not honoring all ICE detainer requests, and that I will continue to violate the law, my current policy is compliant with all current state and federal laws, and I have stated repeatedly and publicly that I would always follow the law, whatever it is.
33. My policy is fully compliant with current state law as well as federal law and DHS guidance.
34. I intend to fully comply with SB 4 unless ordered otherwise by the courts. If SB 4 is allowed to take effect on September 1, 2017, I will comply with its provisions. SB4 is Vague and Impedes My Duties as the Travis County Sheriff
35. There are several provisions of SB 4 that are confusing and do not provide clear guidance on how to ensure that my deputies and I comply with its requirements. For example, the bill offers no guidance whatsoever regarding what actions or decisions would "materially limit" immigration enforcement or what is considered to be an informal policy or "pattern and practice" that limits immigration enforcement. I also do not understand what SB 4 prohibits regarding limitations on "assisting or cooperating with a federal immigration officer as reasonable or necessary."
36. I am concerned that because of the vague nature of the requirements of SB 4, in spite of my attempts to comply with the law, I will face civil penalties and/or removal from office for various acts that may be deemed to violate SB 4, including adopting, enforcing, or “endorsing” a written or verbal policy that is determined to “materially limit” the enforcement of immigration laws, especially in light of the fact that the Governor has voiced his intent to “hammer” Travis County at every opportunity
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possible. SB 4 does not provide me with adequate notice of those things I can and cannot do in order to fulfill my duties as Travis County Sheriff. 37. I am further concerned that SB 4 subjects me, as a law enforcement officer, to criminal sanctions for declining to honor any detainer request from ICE, as well as automatic removal from office if I am convicted of this new criminal offense. For example, given the lack of clarity regarding what constitutes a detainer request , I am also not sure whether I will need to comply with any and all requests from the federal government to detain individuals, including informal or verbal requests by immigration authorities to simply hold a person until they are able to determine whether to take custody. 38. My authority and discretion to administer the law and to ensure the public safety of the residents of Travis County is greatly diminished by SB 4. 39. SB 4 requires me to honor all detainer requests from ICE or face criminal charges and removal from office, eliminating my discretion to address Fourth Amendment concerns raised by detention of inmates without criminal warrants. 40. By forcing me to detain individuals without discretion, SB 4 places me in the position of having to choose whether to violate the Fourth Amendment rights of individuals in my custody or to personally face criminal penalties and removal from office. 41. Under federal law, ICE detainers are requests, not mandatory orders. SB 4, by adding article 2.251 to the Texas Code of Criminal Procedure, transforms these requests into mandatory orders, demanding that TCSO imprison, at our own expense, suspected “aliens subject to removal.” 42. SB 4 also takes away the discretion necessary for me to determine when my
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resources permit compliance with detainer requests from the federal government. 43. Under SB 4, I will no longer have the ability to decline detainer requests from the
federal government even when I believe I do not have the lawful authority to continue holding an individual—for example, when I understand that there is no justification for detaining the individual pursuant to the federal government's direction. Under SB 4, I also believe I can no longer take into account whether my office has the resources or the space to continue detaining an individual pursuant to a request from the federal government.
Required Immigration Enforcement Activities and Impact on TCSO 44. I fear that I will be required to divert critical and scarce law enforcement resources
from what I believe is necessary to ensure public safety for my constituents. SB 4 will require me to direct my deputies to engage in immigration enforcement, when, based upon my discretion and judgment and years in law enforcement, I believe that my limited resources should be focused on local priorities, such as responding to calls for service and investigating and preventing violent and property crimes. 45. For example, I do not know if the following decisions will subject me to liability or removal from office: limiting which staff members can engage in immigration enforcement or determining the percentage of time they may spend on such matters; deciding not to participate in a certain immigration task force with federal officials; or not to provide police backup to immigration agents for a particular immigration enforcement action; and preventing my deputies from investigating a person 's immigration status when such actions would divert them from other more critical tasks. I can imagine several other instances in which I will need to make decisions
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based on resources and best policing practices that could be seen as a limitation on my office's participation in immigration enforcement. 46. Pursuant to my policy, my office on occasion has declined requests from federal immigration authorities to assist them in the apprehension of individuals. I have done so partly because of my office's limited resources. Under SB 4, I will no longer be able to properly allocate my resources by deciding when to, and when not to, cooperate with such immigration efforts. Deputies Are Not Trained in Immigration Law or Immigration Enforcement 47. My deputies at TCSO also lack the training to enforce SB 4. My deputies are not trained in immigration law or immigration enforcement , and SB 4 does not provide for any training, additional guidance, or resources to ensure compliance with the requirements of SB 4. 48. My written policy currently instructs TCSO deputies not to inquire about a person’s immigration status in the jail, on patrol, or elsewhere. My policy further prohibits TCSO employees from using a suspicion about any person’s immigration status as a basis to initiate contact, question, detain, or arrest that person. Under SB 4, I can no longer prohibit my deputies from investigating anyone’s immigration status. 49. SB 4 states that a person employed by my office may not consider race, color, religion, language, or national origin while enforcing immigration laws except to the extent permitted by the U.S. Constitution or the Texas Constitution. I am concerned that any attempt that I might make to train or educate my employees regarding immigration status and the Federal and State Constitutions may be construed as
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endorsing or adopting a policy that “materially limits’ the enforcement of immigration laws. 50. Since my deputies are not trained in determining a person's immigration status, which in my experience is a very complicated determination, I believe that deputies will inevitably rely on race and ethnicity, and will unlawfully prolong detentions as a result of this practice. Even if trained, there will be an increased in the risk of these kinds of violations, and members of the community will still fear interaction with law enforcement. These are additional reasons that I adopted my policy. 51. Under SB4, I may not “adopt, enforce or endorse” a policy that prohibits or “materially limits” the enforcement of immigration laws. This vague language does not provide me with notice of which actions might violate SB4. For instance, it is unclear whether I can provide training on the unconstitutional use of race or ethnicity in law enforcement, i.e. profiling, because such training may be construed to “materially limit” the enforcement of immigration. It is unclear whether, once effective, SB 4 would allow me to testify in front of the legislature or even this Court without consequence. 52. Similarly, SB 4’s provision of SB 4 that a local entity “may not consider race, color, religion language or national origin while enforcing immigration law” has no true application and cannot be read in conjunction with the rest of the statute because TCSO does not have authority to enforce immigration law. This provision only adds to the vagueness of the statute. 53. In part because of its vagueness, SB4 requires me and other local entities to violate
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the United States Constitution and laws under threat of criminal prosecution, civil penalties, and/or removal from office. It will expose my office and Travis County to potential legal liabilities.
Restriction of Free Speech 54. SB 4 further requires me to unquestioningly agree with, and comply with, any
requests by immigration authorities or face fines up to $25,500 per day and removal from office. Indeed, SB 4 goes so far as to punish me if I attempt to comply with its edicts, but refuse to remain silent while doing so. 55. I have made numerous public statements during my campaign for, and tenure as, Sheriff regarding the participation of local law enforcement in immigration. I have publicly adopted a policy stating that the Travis County Sheriff s Office will not participate or cooperate in the arrests of individuals for civil immigration violations as permissible under current law. I have also publicly opposed having my deputies engage in additional immigration enforcement actions by SB 4 based on our limited resources and lack of training, and my concern that public safety is compromised when victims and witnesses are afraid to interact with local law enforcement for fear of their own deportation or the deportation of their friends or family members. Given SB 4's broad language, I do not know whether I will be subject to liability for making such policies and endorsements. It is even unclear whether testifying at trial or filing suit for clarification by the Courts would violate this statute. 56. The threats of prosecution, civil penalties and removal by Governor Abbott against me and Travis County are not hypothetical or imagined. Governor Abbott has made
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 Case 5:17-cv-00404-OLG Document 103 Filed 06/23/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

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CITY OF AUSTIN, et al.,

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Plaintiff-Intervenors,

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v.

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STATE OF TEXAS, et al.,

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Defendants.

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CIVIL ACTION NO. 5:17-cv-404-OLG

CITY OF AUSTIN’S NOTICE OF FILING DECLARATION OF TOM K. WONG IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

TO THE ORLANDO L. GARCIA, UNITED STATES DISTRICT JUDGE:

Plaintiff-Intervenor the City of Austin (“Austin”) hereby gives notice that it is filing the

Declaration of Tom K. Wong, attached herein as Exhibit 1, in support of its motion for preliminary

injunction (Doc. 57).

Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov

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CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 23rd day of June, 2017.
/s/ Michael Siegel MICHAEL SIEGEL

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

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CITY OF AUSTIN, et al.,

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Plaintiff-Intervenors,

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STATE OF TEXAS, et al.,

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Defendants.

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CIVIL ACTION NO. 5:17-cv-404-OLG

DECLARATION OF TOM K. WONG

Pursuant to 28 U.S.C. § 1746, I, Tom K. Wong, declare the following:

1. My name is Tom K. Wong and I am over eighteen years of age. I have personal

knowledge of and could testify in Court concerning the following statements of fact.

2. I am an Associate Professor with tenure at the University of California, San Diego

(UCSD). I work in the political science department, which is consistently ranked by U.S. News &

World Report as one of the top ten political science departments nationally. I am also the Director

of the International Migration Studies Program Minor at UCSD.

3. I am an expert on immigration politics and policy. I have written two peer-reviewed

books and several peer-reviewed journal articles, book chapters, and reports on these subjects. My

most recent book analyzes 31,193 roll call votes on immigration-related legislation in the United

States Congress from 2005 to present, which makes it the most comprehensive analysis to date on

the contemporary politics of immigration in the United States.

4. I received a Ph.D. in political science at the end of the 2010-2011 academic year. I

was a post-doctoral research fellow during the 2011-2012 academic year. I joined the political

science department at UCSD during the 2012-2013 academic year. I served as an advisor to the

Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 2 of 45
White House Initiative on Asian Americans and Pacific Islanders (WHIAAPI) during the 20152016 academic year, where I worked on the immigration portfolio.
5. I have attached a true and complete copy of my curriculum vitae as Exhibit A to this Declaration.
Senate Bill No. 4 Will Negatively Impact Public Health 6. I agree with the City of Austin’s Complaint in Intervention against the State of Texas (Doc. 37) that Senate Bill No. 4 will inflict harm on the local community in the City of Austin. 7. I agree with paragraph 55 in the City of Austin’s Complaint in Intervention against the State of Texas. The implementation of Senate Bill No. 4 will have negative public health implications for the City of Austin, not just for immigrants, but also for the American citizen children of undocumented parents. 8. I analyzed data on participation in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) in the City of Austin. The data was provided to me by the City of Austin and comes from Austin Public Health (previously known as the Austin/Travis County Health and Human Services Department), which is the public health authority for the City of Austin and Travis County, Texas. The data analyzed includes the total number of WIC participants by month and by year for fiscal years (FY) 2013 to present (up to May 2017). 9. These data show that WIC participation in the City of Austin in FY 2017 is estimated to be 21.9 percent lower than expected. 10. Data on WIC participation in the City of Austin from FY 2013 to FY 2016 are used to estimate WIC participation in the City of Austin for FY 2017. Using Ordinary Least Squares (OLS) regression analysis to statistically model WIC participation by month, and including year
2

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fixed–effects to adjust for year-to-year differences in WIC participation, an estimated 399,124 people would be expected to participate in WIC in the City of Austin in FY 2017. However, based on actual FY 2017 data up to May 2017, an estimated 311,486 people are expected to participate in WIC in the City of Austin in FY 2017. This difference of 87,638 fewer people means that WIC participation in FY 2017 is estimated to be 21.9 percent lower than expected.
11. Infants, meaning a baby, child, or foster child under the age of 1, accounted for 23.0 percent of WIC participants in the City of Austin from FY 2013 to FY 2016. As 87,638 fewer people are expected to participate in WIC in FY 2017, and as 23.0 percent of WIC participants are, on average, infants, this means that potentially 20,190 fewer infants will participate in WIC in FY 2017 than would otherwise be expected.
12. Children, meaning a child or foster child between the ages of 1 and 5, accounted for 49.3 percent of WIC participants in the City of Austin from FY 2013 to FY 2016. As 87,638 fewer people are expected to participate in WIC in FY 2017, and as 49.3 percent of WIC participants are, on average, children, this means that potentially 43,216 fewer children will participate in WIC in FY 2017 than would otherwise be expected.
13. Pregnant women accounted for 9.8 percent of WIC participants in the City of Austin from FY 2013 to FY 2016. As 87,638 fewer people are expected to participate in WIC in FY 2017, and as 9.8 percent of WIC participants are, on average, pregnant women, this means that potentially 8,571 fewer pregnant women will participate in WIC in FY 2017 than would otherwise be expected.
14. Figure 1 graphically depicts expected monthly participation in WIC in the City of Austin using data from FY 2013 to FY 2016 (top dotted line) and compares this to expected
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monthly participation in WIC in FY 2017 based on actual FY 2017 data up to May 2017 (bottom solid line).
15. In November 2016, actual WIC participation was 6,103 fewer people than would be expected based on the previous four fiscal years.
16. In December 2016, actual WIC participation was 6,735 fewer people than would be expected based on the previous four fiscal years.
17. In January 2017, actual WIC participation was 6,646 fewer people than would be expected based on the previous four fiscal years.
18. In February 2017, actual WIC participation was 7,160 fewer people than would be expected based on the previous four fiscal years.
19. In March 2017, actual WIC participation was 7,149 fewer people than would be expected based on the previous four fiscal years.
20. In April 2017, actual WIC participation was 7,575 fewer people than would be expected based on the previous four fiscal years.
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21. In May 2017, actual WIC participation was 7,437 fewer people than would be expected based on the previous four fiscal years.
22. The data are clear: WIC participation in FY 2017 is lower than expected. 23. According to the United States Department of Agriculture (USDA), which administers the WIC program, “WIC saves lives and improves the health of nutritionally at-risk women, infants, and children. The results of studies conducted by FNS [Food and Nutrition Service] and other non-government entities prove that WIC is one of the nation’s most successful and cost-effective nutrition intervention programs.”1 As the USDA summarizes:
• WIC reduces fetal deaths and infant mortality. • WIC reduces low birthweight rates and increases the duration of pregnancy. • WIC improves the growth of nutritionally at-risk infants and children. • WIC decreases the incidence of iron deficiency anemia in children. • WIC improves the dietary intake of pregnant and postpartum women and
improves weight gain in pregnant women. • Pregnant women participating in WIC receive prenatal care earlier. • Children enrolled in WIC are more likely to have a regular source of medical
care and have more up to date immunizations. • WIC helps get children ready to start school: children who receive WIC benefits
demonstrate improved intellectual development. • WIC significantly improves children’s diets. 24. Thus, the negative public health implications of lower than expected participation in WIC in the City of Austin includes the loss of these proven benefits.
1 https://www.fns.usda.gov/wic/about-wic-how-wic-helps. 5

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25. Lower than expected participation in WIC in the City of Austin in FY 2017 has been caused, in part, by changes in federal immigration enforcement policies, as well as by the role that the State of Texas has decided to play in federal immigration enforcement efforts. This is not to suggest, without uncertainty, that changes in immigration enforcement policies are causing every eligible individual to not participate in WIC in the City of Austin. Rather, the available evidence, including the lower than expected participation in WIC in the City of Austin in FY 2017, the “on the ground” perspectives of government agencies and non-profit organizations that serve the residents of the City of Austin, and the relevant peer-reviewed research, makes clear that the changing immigration enforcement landscape is a crucial determinant of decreased WIC participation in the City of Austin.
26. A Manager for Austin Public Health who is responsible for overseeing WIC in the City of Austin states, “Our staff has reported many anecdotal interactions with participants who are afraid to use WIC and other services due to fear that ICE or law enforcement will target the places where the services are provided for the express purpose of arresting undocumented immigrants.” I have attached a true and complete copy of the Declaration of Pete Atilano as Exhibit B.
27. Participants being “afraid to use WIC and other services due to fear” is consistent with the findings of a number of peer-reviewed studies. Research has demonstrated that fear of deportation can decrease the likelihood of receiving medical and dental care, prescription drugs,
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and eyeglasses,2 and can even inhibit help seeking among Latina and Asian immigrant women
who have suffered intimate partner abuse.3
28. Moreover, these negative public health implications are not limited to
undocumented immigrants. Peer-reviewed research also shows that fear of deportation decreases
Medicaid use among the eligible American citizen children of noncitizen parents.4
29. Peer-reviewed research also exists on the public health effects of state-level
immigration enforcement laws. For example, research on the public health implications of Arizona
Senate Bill 1070 shows that Mexican-origin adolescent mothers were less likely to take their
babies to the doctor following the passage of the law in 2010,5 and that the law negatively affected
the health-seeking behaviors among Hispanics/Latinos by increasing fear, decreasing resident’s
mobility, and by decreasing trust in public institutions.6 Similarly, peer-reviewed research on
Alabama House Bill 56 showed a decline in the use of county public health services among
undocumented immigrants, including services for communicable diseases and sexually transmitted
infections, even though the utilization of these services was allowed under the law.7
2 Berk, Marc L., and Claudia L. Schur. “The effect of fear on access to care among undocumented Latino immigrants.” Journal of Immigrant Health 3, no. 3 (2001): 151-156. 3 Bauer, Heidi M., Michael A. Rodriguez, Seline Szkupinski Quiroga, and Yvette G. Flores-Ortiz. “Barriers to health care for abused Latina and Asian immigrant women.” Journal of Health Care for the Poor and Underserved 11, no. 1 (2000): 33-44. 4 Vargas, Edward D. “Immigration enforcement and mixed-status families: The effects of risk of deportation on Medicaid use.” Children and Youth Services Review 57 (2015): 83-89. 5 Toomey, Russell B., Adriana J. Umaña-Taylor, David R. Williams, Elizabeth Harvey-Mendoza, Laudan B. Jahromi, and Kimberly A. Updegraff. “Impact of Arizona’s SB 1070 immigration law on utilization of health care and public assistance among Mexican-origin adolescent mothers and their mother figures.” American Journal of Public Health 104, no. S1 (2014): S28-S34. 6 Hardy, Lisa J., Christina M. Getrich, Julio C. Quezada, Amanda Guay, Raymond J. Michalowski, and Eric Henley. “A call for further research on the impact of state-level immigration policies on public health.” American Journal of Public Health 102, no. 7 (2012): 1250-1253. 7 White, Kari, Justin Blackburn, Bryn Manzella, Elisabeth Welty, and Nir Menachemi. “Changes in Use of County Public Health Services Following Implementation of Alabama’s Immigration Law.” Journal of Health Care for the Poor and Underserved 25, no. 4 (2014): 1844-1852.
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30. The inhibiting effects that the fear that “ICE or law enforcement will target the places where the services are provided” are also supported by peer-reviewed research that shows that trust in public institutions is an important determinant of help seeking and access to services among immigrants8, as well as by peer-reviewed research that demonstrates that immigration raids can have negative mental health implications.9
31. The Chief Executive Officer of CommUnityCare Health Centers (CUC), an Austinbased Federally Qualified Health Center that provides primary health care services without regard to an individual’s insurance status or ability to pay, states, “a new barrier has emerged for us and our patients to contend with — fear of immigration enforcement efforts. CUC has direct and anecdotal evidence that community members, including some of our patients, are currently delaying or foregoing needed medical care as a result of this fear barrier.” I have attached a true and complete copy of the Declaration of Jaeson T. Fournier as Exhibit C.
32. People delaying or foregoing needed medical care because of fear of immigration enforcement is also supported by peer-reviewed research. Peer-reviewed research on the effect of California’s Proposition 187 showed that patients with tuberculosis who feared that going to a physician would result in an immigration enforcement action were 4 times more likely to delay seeking care for more than 2 months.10 More recently, a study of the public health effects of the
8 Hacker, Karen, Jocelyn Chu, Carolyn Leung, Robert Marra, Alex Pirie, Mohamed Brahimi, Margaret English, Joshua Beckmann, Dolores Acevedo-Garcia, and Robert P. Marlin. “The impact of immigration and customs enforcement on immigrant health: perceptions of immigrants in Everett, Massachusetts, USA.” Social Science & Medicine 73, no. 4 (2011): 586-594. 9 Lopez, William D., Daniel J. Kruger, Jorge Delva, Mikel Llanes, Charo Ledón, Adreanne Waller, Melanie Harner et al. “Health Implications of an immigration raid: findings from a Latino community in the Midwestern United States.” Journal of Immigrant and Minority Health 19, no. 3 (2017): 702-708. 10 Asch, Steven, Barbara Leake, and Lillian Gelberg. “Does fear of immigration authorities deter tuberculosis patients from seeking care?” Western Journal of Medicine 161, no. 4 (1994): 373.
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local implementation of the 287(g) program found that Hispanic/Latino expectant mothers sought prenatal care later during pregnancy, and with lower quality care, than non-Hispanic/Latino expectant mothers.11
33. “No shows” for medical appointments because of deportation fears provide additional evidence of the negative public health implications that the implementation of Senate Bill No. 4 can have on the City of Austin. The Chief Executive Officer of El Buen Samaritano Episcopal Mission, which provides a range of services to approximately 10,500 people a year, including health services, indicates that no show rates for medical visits increased 10 percent between February and April 2017 compared to the same period last year and that “our clients are choosing to forgo critical health and basic needs services because they are afraid to leave their homes and risk being separated from their families. To them, the risk exceeds any support we can offer them.” I have attached a true and complete copy of the Declaration of Iliana Gilman as Exhibit D.
34. The Chief Executive Officer of People’s Community Clinic, a not-for-profit Federally Qualified Health Center headquartered in the City of Austin, indicates that no show rates have increased since December 2016 to an average of 18 percent and that, in addition to higher no show rates, “since December the clinic has experienced lower utilization rates. Where typically, clinic-wide utilization of available appointments runs between 94% and 97%, there has been a drop in patients making appointments for care […] If, out of fear of deportation, parents avoid bringing children, including American citizen children, into the clinic for regular pediatric care
11 Rhodes, Scott D., Lilli Mann, Florence M. Simán, Eunyoung Song, Jorge Alonzo, Mario Downs, Emma Lawlor et al. “The impact of local immigration enforcement policies on the health of immigrant Hispanics/Latinos in the United States.” American Journal of Public Health 105, no. 2 (2015): 329-337.
9

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including recommended immunizations, the likelihood or spreading preventable contagious diseases increases and the public’s health is put in jeopardy.” The Declaration of Regina Rogoff was previously filed in this case as Document 57-1 at 20-22.
35. In summary, I agree with paragraph 55 in the City of Austin’s Complaint in Intervention against the State of Texas. In my evaluation, the available evidence makes clear that the implementation of Senate Bill No. 4 will have negative public health implications for the City of Austin, not just for immigrants, but also for the American citizen children of undocumented parents. These negative public health implications include: fewer infants, children, and women participating in WIC, which is a program that “saves lives and improves the health of nutritionally at-risk women, infants, and children”; the decreased likelihood that some will receive needed health care and related services, which can negatively impact the American citizen children of undocumented parents; the delaying or foregoing of urgent medical care; and the lower utilization of critical public health services.
Senate Bill No. 4 Will Negatively Impact Educational Achievement 36. I agree with paragraph 54 in the City of Austin’s Complaint in Intervention against the State of Texas. The implementation of Senate Bill No. 4 will have negative public education implications for the City of Austin, not just for immigrants, but also for the American citizen children of undocumented parents. 37. I analyzed data on school attendance in the City of Austin. The data was provided to me by the City of Austin and comes from the Austin Independent School District (ISD). The data analyzed includes the total number of students enrolled at each school in Austin ISD by grade level and the total number of official absences at each school by grade level. The data also include the Hispanic/Latino percentage of students enrolled at each school. The data analyzed covers the
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period from February 13-17, 2017 (henceforth referred to as 2017), which was the school week immediately following the “Operation Cross Check” immigration enforcement operation by ICE in Travis County, and February 15-19, 2016 (henceforth referred to as 2016), which was the comparable week during the previous academic year.
38. These data show that official absences increased by 152 percent during the week of 2017 when compared to the comparable week in 2016, increasing from 14,869 to 37,432 official absences.
39. These data also show that the Hispanic/Latino percentage of students enrolled at each school is highly statistically significantly related to official absences in 2017, but not in 2016.
40. Data on school attendance in the City of Austin are used to model official absences at each school in Austin ISD. Using Ordinary Least Squares (OLS) regression analysis to statistically model official absences at each school in Austin ISD as a function of the Hispanic/Latino percentage of students enrolled at each school, controlling for the total number of students at each school, and including grade level fixed-effects to control for differences in absences by grade level, shows that the Hispanic/Latino percentage of students enrolled at each school is highly statistically significantly related to official absences in 2017, but not in 2016.
41. Table 1 and Table 2 below shows that the results are robust to several different model specifications. Table 1 reports the results for 2017. Model 1 shows that the bivariate relationship between the Hispanic/Latino percentage of students enrolled at each school is statistically significantly related official absences at each school. Model 2 shows that the relationship between the Hispanic/Latino percentage of enrolled students and absences remains statistically significant when controlling for the total number of students at each school. Model 3 shows that the relationship between the Hispanic/Latino percentage of enrolled students and
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Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 12 of 45

absences remains statistically significant when controlling for the total number of students at each school and when accounting for differences in absences by grade level. Model 4 shows that the relationship between the Hispanic/Latino percentage of enrolled students and absences remains statistically significant when controlling for the total number of students at each school, when accounting for differences in absences by grade level, and when also excluding the smallest (less than 10th percentile in total number of students) and largest (greater than the 90th percentile in total number of students) schools. Table 2 reports the results for 2016. As the table shows, in 2016, the Hispanic/Latino percentage of students enrolled at each school is not statistically significantly related to official absences.

2017

Model 1 Model 2 Model 3 Model 4

% Hispanic/Latino # of Students in School

.185*** (.036)

.168*** (.038) -.001 (.000)

.125*** (.031) -.002*** (.000)

.137*** (.013) -.000 (.000)

Grade-Level Fixed Effects

Yes

Yes

Observations

121

121

121

106

R2

.178

.192

.482

.661

*** significant at the < .001 level; ** significant at the .01 level; * significant at the .05 level

2016

% Hispanic/Latino # of Students in School

Model 5 Model 6 Model 7 Model 8

.016 (.016)

.012 (.016) -.000 (.000)

-.000 (.013) -.001*** (.000)

.000 (.009) -.001* (.000)

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Grade Level Fixed Effects

Yes

Yes

Observations

121

121

121

106

R2

.009

.019

.371

.513

*** significant at the < .001 level; ** significant at the .01 level; * significant at the .05 level

42. Figure 2 graphically depicts the relationship between the Hispanic/Latino percentage of students enrolled at each school and official absences at each school in 2017 and in 2016. The solid circles represent each school in 2017. The solid line for 2017, which increases as the Hispanic/Latino percentage increases, reflects the statistically significant relationship between the Hispanic/Latino percentage of students enrolled in each school and official absences at each school. The hollow circles represent each school in 2016. The flat dotted trend line for 2016 reflects the statistically insignificant relationship between the Hispanic/Latino percentage of students enrolled in each school and official absences at each school.

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43. The data are clear: official absences increased during February 13-17, 2017, which was the school week immediately following the “Operation Cross Check” immigration enforcement operation by ICE in Travis County, compared to February 15-19, 2016, which was the comparable week during the previous academic year. Moreover, school absences increased with the size of the Hispanic/Latino percentage of students enrolled in each school.
44. According to the Department of Research and Evaluation at Austin ISD, school attendance is a predictive criterion of graduation from high school and enrollment in postsecondary education institutions. Moreover, in their evaluation of the graduating class of 2014, Austin ISD found that 56 percent of college-going graduates who enrolled in four-year postsecondary education institutions attended a local university within 60 miles of Austin. A full 86 percent stayed in the State of Texas.
45. Thus, the negative public education consequences of decreased school attendance potentially include lower graduation rates and a decline in the City of Austin’s, as well as the State of Texas’s, college-educated and college-trained workforce.
46. Funding for Texas public schools is also determined, in part, by school attendance. 47. Thus, the negative public education consequences of decreased school attendance also potentially include decreased public education funding for Austin ISD. 48. The increase in official absences across Austin ISD schools during February 1317, 2017 compared to February 15-19, 2016 was caused, in part, by the Operation Cross Check immigration enforcement operation conducted by ICE beginning February 6, 2017. This is not to suggest, without uncertainty, that the ICE raids caused every single official absence during the week of February 13-17, 2017. Rather, the available evidence, including the statistically significant relationship between the Hispanic/Latino percentage of students enrolled in each school and
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official absences in each school in 2017, the statistically insignificant relationship between the Hispanic/Latino percentage of students enrolled in each school and official absences in each school in 2016, the “on the ground” perspectives of Austin ISD staff, news media stories, and the relevant peer-reviewed research, makes clear that the immigration enforcement actions were a crucial determinant of decreased school attendance during the week of February 13-17, 2017.
49. The Vice President of Education Austin, the labor union for certified and classified employees of the Austin Independent School District states, “I have seen the effect of the immigrant raids and anti-immigrant policies on schools. Many of our members have shared their concerns about how students are afraid of attending schools and being separated from their parents. It is extremely difficult for a teacher to teach a student how to read and write, when their parents are living in fear.” Moreover, “many mothers are depressed and do not take their children to school because they are afraid that they will be stopped by ICE agents or the police.” I have attached a true and complete copy of the Montserrat Garibay Declaration as Exhibit E.
50. Peer-reviewed research supports how fear of separation due to deportation can have far-reaching and negative impacts on undocumented families, as well as on mixed-status families comprised of American citizen children and undocumented parents. Research shows that children in mixed-status families face greater barriers to educational success12 and that the American citizen children of undocumented parents often share the risks and limitations associated with
12 Mapp, Susan, and Emily Hornung. “Irregular immigration status impacts for children in the USA.” Journal of Human Rights and Social Work 1, no. 2 (2016): 61-70.
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undocumented immigration status.13 Research also finds that the stress caused by immigration
raids can sap the attention of students and thus affect their academic performance.14
51. News media stories also support the causal effect that immigration enforcement
actions can have on school attendance.
52. According to a March 23, 2017 New Yorker article, which is titled, “After an
Immigration Raid, a City’s Students Vanish”:
On February 15th, Immigration and Customs Enforcement (ICE) officers conducted a raid in Las Cruces, arresting people at a trailer park on the outskirts of town. The raid came a few weeks after President Trump signed two executive orders, signaling his plans to fulfill a campaign promise of cracking down on undocumented immigrants. Rumors spread that there were further raids planned, though none took place. On February 16th, a Thursday, Las Cruces’s public schools saw a sixty-per-cent spike in absences compared to the previous week — twentyone hundred of the district’s twenty-five thousand students missed school. Two thousand students stayed away again the next day. Attendance returned to normal the following week, which made the two-day rash of absences all the more pronounced.
53. According to a February 16, 2017 article from a local Cincinnati, Ohio news station,
which is titled, “Nationwide Immigrant Protests Spotty in Cincinnati”:
Attendance dropped at Roberts Academy, Dater High and other schools with large immigrant families, particularly Hispanics. “You know, it’s not young folks playing hooky,” said Leo Pierson DeCruz, of Northside. He sensed some confusion and fear among local Latino families about what could happen. “Some folks thought maybe that ICE would be doing some raids today.”
54. According to February 26, 2016 article from the Washington Post, which is titled,
“School system reassures immigrant families fearful of being deported,”
The superintendent of Arlington Public Schools is seeking to reassure immigrant families who are afraid to send their children to school amid threats of deportation
13 Enriquez, Laura E. “Multigenerational Punishment: Shared Experiences of Undocumented Immigration Status Within Mixed‐Status Families.” Journal of Marriage and Family 77, no. 4 (2015): 939-953. 14 Capps, Randolph, Rosa Maria Castaneda, Ajay Chaudry, and Robert Santos. “Paying the price: The impact of immigration raids on America’s children.” (2007).
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[…] Prince George’s school officials said that attendance among Latino students dropped as parents kept their children home from school because they feared it could lead to their deportation. “I am deeply troubled by the fear and uncertainty that exists in so many of our school communities as a result of the actions of the Department of Homeland Security,” Maxwell said in his January statement. “We urge federal authorities to see schools and other public gathering places as areas where no enforcement activities should take place and ask them to strongly consider the devastating impacts of their actions on the academic, social and emotional well-being of all of our students.” 55. In summary, I agree with paragraph 54 in the City of Austin’s Complaint in Intervention against the State of Texas. In my evaluation, the available evidence makes clear that the implementation of Senate Bill No. 4 will have negative public education implications for the City of Austin, not just for immigrants, but also for the American citizen children of undocumented parents. These negative public education implications include: decreased school attendance, which can negatively impact school performance and graduation rates; increased educational barriers for the American citizen children of undocumented parents; as a large percentage of college-going graduates from Austin ISD attend college within 60 miles of Austin, and as an even larger percentage attend college in the State of Texas, poorer school performance and lower graduate rates can also negatively impact the city’s and the state’s college-educated and college-trained workforce; and because funding for Texas public schools is determined, in part, by school attendance, decreased school attendance caused by fear of deportation can mean decreased public education funding for Austin ISD.
Senate Bill No. 4 Will Negatively Impact Public Safety 56. I agree with paragraph 53 in the City of Austin’s Complaint in Intervention against the State of Texas. The implementation of Senate Bill No. 4 will have negative public safety
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implications for the City of Austin, not just for immigrants, but also for the American citizen children of undocumented parents.
57. I analyzed an ICE dataset (henceforth referred to as the FOIA data) on sanctuary jurisdictions obtained via a Freedom of Information Act request filed by the Immigrant Legal Resource Center in order to examine the relationship between sanctuary policies and a broad range of social and economic indicators, including crime.
58. These data show that crime is statistically significantly lower in sanctuary counties compared to comparable nonsanctuary counties. Moreover, economies are stronger in sanctuary counties — from higher median household income, less poverty, and less reliance on public assistance to higher labor force participation, higher employment-to-population ratios, and lower unemployment.
59. The FOIA data include 2,492 counties that ICE codes by their “Current Detainer/Notification Acceptance Status.” These counties account for 92 percent of the total population in the United States and 95 percent of the total foreign-born population in the United States. Of the 2,492 counties coded by ICE, 608 are identified as being sanctuary jurisdictions, meaning jurisdictions that are not willing to accept detainers. Using the FOIA data, the analysis begins by comparing all sanctuary counties to all nonsanctuary counties. Data on crime come from the FBI Uniform Crime Reporting Program. Data on social and economic indicators come from the 2015 American Community Survey (ACS) 5-Year Estimates. After a simple comparison of means, the analysis pushes further by using coarsened exact matching (CEM) to statistically match sanctuary counties to comparable nonsanctuary counties. CEM is a method for improving causal inferences that estimates the sample average treatment effect on the treated, or SATT. CEM statistically matches sanctuary counties to comparable nonsanctuary counties; compares
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differences in outcomes between sanctuary counties and the matched nonsanctuary counties;

allows us to evaluate these differences while controlling for differences in total population, the

foreign-born percentage of the population, and the percentage of the population that is

Hispanic/Latino; and then uses the results of the analysis to estimate the effect that being a

sanctuary county has on crime and the other outcomes of interest.

60. The data are clear: crime rates are lower and economies are stronger in sanctuary

counties compared to comparable nonsanctuary counties.

61. Table 3 reports the results of the analysis. SATT refers to the sample average

treatment effect on the treated. SE refers to the standard error of the estimate. A p-value of less

than .05 is considered statistically significant. As the table shows, there are 35.5 fewer crimes per

10,000 people in sanctuary counties compared to comparable nonsanctuary counties.

Crime Rate per 10,000 people Median Household Income Median Household Income — White, non-Latino Median Household Income — Latino Poverty Poverty — White, non-Latino Poverty — Latino Food Stamps/SNAP SSI Children Under 18 in Households w/Public Assistance Labor Force Participation Labor Force Participation — White, non-Latino Labor Force Participation — Latino Employment-to-Population Ratio Employment-to-Population Ratio — White, non-Latino Employment-to-Population Ratio — Latino Unemployment Unemployment — White, non-Latino Unemployment — Latino

SATT -35.5 4352.7 2836.1 1328.9 -2.337 -1.361 -2.966 -2.559 -0.879 -4.967 2.456 2.546 1.241 3.103 3.165 0.939 -1.056 -0.829 1.015

SE 5.9 575.1 568.3 736.4 0.306 0.222 0.721 0.296 0.127 0.548 0.345 0.339 0.741 0.369 0.359 0.733 0.159 0.129 0.425

p-value 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.094 0.000 0.000 0.200 0.000 0.000 0.017

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62. Moreover, there is no other evidence that I am aware of that meets rigorous social science research standards that shows that crime is lower when local law enforcement engages in federal immigration law enforcement.
63. Rather, peer-reviewed research shows that there is no statistically significant relationship between local law enforcement engaging in federal immigration law enforcement efforts and crime rates.15 Moreover, research also shows that policies like Senate Bill No. 4 can undermine safety by making undocumented immigrants less likely to report crimes to law enforcement, including undocumented women who are victims of violent crimes16 and undocumented women who are victims of sexual assault or domestic violence.17
64. In summary, I agree with paragraph 53 in the City of Austin’s Complaint in Intervention against the State of Texas. In my evaluation, the available evidence makes clear that the implementation of Senate Bill No. 4 will have negative public safety implications for the City of Austin, not just for immigrants, but for all residents of the City of Austin. These negative public safety implications include: undocumented immigrants being less likely to report crimes; undocumented women who are victims of violent crimes being less likely to report crimes; undocumented women who are victims of sexual assault or domestic violence being less likely to
15 Miles, Thomas J., and Adam B. Cox. “Does immigration enforcement reduce crime? Evidence from secure communities.” The Journal of Law and Economics 57, no. 4 (2014): 937-973. See also, Treyger, Elina, Aaron Chalfin, and Charles Loeffler. “Immigration Enforcement, Policing, and Crime.” Criminology & Public Policy 13, no. 2 (2014): 285-322. 16 Messing, Jill Theresa, David Becerra, Allison Ward-Lasher, and David K. Androff. “Latinas’ perceptions of law enforcement: Fear of deportation, crime reporting, and trust in the system.” Affilia 30, no. 3 (2015): 328-340. 17 Vishnuvajjala, Radha. “Insecure communities: how an immigration enforcement program encourages battered women to stay silent.” Boston College Journal of Law & Social Justice 32, no. 1 (2011).
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Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 21 of 45 report crimes; and that local law enforcement engaging in federal immigration enforcement efforts has no measurable effect on decreasing crime.
I declare under penalty of perjury pursuant to 28 U.S.C. §1746 that the foregoing is true and correct.
Executed in Travis County, Texas, on the 23rd day of June, 2017. ______________________________________ TOM K. WONG
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EXHIBIT A

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Wong: CV (6/2017)

TOM K. WONG, PH.D.
3408 Bancroft St. San Diego, CA 92104 | Google Voice: (619) 354-9913 Email: tomkwong@ucsd.edu |Website: www.tomwongphd.com | bit.ly/tomkwong_citations

POSITION 2012 -

ASSOCIATE PROFESSOR (BEGINNING JULY 2017), POLITICAL SCIENCE DIRECTOR, INTERNATIONAL MIGRATION STUDIES PROGRAM MINOR University of California, San Diego

2016

ADVISOR WHITE HOUSE INITIATIVE ON ASIAN AMERICANS AND PACIFIC ISLANDERS

EDUCATION 2011

PH.D. IN POLITICAL SCIENCE University of California, Riverside Focus in Comparative Politics, International Relations, and Research Methods Dissertation: Immigration Control in the Age of Migration

2005

B.A. IN POLITICAL SCIENCE University of California, Riverside Focus in International Relations Magna Cum Laude

BOOKS
(2) Tom K. Wong. 2016. The Politics of Immigration: Partisanship, Changing Demographics, and American National Identity. Oxford University Press. NPR, ABC News/Yahoo.com, LA Times, Univision, Monkey Cage

(1) Tom K. Wong. 2015. Rights, Deportation, and Detention in the Age of Immigration Control. Stanford University Press. Oxford Law blog

JOURNAL ARTICLES (6) Tom K. Wong and Hillary Kosnac. 2017. “Does the Legalization of Undocumented
Immigrants in the US Encourage Unauthorized Immigration from Mexico? An Empirical Analysis of the Moral Hazard of Legalization,” International Migration
(5) Tom K. Wong and Angela Garcia. 2016. “Does Where I Live Affect Whether I Apply? The Contextual Determinants of Applying for Deferred Action for Childhood Arrivals (DACA),” International Migration Review vol. 50 no. 3: 699-727.
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Wong: CV (6/2017)
C-Span, Associated Press
(4) Tom K. Wong, Donald Kerwin, Jeanne M. Atkinson, and Mary Meg McCarthy. 2014. “Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey,” Journal of Migration and Human Security vol. 2 no 4: 287-304. NBC News.com
(3) Tom K. Wong. 2014. “The Politics of Interior Immigration Enforcement,” California Journal of Politics and Policy vol. 6 no 3.
(2) Tom K. Wong and Justin Gest. 2013. “Organizing Disorder: Indexing Migrants’ Rights and International Migration Policy,” Georgetown Immigration Law Journal vol. 28 no 1.
(1) Tom K. Wong. 2012. “The Politics of Interior Immigration Control in the United States: Explaining Local Cooperation with Federal Immigration Authorities,” Journal of Ethnic and Migration Studies vol. 38 no. 5.
BOOK CHAPTERS (4) Tom K. Wong. 2014. “Conceptual Challenges and Contemporary Trends in Immigration
Control.” In Controlling Immigration: A Global Perspective (3rd edition), edited by James F. Hollifield, Philip Martin, and Pia Orrenius. Stanford University Press.
(3) Tom K. Wong. 2014. “Nation of Immigrants or Deportation Nation? Analyzing Deportations and Returns in the United States, 1892-2010.” In The Nation and Its Peoples: Citizens, Denizens, and Migrants, edited by John S.W. Park and Shannon Gleeson. Routledge.
(2) James F. Hollifield and Tom K. Wong. 2014. “The Politics of International Migration: How Can We `Bring the State Back In’?” In Migration Theory: Talking Across Disciplines (3rd edition), edited by Caroline B. Brettell and James F. Hollifield. Routledge.
(1) Karthick Ramakrishnan and Tom K. Wong. 2010. “Partisanship, Not Spanish: Explaining Municipal Ordinances Affecting Undocumented Immigrants.” In Taking Local Control: Immigration Policy Activism in U.S. Cities and States, edited by Monica W. Varsanyi. Stanford University Press.
WORKS UNDER REVIEW/IN PROGRESS (SELECTED LIST) Tom K. Wong and Justin Gest. “Looks Skin Deep: Do Immigrant Legislators Better Represent
Immigrant Interests?” under review with the American Political Science Review
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Wong: CV (6/2017)
Tom K. Wong Angela Garcia, and Carolina Valdivia. “The Political Incorporation of Undocumented Youth.” under review with Social Problems
Tom K. Wong and Carolina Valdivia. “In Their Own Words: A Nationwide Survey of Undocumented Millennials,” Working Paper 191, Center for Comparative Immigration Studies. New York Times, Washington Post, The Hill, La Opinión, Univision, NBC News.com
Tom K. Wong. “President Obama’s Executive Actions on Immigration and the 2016 Presidential Election.” This project uses a nationally representative survey of Latinos (n = 820) and Asians (n = 950) fielded in late April and early May 2016 to analyze how knowing someone who is undocumented and potentially eligible for legal status via programs like DAPA affects the civic engagement of Latino and Asian citizens. The survey was fielded by GfK and commissioned w/Dan Hopkins and Efren Perez.
Tom K. Wong. “Mobilizing Low-Propensity Voters of Color.” This research includes 4 voter mobilization experiments utilizing direct voter contact run during the 2016 presidential primary elections and several more planned for the 2016 presidential general elections. These experiments analyze interventions designed to convey the urgency of voting to Latino, Asian, and immigrant-origin voters using the current political discourse around immigration policy and refugee admissions.
Tom K. Wong. “Governing Diversity.” This project uses survey and lab experiments to examine what citizenship means in the context of the unprecedented demographic changes that are reshaping American society and the electorate.
w/Justin Gest. “International Migrants Bill of Rights.” This project aims to create crossnational indicators on government respect for and recognition of the human rights of migrants. Funding from the World Bank (obtained by Gest) will be used to pilot a 58 item index across 5 countries.
w/May Sudhinaraset (UCSF Department of Epidemiology and Biostatistics). “Undocumented Status and Health.”
REPORTS Tom K. Wong. 2017. The Effects of Sanctuary Policies on Crime and the Economy.
Washington, D.C.: Center for American Progress.
Tom K. Wong et al. 2015. Results from a Nationwide Survey of DACA Recipients Illustrate the Program’s Impact. Washington, D.C.: Center for American Progress.
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Wong: CV (6/2017)
Tom K. Wong. 2014. Statistical Analysis Shows that Violence, Not Deferred Action, Is Behind the Surge of Unaccompanied Children Crossing the Border. Washington, D.C.: Center for American Progress.
Tom K. Wong et al. 2013. Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals (DACA). Washington, D.C.: Center for American Progress. C-Span, Associated Press
OTHER PUBLICATIONS
James F. Hollifield and Tom K. Wong. 2012/2013. “International Migration: Cause or Consequence of Political Change,” Migration and Citizenship: Newsletter of the American Political Science Association Organized Section on Migration and Citizenship vol. 1 no. 1.
Tom K. Wong. 2012. “The Commission on Wartime Relocation and Internment of Civilians.” In The Encyclopedia of Transitional Justice, edited by Lavina Stan and Nadya Nedelsky. Cambridge University Press.
Karthick Ramakrishnan, Dino Bozonelos, Louise Hendrickson, and Tom K. Wong. 2008. “Inland Gaps: Civic Inequalities in a High Growth Region,” Policy Matters vol 2 no 1.
Karthick Ramakrishnan and Tom K. Wong. 2007. “Immigration Policies Go Local: The Varying Responses of Local Governments to Undocumented Immigration.” Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity. Working Paper Series on Immigration.
RESEARCH GRANTS (AS A FACULTY MEMBER)
• $22,500, UCSD USMEX Fellowship, 2016-2017 • $16,000, UCLA Institute for Research on Labor and Employment, 2015-2016 • $365,000, MacArthur Foundation, 2015-2017 (partially awarded, terminated after the DAPA
program was enjoined by the Supreme Court) • $25,000, UCSD Frontiers of Innovation Scholars Program Grant, 2015-2016 • $15,000, UCSD Faculty Career Development Program Grant, 2014-2015 • $30,000, Unbound Philanthropy, 2014 • $100,000, Department of Homeland Security, 2013 • $30,000, Center for American Progress, 2013 • $10,000, UCSD Center for International, Comparative, and Area Studies Grant, 2013 • $10,000, UCSD Academic Senate, 2013
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• $1,500, UCSD Diversity, Equity, and Inclusion Grant, 2013

TEACHING AT UCSD
• Diversity, Equity, and Inclusion Teaching Award, 2014-2015 • The Politics of Immigration (upper-division, 280 students) • International Human Rights Law: Rights of Migrants (upper-division, 150 students) • The Politics of Multiculturalism (upper-division, 100 students) • Immigration Politics and Policy (graduate seminar, 4 students) • Undergraduate Honors Seminar (upper-division, 15 students)

INVITED PRESENTATIONS (SELECTED)

2016 | 2015 |

“Immigrant Integration and the Obama Administration: DACA, DAPA, and Implications for the 2016 Presidential Election.” Presentation at the UCLA Institute for Research on Labor and Employment, Los Angeles, California, April 28, 2016.
“Mobilizing Low-Propensity Voters of Color: Towards an Electorate That Reflects a Changing America.” Presentation at the Asian Americans Advancing Justice conference, Los Angeles, California, March 31, 2016.
“Immigrants in American Society.” Presentation at KPBS San Diego, California, March 21, 2016.
“Immigration Policy.” Presentation to Mi Familia Vota, Riverside, California, January 14, 2016.
"The European Refugee Crisis." Center for Comparative Immigration Studies, the European Studies Program, the Lifelong Learning Program of the EU, and the Scholars Strategy Network. October 27, 2015.
"U.S. Immigration Politics and the 2016 Presidential Election." Presentation at the Wilson Center, Washington D.C. October 26, 2015.
"The Political Incorporation of Undocumented Youth." Presentation at the "Challenging Borders" conference, UC Riverside. October 23, 2015.

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Wong: CV (6/2017)

2014 |

"The Consequences of Inequality: Why Does it Matter and How." Symposium on Capital in the 21st Century with Thomas Piketty, UC San Diego. October 22, 2015.
"U.S. Immigration Politics and Policy." Presentation at the United States Consulate in Tijuana. October 13, 2015.
"UC National Summit on Undocumented Students.” UC Office of the President. May 7-8, 2015.
“Irregular Migration.” Presentation at the “Politics and Policies of International Migration: Europe and the U.S.” conference, Université Libre de Bruxelles, Belgium, April 28-29, 2015.
“Opportunities and Limits of the Executive Actions Proposed by President Obama.” Presentation at the Mexican Ministry of Foreign Affairs, Mexico City, Mexico, April 13-14, 2015.
“Administrative Relief Implementation and Impact Project.” Presentation at the Center for Migration Studies, New York, NY, March 25, 2015.
“Research Roundtable.” Presentation at the “Ready America: Implementing Immigration Action” conference, Washington DC, February 9-11, 2015.
“Insights from Implementing DACA for Administrative Relief.” National Immigrant Integration Conference, Los Angeles, CA, December 16, 2014.
“Deferred Action for Childhood Arrivals.” American Immigration Council (AIC), Washington, D.C., November 7, 2014.
“Immigration Policy and the November 2014 Midterm Elections.” California Immigrant Policy Center (CIPC), October 29, 2014.
“The Many Paths to Legal Status: Results and Implications from the PERSON Survey.” Presentation to the Center for Migration Studies (CMS), New York, NY, September 29, 2014.
“The Congressional Politics of Interior Immigration Enforcement.” Presentation at the German Historical Institute workshop on “Migration During Economic Downturns,” Washington, D.C., April 4-5, 2014.

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Wong: CV (6/2017)

2013 | 2012 |

“Mapping DACA Renewals.” Presentation to U.S. Citizenship and Immigration Services (USCIS), March 13, 2014.
“Latino Politics: Left, Right, or Down the Middle?” Presentation at the Annual Hispanic Radio Conference, San Diego, CA, March 10, 2014.
“Indexing Attrition Through Enforcement Policies.” Presentation at the “Causes and Consequences of Immigration and Citizenship” conference, Berlin, Germany, June 26-27, 2014.
“Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals.” Presentation at the Center for Comparative Immigration Studies (CCIS), San Diego, CA, October 2, 2013.
“DACA Turns 1.” Presentation at the Center for American Progress, Washington, D.C., August 15, 2013. [Televised on CSPAN]
“The Prospects for Comprehensive Immigration Reform.” Presentation at the Mexican Ministry of Foreign Affairs, Mexico City, Mexico, August 12, 2013.
“A Look at the Stats: How Will Congressional Representatives Vote on Comprehensive Immigration Reform?” Presentation at the UC Berkeley “Changing Face of America” conference, Berkeley, CA, May 3, 2013.
“Will Comprehensive Immigration Reform Pass? Predicting Legislative Support and Opposition to CIR.” Presentation at the Center for Comparative Immigration Studies (CCIS), San Diego, CA, April 29, 2013.
“Race, Ethnicity, the 2012 Elections, and the Politics of Comprehensive Immigration Reform.” Presentation at the UCLA Beyond the Headlines speaker series, Los Angeles, CA, February 26, 2013.
“International Migrants Bill of Rights (IMBR) Initiative.” Georgetown Law School, Washington, D.C., February 8-9, 2013.
“Immigration Policy After the 2012 Elections.” Presentation at the UCLA Program on International Migration, Los Angeles, CA, November 16, 2012.
“PBS Need to Know 2012 Election Special: America by the Numbers.” Presentation for KPBS at the Jo and Vi Jacobs Center, San Diego, CA, October 10, 2012.

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2011 | 2010 | 2009 |

“Immigrants in American Society.” Presentation at the U.S. Citizenship and Immigration Services (USCIS) field office, Dallas, TX March 6, 2012.
“The Radical Right and the Politics of Immigration Control in Europe.” Presentation at the University of Neuchâtel, Switzerland, June 16-17, 2011.
“Conceptual Challenges and Contemporary Trends in Immigration Control.” Presentation at the “Immigration Policy in an Era of Globalization” conference at the Federal Reserve Bank of Dallas, May 18-20, 2011.
“Enforcing Like a State: A Mixed-Methods Study of the Politics of Immigration Control.” Presentation at the UC Center for New Racial Studies Conference, Los Angeles, CA, April 21, 2011.
“Immigration Enforcement in the Age of Obama.” Presentation at the UCR Center for Ideas and Society, Riverside, CA, March 8, 2011.
“The Politics and Determinants of Immigration Control: Evidence from 25 Immigrant-Receiving Democracies.” Presentation at UC Irvine, Department of Political Science and the Center for Research on Immigration, Population, and Public Policy, Irvine, CA, December 1, 2010.
“States, Irregular Migrants, and a Theory of Selective Immigration Control: Evidence from European Gateway Cities.” Presentation at the “Beyond Arizona: Laws Targeting Immigrants in the US and Europe” conference at the Warren Institute on Race, Ethnicity, and Diversity, Berkeley, CA, October 25, 2010.
“Immigration Control in Industrialized Democracies: What Explains Their Variations.” Presentation at Metropolis, an initiative of Citizenship and Immigration Canada, Ottawa, Canada, December 2, 2009.

PROFESSIONAL ACTIVITIES
• Reviewer: American Journal of Political Science, American Politics Research, Du Bois Review, International Migration, International Migration Review, International Studies Quarterly, Journal of Ethnic & Migration Studies, Journal of Politics, Journal of Race, Ethnicity, and Politics, Law & Social Inquiry, Political Research Quarterly, Russell Sage Foundation, Social Identities, Social Problems
• APSA, Executive Committee, Migration and Citizenship Section, Treasurer, 2012-2015 • APSA, Executive Committee, Race and Ethnicity Section, 2013 • MPSA, International Relations and Domestic Politics Section Program Chair, 2016

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• WPSA, Pi Sigma Alpha award committee, 2014 • WPSA, (Im)Migration and Citizenship Section Program Chair, 2015 • WPSA, Dissertation award committee, 2016 • WPSA, (Im)Migration and Citizenship Section Program Chair, 2017 • Advisory Board, Unbound Philanthropy, 2015-present • Advisory Board, Integrated Voter Engagement study, 2016-present • Advisory Board, Center for Comparative Immigration Studies (CCIS), 2012-present • Executive Committee, Center for Comparative Immigration Studies (CCIS), 2015-present • Editorial Board, Journal of Migration and Human Security, 2014-present
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EXHIBIT B

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EXHIBIT C

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al. ; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

V.

§

§

STATE OF TEXAS, et al. ,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-0LG

DECLARATION OF JAESON T. FOURNIER

Pursuant to 28 U.S.C. § 1746, I, Jaeson T. Fournier, declare the following:

1.

My name is Jaeson T. Fournier and I am over eighteen years of age. I have personal

knowledge of and could testify in Court concerning the following statements of fact.

2. I am the Chief Executive Officer ofCommUnityCare Health Centers.

3. CommUnityCare Health Centers (CUC) is an Austin based Federally Qualified

Health Center. CUC predominately serves low income individuals of diverse backgrounds from

throughout Travis County. As an organization, CUC renders primary health care services without

regard to an individual's insurance status or ability to pay, and also mitigates other access to care

barriers confronting those we serve.

4. Unfortunately, a new barrier has emerged for us and our patients to contend with-
fear of immigration enforcement efforts. cue has direct and anecdotal evidence that community

members, including some of our patients, are currently delaying or foregoing needed medical care

as a result of this fear barrier. More specifically, patients communicated that they did not feel safe

leaving their homes to attend to their medical needs following ICE activity in a parking lot close

to our Rundberg health center. As some of our patients are confronted with the difficult choice of

Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 37 of 45 attending to their health care needs or feeling safe, CUC is increasingly concerned about not only the potential adverse impact on their health and well-being, but also the health and well-being of the community at large.
I declare under penalty of perjury pursuant to 28 U.S.C. §1746 that the foregoing is true and correct.
Executed in Travis Count Texas, on the 22nd day of June, 2017.
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EXHIBIT D

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

DECLARATION OF ILIANA GILMAN

Pursuant to 28 U.S.C. § 1746, I, Iliana Gilman, declare the following:

1. My name is Iliana Gilman and I am over eighteen years of age. I have personal

knowledge of and could testify in Court concerning the following statements of fact.

2. I am writing today in my capacity as CEO of El Buen Samaritano Episcopal

Mission (El Buen) to provide information about the negative effects suffered by our organization

and the community that we serve, beginning late last year.

3. El Buen is a faith-based non-profit and a mission of the Episcopal Diocese uniquely

rooted in its commitment to help Latino and other families in Central Texas lead healthy,

productive and secure lives. For 30 years El Buen, with the support of its partners and funders, has

worked to build healthy, resilient and vibrant communities through high-quality and affordable

healthcare, education, emergency food assistance and spiritual support services.

4. More than 10,500 individuals a year rely on us for the provision of these critical

services. 97 percent are Latino, of which, 92 percent live at or below 150 percent of the Federal

Poverty Level. El Buen has taken great care to earn the community’s trust during the last three

decades, and we are better position than most other non-profits to directly witness how legislative

Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 40 of 45
and executive decisions can begin to fracture that trust, which in turn keeps our community from receiving the services they desperately need.
5. As an example, approximately 600 established patients from our clinic recently became eligible for the Medical Access Program (MAP) that gives them access to specialty care, dental, pharmacy, and emergency services. To enroll in MAP, patients must provide required documentation that discloses residency and income status. In one morning, 17 MAP eligible patients who originally planned to enroll all declined after being informed of this documentation requirement – fearing their information would be made available to law enforcement and therefore put them at risk of deportation.
6. Most of our client families have complex needs who require care coordination to develop tailored treatment plans and connect them with other social services as appropriate. Almost 80 percent of our clients have a chronic disease such as diabetes, depression and high cholesterol that if left untreated, can lead to poor health outcomes that result in high cost medical services at other healthcare settings such as hospitals or urgent care clinics. El Buen serves a crucial role in diverting these individuals to more cost effective treatment that ultimately results in better outcomes, but recent events have resulted in more and more of our clients no longer coming to us for help.
7. A 48-year-old patient with a long history of well controlled diabetes stopped coming to our clinic since the ICE raids occurred in February. After many weeks of physical concerns, she came in for a medical visit. Her blood sugar levels rose significantly, she was experiencing depression, not eating and was no longer taking was her medication. Her medical provider expressed concern, and was told by the patient she was afraid to leave her home. She had
2

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stopped taking her evening walks and was now afraid to drive to the pharmacy or to get groceries because of frequent reports warning of ICE in these areas.
8. In another case, a 50-year-old female came to the clinic for her annual exam. Although she had no previous history of depression, she reported chronic nervousness and anxiety associated with the possibility of her and/or her husband being detained and was not sleeping at night. She was afraid to leave her home and no longer drives for basic errands. She has also given up her daily walks at Lady Bird Lake. Although she was seen by a mental health professional the same day, she is refusing ongoing therapy.
9. These fears have been and continue to be expressed across all service areas. Our anecdotal feedback from our Community Health Workers is resoundingly rooted in wide-spread fear of deportation. This is also demonstrated in the impact of programs as follows: 4,200 less encounters year to date than in 2016; service utilization has declined across all program areas except for mental health; medical visits declined 7% in February and April; 10% increase in noshow rates for established patients; food pantry visits and households assisted declined by 15% in February and April; and adult education attendance rates have dropped between 10% and 25% to date.
10. Although we are a trusted member of the community, our clients are choosing to forgo critical health and basic needs services because they are afraid to leave their homes and risk being separated from their families. To them, the risk exceeds any support we can offer them. These choices – made in the context of legislative actions and executive decisions that appear directly to target them – are jeopardizing the health of our community.
11. We also are feeling the impact of these actions and decisions at an organizational level. While the need for services continues to increase, the number of individuals willing to seek
3

Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 42 of 45 help has decreased. Impending healthcare reform, and the uncertainty associated with it, may result in further decreases. And with those decreases comes a decrease in our patient encounters and visits, directly impacting fees received through our programs and potentially threatening El Buen’s financial sustainability. These reduced visits and fees mean that El Buen, just like so many of our clients, faces an uncertain future.
I declare under penalty of perjury pursuant to 28 U.S.C. §1746 that the foregoing is true and correct.
Executed in Travis County, Texas, on the 22nd day of June, 2017. ______________________________________ ILIANA GILMAN
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EXHIBIT E

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

DECLARATION OF MONTSERRAT GARIBAY

Pursuant to 28 U.S.C. § 1746, I, Montserrat Garibay, declare the following:

1. My name is Montserrat Garibay and I am over eighteen years of age. I have

personal knowledge of and could testify in Court concerning the following statements of fact.

2. I am the Vice President of Education Austin, the labor union for certified and

classified employees of the Austin Independent School District.

3. As an immigrant advocate and vice president for Education Austin, I have seen

the effect of the immigration raids and anti-immigrant policies on schools. Many of our members

have shared their concerns about how students are afraid of attending schools and being

separated from their parents. It is extremely difficult for a teacher to teach a student how to read

and write, when their parents are living in fear. The social and emotional well-being of many of

our students has been shattered into pieces because they cannot concentrate in school and are

nervous.

4. Parents support specialists have shared that many mothers are depressed and do

not take their children to school because they are afraid that they will be stopped by ICE agents

Case 5:17-cv-00404-OLG Document 103-1 Filed 06/23/17 Page 45 of 45
or the police. Some parents have withdrawn their children from school in fear that their children will end up in foster care.
5. Teachers who are working in the United States with a work authorization under the DACA (Deferred Action for Childhood Arrivals) program are also worried about the safety of their parents and siblings who are undocumented. They feel worried and live every single day with concern that one day they will return from work and one of their loved ones will not be at home. The effects of immigration raids and anti-immigrant policies are taking a toll in the lives of our most precious assets, our children, the future of our country.
6. This summer many children are been kept inside their homes for their safety, they are not allowed to go to the park, go to movies or the pools. Parents are fearful that they might be stopped and deported. Our union has seen a decrease of parents attending know your rights trainings that we are holding throughout the city. Parents do not want to leave their homes.
I declare under penalty of perjury pursuant to 28 U.S.C. §1746 that the foregoing is true and correct.
Executed in Travis County, Texas, on the 22nd day of June, 2017.
MONTSERRAT GARIBAY
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 Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al., Plaintiffs,

CIVIL Action No.: 5:1 7-CV-00404-OLG (Lead Case)

V.
THE STATE OF TEXAS, et al. Defendants.

CIVIL Action No.: 5:17-CV-00459-OLG (Consolidated Case)
CIVIL Action No.: 5:17-CV-00489-OLG (Consolidated Case)

CITY OF DALLAS'S COMPLAINT IN INTERVENTION Now comes the City of Dallas ("Dallas") and files this Complaint in Intervention against the State of Texas ("Texas"), Governor Greg Abbott, and Texas Attorney General Ken Paxton, in his official capacity only, (collectively "Defendants") and would show the Court the following:
I. Summary 1. The City of Dallas is not a so-called "sanctuary city" and complies with federal inimigration law. Dallas has a proven track record of cooperation with U.S. Immigration and Customs Enforcement ("ICE"). However, the passage of Senate Bill No. 4 ("SB4")' will negatively affect more than the so-called sanctuary cities and those that do not comply with federal immigration law. Instead of providing resources, SB4 imposes an unfunded mandate on local governments. Instead of supporting law enforcement, SB4 places law enforcement officers in untenable circumstances, exposes them to personal liability, and fundamentally undercuts their ability to do the jobs they were hired to perform. Instead of promoting the economy and Texas, SB4 serves as a drag. Instead of allowing the formulation of policy at a local level with all points of view raised, SB4 stifles the free exchange of ideas and healthy debate critical to democratic

1 Act of May 7, 2017, 85th Leg., R. S., S.B. 4.
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ideals by subjecting local governments, officials, and employees to fines, removal from office, and

even criminal conviction. Instead of allowing those with the most knowledge and experience and

those who are immediately and directly impacted to detennine local priorities, SB4 strips local

governments, their elected officials, and their employees of control and discretion. Its vague

provisions provide no guidance to local governments. For a state fiercely independent of federal

authority, SB4 concedes authority and resources to federal officials and deposits the burdens and

the risks of enforcing immigration law on local governments. SB4 is contrary to the history and

ideals of the State of Texas and this nation, is unconstitutional, and must be struck down.

II. Jurisdiction and Venue

2. The original plaintiffs have properly asserted jurisdiction and venue before the

Court. Intervenor-Dallas raises federal questions and the Court has jurisdiction pursuant to 42

U.S.C. § 1331, 1346(a)(2) and remedial authority under 28 U.S.C. § 2201 etseq. Venue properly
lies in this district because a substantial part of the events or omissions giving rise to the claims

occurred or will occur in this district. 28 U.S.C. § 139(b), 124(d)(4).
III. Parties and Claims

3.

The original plaintiffs in this action, Civil Action No. 5:1 7-CV-404-OLG, are City of El

Cenizo, Mayor Raul L. Reyes, Maverick County, Sheriff Tom Schmerber, Constable Mario Hernandez;

and the Texas State League of United Latin American Citizens. They have all appeared and agreed to the

jurisdiction and venue of the Court. The original plaintiffs seek declaratory relief that SB4 is

unconstitutional and preliminary and permanent injunctive relief to prevent implementation of SB4.

4.

Travis County, Judge Sarah Eckhardt, and Sheriff Sally Hernandez have sought leave to

intervene in this action. They have named the same defendants and seek the same ultimate relief.

5.

The plaintiffs in Civil Action No. 5:1 7-CV-00459-OLG are El Paso County, Sheriff

Richard Wiles, and Texas Organizing Project Education Fund. They have all appeared and agreed to the

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jurisdiction and venue of the Court. They have named the same defendants and seek the same ultimate
relief.

6. The plaintiffs in Civil Action No. 5:17-CV-00489-OLG are the City of San Antonio, Council Member Rey A. Saldana, Texas Association of Chicanos in Higher Education,
La Union Del Pueblo Entero, and Workers Defense Project. They have all appeared and agreed
to the jurisdiction and venue of the Court. They have named the same defendants and seek the
same ultimate relief.

7. The City of Austin has intervened in this action. It has named the same defendants
and seeks the same ultimate relief.

8.

On June 7, 2017, the Court consolidated these lawsuits. Collectively, the plaintiffs

and proposed intervenors allege that SB4 is unconstitutional because SB4 is preempted by federal

law, is void for vagueness, deprives others of procedural and substantive due process, violates

freedom of speech, denies equal protection of laws, violates the Tenth Amendment of the United

States Constitution, deprives local governments and their officials ofthe power of self-government

denies them their constitutionally granted discretion, and violates the Voting Rights Act of 1965.

All ofthe Plaintiffs and proposed intervenors allege that they will suffer substantial and irreparable

harm if SB4 is permitted to go into effect.

9. The Defendants, the State of Texas, Governor Greg Abbott, and Texas Attorney General Ken Paxton, are the same in all of the actions and they have already been served and
appeared in this consolidated action.

IV. Additional Party, Intervenor-City of Dallas
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10. Intervenor, City of Dallas, ("Dallas") is a Texas home-rule municipal corporation, with its principal administrative offices in Dallas County, Texas, at 1500 Manila, Dallas, Texas 75201, but is otherwise located within five counties. Dallas's constitutionally authorized charter grants it authority of self-governance including authority "to make and enforce all police, health, sanitary, and other regulations, and pass such ordinances as may be expedient for maintaining and promoting the peace, good government, and welfare of the city, for the performance of the functions thereof, for the order and security of its inhabitants and to protect the peace, lives, health, and property of such inhabitants, and to provide suitable penalties for the violation of any ordinance enacted by the city." It has the authority to establish the manner in which local officials, including a Mayor and the City Council, may be elected and removed from office; to create a police department and hire its police chief and other peace officers; to allocate resources and determine priorities in furtherance of the welfare, health, morals, comfort, safety, and convenience ofDallas and its inhabitants.
11. Dallas faces injury-in-fact from the implementation and enforcement of SB4. Dallas's elected and appointed officials face removal from office for "endorsing" policies contrary
to SB4 or "immigration law." Dallas, its elected officials, appointed officials, and employees face complaints, litigation, writs, and substantial civil penalties for alleged non-compliance with SB4.
The Chief of Police faces criminal conviction for alleged noncompliance with SB4. Dallas, its elected officials, appointed officials, and employees all face the chilling effect of the potential of
litigation, complaints, removal from office, fines, prosecution, andlor conviction from SB4. Dallas faces budget uncertainty and costs related to costs for any alleged non-compliance with SB4, additional costs associated with training officials and employees about federal immigration law, additional costs for required cooperation with federal immigration officials, and additional cost for
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enforcement of federal immigration law. Dallas, its elected officials, appointed officials, and employees face litigation and adverse judgments for violating the constitutional rights of its
residents and non-residents by complying with SB4. Dallas has been and will be further damaged
by the impact and effect ofSB4 on local law enforcement, tourism, and its economy. Additionally,
pursuant to Dallas City Code, the City must defend and indenmify its elected officials, appointed
officials, and employees from claims arising from the discharge oftheir duties. Dallas has already and will further suffer imminent, substantial, and irreparable harm if SB4 is permitted to go into
effect. 12. Dallas also has representative standing to assert the claims regarding SB4 on behalf
of its elected officials, appointed officials, employees, and residents who would be directly impacted by SB4. Those individuals have standing to sue in their own right as to SB4's application against them. The interests of these individuals are germane to Dallas's purposes as set forth above. The claims asserted by Dallas and the relief requested by Dallas do not require these individuals' participation. Dallas has standing to assert their interest.
V. The Terms and Conditions of SB4.
13. The other plaintiffs and the proposed intervenors have already outlined the history leading up to the passage and signing SB4. SB4 was introduced in the Senate on January 24,2017.
It eventually was passed by the Texas Senate and House of Representatives. The Governor signed
SB4 on May 7, 2017 and it is to become effective as Texas law on September 1, 2017. SB4 has two general prohibitions, a so-called "anti-sanctuary" provision and a provision requiring mandatory compliance with immigration detainer requests.
A. The "Anti-Sanctuary" Provisions
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14. SB4's "anti-sanctuary" provision is to be implemented by a newly enacted Chapter 752 of the Texas Government Code. The critical provision is Section 752.053 and applies to local governmental entities. Subsection (a) states that a local entity may not: (1) adopt, enforce, or endorse a policy under which the entity prohibits or materially limits the enforcement of immigration laws; (2) through a pattern or practice, prohibit or materially limit the enforcement of immigration laws; or (3) through a pattern or practice, intentionally violate the newly enacted provisions in article 2.25 1 of the Texas Code of Criminal Procedure concerning immigration detainer requests.
15. As part of the required compliance with subsection (a), subsection (b) states that a local entity may not prohibit or materially limit any of their commissioned peace officers,
corrections officers, booking clerks, magistrates, or prosecuting attorneys from (1) inquiring into
the immigration status of a person under lawful detention or arrest; (2) restricting the sending, maintaining, or exchanging that person's immigration status; (3) assisting or cooperating with a
federal immigration officer as reasonable or necessary, including providing enforcement assistance; or (4) permitting a federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration laws.
16. "Local entity" is defined as the governing body, not the entity itself, of a
municipality, county, special district, or special authority. The term also includes any officer or
employee of the local government. 17. "Lawful detention" is defined as any detention by a local entity but excludes
detention ifthe sole reason is because the individual is a victim or witness to a criminal offense or
is reporting a criminal offense. However, with the amendment to article 2.13 of the Texas Code of Criminal Procedure, a peace officer may inquire into the nationality or immigration status of a
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victim or witness if necessary to investigate the offense, conduct a separate investigation of any
other criminal offense, or has probable cause to believe the victim or witness has committed a separate offense.
18. "Immigration laws" is defined as Texas or federal law "relating to aliens, immigrants, or immigration, including the federal Immigration and Nationality Act (8 U.s.c. Section 1101 et seq.)." "Policy" is defined as including a formal or informal, written or unwritten,
rule, order, ordinance, or policy. Despite the broad definition of local entity, various hospitals,
hospitals, health centers, school districts, and charter schools are exempted from SB4.
19. An intentional violation of the "anti-sanctuary" provision by the governing body, an officer, or an employee of the local government may result in daily civil penalties of up to $25,500 for each violation. Also, any citizen may file a complaint, not subject to the penalty of perjury, with the attorney general alleging a violation of the "anti-sanctuary" provision. The attorney general may then seek mandamus or injunctive relief against the governing body, its
officials, andlor its employees ordering compliance with SB4. Finally, an elected or appointed
official of a local government may be removed from office if that person violates the anti-sanctuary
provision. 20. SB4 also provides for competitive grants to be awarded to local governments to
offset costs "related to enforcing immigration law" and "complying with, honoring, or fulfilling immigration detainer request." On information and belief, the program is not funded and as a
competitive grant is not intended and will not fund all ofthe costs incurred by all local governments
to comply with SB4.
B. Immigration Detainer Request Provision
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21. The other major component of SB4 concerns federal immigration detainer requests and adds article 2.25 1 to the Texas Code of Criminal Procedure. It now states that a law enforcement agency that has custody of a person subject to an immigration detainer request issued
by ICE "shall comply with, honor, and fulfill any request made in the detainer request." However,
a law enforcement agency is not required to honor the detainer request if the person has proof,
such as a Texas driver's license or similar government-issued identification, that he or she is a U.S citizen or has lawful immigration status.
22. Article 2.13 of the Texas Code of Criminal Procedure was amended and now provides that a peace officer may inquire into the nationality or immigration status of a victim or witness if necessary to investigate the offense, conduct a separate investigation of any other criminal offense, or has probable cause to believe the victim or witness has committed a separate
offense. 23. A sheriff, police chief, constable, or person with primary authority for
administering a jail commits a Class A misdemeanor for knowingly failing to comply with a detainer request. A local government's governing body, officials, and/or employees are subject to civil penalties, mandamus or injunction, or removal from office for a pattern or practice of intentionally not honoring detainer requests.
\TI Facts 24. Dallas is a home-rule municipality and through its charter and ordinances engages in self-government. Dallas has a mayor elected on a city-wide basis and fourteen council members elected from different single-member district. Dallas is a city manager type of municipality. Dallas has approximately 13,000 employees. Dallas has a police department and a marshal's office and has approximately 3,400 peace officers. Dallas has a detention facility for minor offenders
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and those offenders are generally confined at the facility for no more than a few hours. It is not certified as a jail, does not serve meals, and does not confine offenders more than twenty-four hours.
25. Through statutes and regulations, the federal government has adopted an extensive,
comprehensive, and complicated set of laws dealing with aliens, immigrants, and immigration that
comprise "immigration law." Federal law authorizes the federal government to enter into written
agreements with local governments by which its officers may perform the functions of federal
immigration officers. The local government's officers must first be trained on federal immigration
law and may only act as federal immigration officers if found to be qualified by the U.S. Attorney
General. 8 U.S.C. § l357(g). Dallas has not entered into such a written agreement. 26. Dallas does not provide training to its governing body, officials, or employees,
including its peace officers, regarding immigration laws and the enforcement of immigration laws.
Dallas's current budget does not provide for any funding for the costs to provide such training. It is impossible to assess what kind of training would be necessary so that Dallas officials and employees would not "adopt, enforce, or endorse" an informal or formal, written or unwritten, rule, order, ordinance, or policy that "prohibits or materially limits" the enforcement of immigration law. Dallas does provide training and policies regarding probable cause, warrants, and lawful searches and seizures unrelated to federal immigration laws.
27. Also, included within the federal immigration regulations is the immigration
detainer request. ICE will typically make a written request of local governments that the U.S. Department of Homeland Security ("DHS") has identified a person who is in the local
government's custody whom DHS believes to be an alienlimmigrant subject to removal, and
requests that the local government maintain custody ofthe individual for a period of up to 48 hours
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(excluding Saturdays, Sundays, and holidays) beyond the time when the individual would otherwise be released from custody. 8 C.F.R. § 287.7. The request is typically issued by ICE on Form I-247A and is civil in nature. The request is not a warrant issued by a judge and are mere requests. Compliance by local governments with a detainer request is voluntary. The federal government does not pay for the extra costs or otherwise indemnify local govermnents for any extra detention.
28. Dallas receives ICE immigration detainer requests. Dallas has tightly limited space
available for the detention of any individuals. Historically, Dallas has complied with all federal
immigration laws to the extent applicable to it but Dallas has not attempted to enforce immigration law.
29. In 1996, Congress passed 8 U.S.C. § 1373. Pursuant to Executive Order Number 13,768, the President, as clarified by the Attorney General, defined sanctuary jurisdictions
as those that failed to comply with Section 1373.2 The City of Dallas is in compliance with Section l373.
30. The vast majority of immigrants residing in, traveling through, or visiting Dallas, regardless of immigration status are minorities with the largest segment being individuals of
Hispanic origin. Often immigrants will reside in the same neighborhoods. Dallas has some
neighborhoods where approximately 40 different languages are spoken. The rich diversity of Dallas is part of its wealth and success.

2MEaxye2c2u,ti2v0e1O7r,daevraNilaob. le13a,t7h68tt,pJsa:/n/.w2w5w, 2.j0u1s7ti,ce8.2gFoved/o. pRae/pgr.e8s7s-9r9e;leMaseem/foilrea/n9d6u8m14b6y/dUow.Sn.lAoatdtorney General,

Enforcement of the executive is proceeding. County ofSanta
145908 1 (N.D. Calif. April 25,

order has been preliminarily enjoined by a federal district court and the Clara v. Trump, Nos. 17-CV-00574-WHO, 17-CV-00485-WHO, 2017 2017).

case WL

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31. Texas has a population of 27,469,111 residents of which 4,627,888 are foreign born or 16.8% of the Texas population. The Pew Research Institute estimates there are an estimated
1.65 million undocumented immigrants in Texas.4 North Texas is home to the second largest
population of immigrants in the State of Texas. The Dallas, Fort Worth, Arlington Metropolitan Statistical Area has an immigrant population of 1.2 million residents which is 8th among all MSAs
in the United States.5 In 2014, immigrants in the Metroplex had a combined household income
of $33.9 billion dollars, paid $8.4 billion dollars in taxes, had a joint spending power of $25.5 billion dollars and the number ofhomes owned by immigrants was 267,827.6 Dallas County has an approximate immigrant population of 582,200. The City of Dallas has a population of 1.19 million residents of which 42% are of Hispanic origin.8 An estimated one in four City of Dallas
residents are foreign born.
32. As significant contributors to Dallas's economic, social and cultural milieu, Dallas
has a number of initiatives to connect immigrants and refugees. The City of Dallas has an Office of Welcoming Communities and Immigrant Affairs focusing on five key areas including; 1)
leadership and communications, 2) civic involvement, 3) economic development and education, 4) equitable access, and 5) safe and connected communities. Additionally, the Dallas Police Department has been recognized for its outreach initiatives which include, Coffee with Cop, the Unidos Program, the Citizens Police Academy, and other initiatives. Involvement in the

" Pew Research Institute, US. Unauthorized Immigration Population Estimates, Nov. 3, 2016, http://www.pewhjspanie.orjnteractjves/unauthorjzedjmmjgrants/

Migration Policy Institute, U.S. Immigrant Population by Metropolitan Statistical Area, 2011-2015;

http://wv.migrationpolicy.orgJprograms/datahub/charts/usimmigrant.popu1ationmetropolitan. area(2015).

6

American Economy, http://www.newamericaneconomy.org/city/dallas-fort-worthl.

7Migration Policy Institute, U.S. Immigrant Population by State and County, 2011-2015.

8

States Census Bureau, American Fact Finder, Dallas City, Texas,

htts://factfinder.census.gov/faces/nav/jsf/pages/communityfacts.xJitml?src=b1unk 2017).

(last

visited June

13,

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community and assessing the needs of all Dallas residents is at the core of Dallas city governance. A restrictive law like SB4 detracts from the core mission of providing public safety, combating crime, and addressing the needs of all Dallas residents. The Dallas Police Department cooperates
with federal law enforcements partners and complies with ICE detainer requests. As a percentage
of total ICE requests nationwide, Texas represents less than 1% of declined detainer requests.9
33. While a cooperative law enforcement partner on issues related to combating serious crime, the Dallas Police Department does not enforce U.S. civil immigration laws. The Dallas Police Department has neither the resources nor the capacity nor the statutory authority to detain non-citizens for civil immigration infractions.
VII. The Effects and Consequences of SB4 A. SB4 is not limited to law enforcement, detentions, arrests, or detainers.
34. The purported focus of SB4 was limited to criminal immigrants and immigration
detainers requests. However, SB4 is not so limited and imposes restrictions on local governments
and their officials on any aspect of "immigration law." Federal immigration laws encompass such activities as eminent domain proceedings for construction of such facilities as "the Wall" between Mexico and the United States or other detention facilities; ICE's warrantless searches on public
and private property; searches and enforcement actions against employers; the various incarnations
of the travel ban; inspection and enforcement actions for failure to maintain required 1-9 forms; investigations and prosecution of violations of the tax laws related to aliens and immigrants;
addressing refugees and asylum seekers andlor related humanitarian assistance; managing the admission and granting visas and other status to the millions visiting, working, traveling through,
andlor residing in the country; and the host of other matters within the federal statutes and
Morgan Smith and Jay Root, Jails Refused to Hold Thousands ofImmigrants Sought by Feds, TEX.
TRIBUNE, Jan. 15, 2016.
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regulations. SB4 specifically recognizes that local governments, their officials, and employees are now charged with enforcing all immigration law.
B. SB4 is an impediment and determent to law enforcement. 35. One of the purported reasons for the enactment of SB4 was to assist law
enforcement and address crime. It has already had the opposite effect. 36. Dallas has encountered crime victims and witnesses who are no longer willing to
report crimes, be witnesses, or otherwise take part in the prosecution of a criminal defendant because of fears they or their relatives will be subject to immigration enforcement actions. The number of dismissals of domestic violence cases has increased because the complainants fail to
appear or respond to prosecutors' attempt to contact them. 37. Dallas anticipates that there will be an increase in criminal cases that can no longer
be successfully prosecuted to a final conviction. This will in part be due to the loss of witnesses and victims willing to testify in court. It will also be in part to the loss of admissible evidence due to the forced lack of training and policies concerning the proper reasons for detentions, scope of questions, and length of any detention. Because of the SB4's express limitations on policies, Dallas will not be able to train its peace officers as to the circumstances when "inquiring into" a person's immigration status is not lawful which may result in the suppression of evidence.
38. Furthermore, the fear caused by SB4 will undermine Dallas's ongoing efforts to promote community policing and to develop trust and cooperation in neighborhoods with large immigrant populations. The trust and cooperation is central to help prevent and investigate crime. The erosion of trust and cooperation will extend beyond immigrant neighborhoods but reach into all of Dallas. Criminals know no boundaries and can be found anywhere in Dallas. Also, any police officer's encounter with any minority individual and questioning about citizenship status
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will be laced with potential accusations of racial profiling. For all citizens, questioning about
alienage will be offensive and erode trust and cooperation with the police on a much wider scale. 39. SB4 also will place peace officers in a no-win situation regarding encounters with
Dallas residents. Because of SB4's express limitation on the creation of policies, Dallas will not
be able to provide operational training and education to its peace officers as to when is it proper to ask about status, when is further detention proper, what is sufficient information regarding status,
what happens if the person does not have legal status, and when is transfer to ICE proper. The peace officers will be forced to sort those issues out by themselves. If the officers get the answer wrong they will be subject to possible litigation and personal liability. The destruction of trust and cooperation will not only place officers at greater risk of accusations but greater risk of harm.
40. SB4 also places restrictions on the district and county attorneys and deprives them
of the necessary discretion as to how to obtain convictions. Successful prosecution of criminal cases is important to Dallas's overall safety and security which may be harmed by SB4.
41. In addition, SB4 will require a re-allocation of the already limited, stretched, and strained resources of the Dallas Police Department. Resources will need to be diverted as to
whatever immigration law training is permitted. Local governments will be required to comply with any ICE request to assist and cooperate including providing enforcement assistance. Dallas will no longer have discretion to decline assistance and cooperation. A refusal because resources are demanded elsewhere may trigger a complaint by ICE or someone else to the Texas Attorney General.
42. Additional detention caused by detainer requests will impose additional costs. SB4
requirements will force a diversion of limited time and resources from pursuing a primary law enforcement priority of the investigation and prosecution of serious crimes. SB4 will deny the
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discretion for Dallas and its officials to decide the best allocation of resources. Any diversion of law enforcement resources, time, and facilities caused by SB4 will expose Dallas's residents to greater threats. The removal of local discretion will hamper Dallas's ability to provide effective law enforcement to the residents of Dallas.
C. SB4's damaging effects on education, social service programs, and neighborhoods. 43. At schools within Dallas, students, regardless of their status, have missed class due
to fears that they or their relatives will be subject to immigration enforcement actions on the way
to or from school. These children will lose the benefit of education which will ultimately cause lost opportunities. At public meetings concerning policies, programs, and governance of Dallas,
there has been a decrease in participation in immigrant/minority neighborhoods. SB4 will thwart
Dallas's ongoing efforts to broaden involvement by all communities into the governance of Dallas
and the participation in its programs. 44. Community non-profit organizations that provide services for minority and
immigrant neighborhoods report that families are afraid to leave their homes because of fears they or their relatives will be subject to immigration enforcement actions if they travel away from their
homes. This includes a fear to seek preventive medical care or participating in health and social service programs. The delay then translates to the need for emergency care at greater cost and
burden to the families and public health care providers. Churches and other places of worship in minority and immigrant neighborhoods report that families have altered their lives out of fear of fear of immigration actions. 10
r'2°o4Eu,tl2ivn0ie1as7.LhimttpOsn:/,!IwnwDwa.ldlaalsla'Hsnieswpasn.ciocmCJonmewmsu/dnaitfileass,/2F0ea1r7S/0e5a/p2s4I/dnatollaEsv-herisypdaanyicR-ocuotminmesu,nDitaiellsa-sfeMaro-srneeinpgs-Neveewrysd, aMya-y
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45. In neighborhoods with greater concentration of immigrants the fear that any
encounter with the police could result in immigration action, crime in these neighborhoods will not be reported as frequently and result in greater overall crime. This coupled with fear to take
part in social programs will contribute to the downward cycle of poverty. Often these
neighborhoods are already predominantly minority. These neighborhoods and their residents will be harmed as a result of SB4.
D. SB4 will negatively impact tourism in Texas and Dallas
46. SB4 will have an adverse effect on tourism in Texas and in Dallas. The DFW
Metroplex has already seen the cancellation of one approximate 3,000 person event in direct response and boycott because of SB4. The cancellation is an estimated loss of $3 million. Dallas
owns and operates its own convention center and already is experiencing negative reaction in its
marketing efforts in specific response to SB4. Even the loss of one convention opportunity will result in direct loss of revenues for the Dallas as well the loss of millions of dollars to the economy
for the City.
47. Apart from conventions, Dallas and Texas are tourist destinations for millions of
domestic and international visitors each year. Approximately 48.1 million domestic visitors, and
2.7 million international visitors annually travel to the Metroplex with a large share of those
visitors coming to andlor staying in Dallas. In 2015, this included approximately 1.8 million from Mexico, 63,000 from South America, 21,000 from Central America, and 10,000 from the Caribbean. Total annual earnings supported from tourism spending in the Dallas area is $4.8
billion and supports approximately 130,000 jobs within the Dallas area. Again, a large share of the spending and the created jobs are in Dallas.
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48. SB4 will lead to domestic and international visitors fearing profiling and create an unwelcoming environment for travelers and residents alike. Any decrease in tourism to the Metroplex will be a direct economic loss to Dallas.
E. SB4's damage to the Dallas's economy and reputation. 49. Dallas prides itself as being a city that can compete with any city in the world. It
is the headquarters for famous international, national, and regional businesses. It has world renowned museums, theaters, and architecture. It is located by and surrounded by equally dynamic cities. The Metroplex and Dallas have a vibrant economy based in part on businesses, trade, and investment from around the world. Dallas's success and continued vitality is in no small way
based on the contributions of immigrants. They represent approximately 25.2% of the labor force and a significant percentage of the business owners. Their work is critical for construction, food
service, education, health care, and social services. 50. Dallas has recently created its Welcoming Communities and Immigration Affairs
office as part of that recognition and to further the contributions of immigrants and refugees to Dallas. The oppressive and regressive components in SB4 will harm Dallas's economy and
reputation.
F. SB4 shifts responsibility and costs to enforce federal law to local governments.
51. SB4 forces local governments to perform federal immigration investigations, enforce federal immigration laws, and detain individuals based solely on questioned immigration
status. SB4 shifts the risks and costs of enforcement of federal law to local governments. G. SB4 strips local governments of discretion and authority and attempts to create an atmosphere of fear and second-guessing. 52. Through its provisions, SB4 seeks to prevent local governments, their officials, and
their employees from speaking, taking lawful actions, and preventing unlawful actions. It imposes
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extreme penal measures on those that have the audacity to speak or act in defiance of SB4's provisions. SB4 seeks to remove local control and discretion and place it the hands of the State
and federal officials without regard to local circumstances. VIII. Causes of Action
First Cause of Action SB4 Violates the Supremacy Clause of the U.S. Constitution. 53. Dallas incorporates all of the allegations contained in the previous paragraphs of
this complaint as though fully set forth here.
54. SB4 violates the Supremacy Clause ofthe United States Constitution by the State's
intrusion and attempt to regulate matters that are exclusively reserved to the federal government.
Congress has exercised exclusive authority over the aspects of SB4. Further and in the alternative, SB4 conflicts and interferes with the implementation and enforcement of federal laws and
regulations and has been preempted by Congress. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Second Cause of Action SB4 Violates the Due Process Clauses of the U.S. and Texas Constitutions. 55. Dallas incorporates all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 56. SB4 is unconstitutionally vague and overbroad under the due process clauses ofthe Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. It fails to provide sufficient notice and definiteness to local governments, their elected representatives, their officials, and their employees concerning actions and inactions that could allegedly violate SB4 and result in civil penalties, writ, removal from office, withholding of
funding, and conviction. SB4 is so vague, indefinite, and overbroad that it allows arbitrary and
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 18

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discriminatory actions. The Court should declare SB4 is unconstitutional and enjoin its implementation and enforcement.
57. The Due Process Clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section 19 ofthe Texas Constitution provide procedural and substantive
due process rights to individuals. SB4 directs and compels local governments, their elected representatives, their officials, and their employees to ignore those rights in formulating policy or in taking or declining to take actions. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Third Cause of Action SB4 Violates the Freedom of Speech Clauses of the U.S. Constitution
and Texas Constitution. 58. Dallas incorporates all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 59. SB4 violates the First and Fourteenth Amendments of the United States Constitution and Article I, Section 8 of the Texas Constitution because it restricts and penalizes the protected speech and actions by local governments, their elected representatives, their officials, and their employees. The vagueness and overbreadth of SB4 is demonstrated that "endorsing" a policy such as speaking out against or legally challenging SB4 is a violation of SB4 that could
result in fines, removal from office, and br conviction. The Court should declare SB4
unconstitutional and enjoin its implementation and enforcement.
Fourth Cause of Action 5B4 Violates the Freedom from Unreasonable Searches and Seizures Clauses of the U.S.
Constitution and the Texas Constitution. 60. Dallas incorporates all of the allegations contained in the previous paragraphs of
this complaint as though fully set forth here.
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61. SB4 violates the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Texas Constitution because each constitutional
provision provides that the people shall not be subject to "unreasonable searches and seizures" without a warrant and without probable cause. SB4 directs and compels local governments, their elected representatives, their officials, and their employees to ignore those rights in formulating policy or in taking or declining to take actions. SB4 denies these persons discretion to formulate instruction and policies to prevent unconstitutional searches and seizures. It forces local
governments to seize individuals pursuant to immigration detainer requests regardless of whether
the detention may not be authorized by law. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Fifth Cause of Action SB4 Violates the Equal Protection Clauses of the U.S. and Texas Constitutions. 62. Dallas incorporates all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 63. The Equal Protection Clauses in the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the Texas Constitution provide that the law shall be applied equally to all individuals. Any law cannot be formulated, applied, or have a disparate impact based on an individual's race, color, national origin, alienage, or religion. Any law that creates nonsuspect classifications between individuals must be rationally based. There are no compelling, rational, or legal bases for the classifications created in SB4. SB4 is not narrowly tailored, and SB4 is not the least restrictive means of achieving the requisite government interest. SB4 directs and compels local governments, their elected representatives, their officials, and their employees to ignore individuals' equal protection rights in formulating policy or in taking or declining to take actions. SB4 denies these persons discretion to formulate instruction and policies to prevent equal
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 20

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rights violations and instead will expose those persons to accusations of racial profiling. Indeed, SB4 creates a likelihood of violation of its statutory duty to have a policy prohibiting racial
profiling. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Sixth Cause of Action SB4 Violates the Contract Clause of the U.S. Constitution 64. Dallas incorporates all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. The Contract Clause states that "[n]o State shall... pass any... [l]aw impairing the Obligation of Contracts." 65. On information and belief, various private and public institutions of higher
education have contracts with undocumented students. On information and belief, other private individuals, businesses, and entities have contracts with undocumented individuals. SB4 directs and compels local governments, their elected representatives, their officials, and their employees to ignore these persons' rights in formulating policy or in taking or declining to take actions and
expose them to liability for claims of impairment of contracts. The Court should declare SB4
unconstitutional and enjoin its implementation and enforcement.
Seventh Cause of Action SB4 Violates Section 2 of the Voting Rights Act of 1965 66. Dallas incorporates all of the allegations contained in the previous paragraphs of
this complaint as though fully set forth here.
67. SB4's provision for the removal from office of an elected official who is found to have failed to comply with SB4, results in a denial or abridgment of the right to vote of Dallas residents on account of their race, color, or etimicity, by having the effect of canceling out or minimizing their individual voting strength of minorities in Texas. Dallas's elected official include many individuals of varied racial and ethnic backgrounds. Any attempt to remove a minority
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Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 22 of 29
elected official based on an alleged violation of SB4 will be an attempt to deprive the minority citizens of their vote by replacing an elected who endorsed a policy contrary to the State's view of
immigration laws.
Eighth Cause of Action SB4 violates the Tenth Amendment of the U.S. Constitution 68. Dallas incorporates all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
69. The Tenth Amendment states "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." SB4 violates the Tenth Amendment by directing local governments to administer federal regulatory laws, programs, and policies. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Ninth Cause of Action SB4 Violates the Home Rule Provisions of the Texas Constitution
70. Dallas incorporates all of the allegations contained in the previous paragraphs of
this complaint as though fully set forth here.
71. Dallas is a home-rule City as defined by Article 11, Section 5 of the Texas
Constitution. Pursuant to that constitutional authority, the City adopted a charter that asserts the
full power of self-government, including the power to determine how local officials may be elected
and removed from office and the power to promote the welfare, health, morals, comfort, safety,
and convenience of the city and its inhabitants. 72. SB4 violates the Home Rule provision of the Texas Constitution authority by
denying the City the power of self-government, including the right to elect and remove local officials and the right to determine for itself how to exercise its police power. The People of Texas
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 22

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 23 of 29
did not grant the Texas legislature any authority to regulate the immigration status of foreign
nationals and to the extent that SB4 seeks to regulate the manner in which Dallas provides for the
public health and safety of all of its residents and visitors, including foreign nationals, the law is unconstitutional. SB4 further represents an improper delegation of federal obligations onto local
governments. The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Tenth Cause of Action SB4 Violates Article 1, Section 30 of the Texas Constitution. 73. Article I, Section 30 of the Texas Constitution provides in part that "a crime victim has ... (1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and (2) the right to be reasonably protected from the accused throughout the criminal justice process." 74. SB4 impacts crime victims by its amendment of article 2.13 of the Texas Code of Criminal Procedure. The amendment provides that a peace officer investigating a criminal offense "may inquire as to the nationality or immigration status of a victim of or witness to the offense only if the officer determines that the inquiry is necessary to: (1) investigate the offense; or (2)
provide the victim or witness with information about federal visas designed to protect individuals providing assistance to law enforcement. The new provision continues that a peace officer is not
prevented from "(1) conducting a separate investigation of any other alleged criminal offense; or (2) inquiring as to the nationality or immigration status of a victim of or witness to a criminal offense if the officer has probable cause to believe that the victim or witness has engaged in
specific conduct constituting a separate criminal offense."
75. The amendment begs the question, when is the status of any victim or witness going
to be relevant to the criminal offense under investigation or any other possible criminal offense?
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 23

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 24 of 29
More importantly how is that question not an invasion of the victim's dignity and privacy and an
affront to being treated fairly. Furthermore, creating classifications between crime victims based on citizenship and immigration status does not advance any rational or compelling State interest.
76. Finally, local governments, including Dallas, and their officials are prohibited from
adopting a policy that will protect its peace officers from claims of violating the rights of victims.
Local governments, including Dallas, and their officials are prohibited by SB4 from adopting any policy to instruct its peace officers intended to protect crime victims and avoid violation of the
constitutional rights of crime victims 77. SB4 ignores, disregards, and is contrary to the constitutional rights of crime victims.
The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Eleventh Cause of Action
SB4 Violates Article 1, Sections 11 and ha of the Texas Constitution.
78. Article I, Sections 11 and 11 a of the Texas Constitution generally provides that "All prisoners shall be bailable by sufficient sureties" except for certain types of offenses and felons The protections afforded by the Texas Constitution are not limited by any type of classification, except those listed. In disregard of this constitutional command, SB4 requires that any law enforcement agency that has custody of a person subject to an ICE immigration detainer request must comply with the request. The typical detainer request is a request to continue to detain the individual and refuse to honor any bail request. Complying with, honoring, and fulfilling any such request which results in the denial of bail violates this provision of the Texas constitution. SB4 ignores, disregards, and is contrary to this constitutional right by requiring local governments to
detain individuals without bail if they are subject to an immigration detainer request. The Court
should declare SB4 unconstitutional and enjoin its implementation and enforcement.
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 24

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 25 of 29
Twelfth Cause of Action SB4 Violates Article 3, Section 1 of the Texas Constitution. 79. Article 3, Section 1 of the Texas Constitution prohibits the legislature from delegating legislative power to any other body or authority. SB4 impermissibly delegates legislative power to the federal government. The statute grants the federal government authority to detennine how local governments make policy, allocate resources, and spend local taxpayer dollars. It grants the federal government authority to restrict speech of local governmental officials by what the federal government determines to be "immigration law." The Court should declare SB4 unconstitutional and enjoin its implementation and enforcement.
Thirteenth Cause of Action SB4 Is Unfunded Mandate and Violates the Texas Constitution. 80. Through a series of provisions in the Texas Constitution, the people of Texas have restricted the power of the Texas legislature to create unfunded mandates and to extend governmental credit. Article II, Section 49 of the Texas constitution states "no debt shall be created by or on behalf of the State ..." Article III, Section 52 states, "Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever ..." Article XI, Section 5 requires that "no debt shall ever be created by any city, unless at the same time provision
be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a
sinking fund ofat least two per cent." Article XI, Section 7 provides that "no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of
creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund." SB4 requires local government to incur debt to
spend unknowable sums that are unfunded and not budgeted. The expenditure of those funds will
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 25

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 26 of 29
be for the benefit of the federal government. The Court should declare SB4 unconstitutional and
enjoin its implementation and enforcement.
Conclusion and Prayer 81. The City of Dallas requests that the Court declare that SB4 is unconstitutional, in whole, or alternatively in part; enjoin SB4's effect and implementation by granting a preliminary and permanent injunction; award the City of Dallas it attorney fees and costs; and grant the City of Dallas such other and further relief as the Court determines is just and proper.
Respectfully submitted, OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS LARRY E. CASTO.
ftome
HARLES S. ESTEE Assistant City Attorney
State Bar of Texas No. 06673600 charles.esteedal1ascityhall.com City Attorney's Office 1500 Marilla Street, Room 7B North
Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622
Attorneys for Intervenor City ofDallas
- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 26

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 27 of 29

CERTIFICATE OF SERVICE

I hereby certify that on June, 19, 2017, the foregoing Opposed Motion to Intervene was served on the following attorneys of record were served in the manner stated, pursuant to Fed. R. Civ. P. 5(b):

ATTORNEYS FOR THE EL CENIZO PLAINTIFFS:

Andre I. Segura Omar C. Jadwat Spencer E. Arndur Lee Gelemt American Civil Liberties Union 125 Broad Street New York, NY 10004

via email: aseguraac1u.org via email: ojadwat(aclu.org via email: sarndur(,ac1u.org via email: lgelerntac1u.org (also collectively via certified mail return receipt requested)

Cecillia D. Wang

via email: cwang(2iaclu.org

American Civil Liberties Union Foundation

39 Drumm Street

(via certified mail return receipt requested)

San Francisco, CA 94111

Edgar Saldivar

via email: esa1divarac1utx.org

American Civil Liberties Union Foundation of Texas

P.O. Box 8306

(via certified mail return receipt requested)

Houston, TX 77288

Cody H. Wofsy

via email: cwofsy(aclu.org

Stephen Kang

American Civil Liberties Union Foundation

39 Drumm Street San Francisco, CA 94111

(also collectively via certified mail return receipt requested)

Max Renea Hicks
Law Office of Max Renea Hicks
P.O. Box 303187 Austin, TX 78703

via email

rhicks@renea-hicks.com

(also via certified mail return receipt requested)

Luis Roberto Vera, Jr.

via email: lrvlaw(sbcgloba1.net

Law Offices of Luis Roberto Vera & Associates, P.C.

iii Soledad, Ste. 1325

(also via certified mail return receipt requested)

San Antonio, TX 78205-2260

ATTORNEYS FOR THE CITY OF SAN ANTONIO PLAINTIFFS:

Andrea Senteno

via email asenteno(maldef.org

Celina Moreno

via email: cmorenoma1def.org

Marisa Bono

via email: mbonoc2ima1def.org

- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 27

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 28 of 29

Nina Perales Tanya 0. Pellegrini John Paul Salmon MALDEF 110 Broadway Street #300 San Antonio, TX 78205

via email npera1es(Zima1def.org via email: tpellegrinima1def.org via email: jsa1monmaldef.org (also collectively via certified mail return receipt requested)

Deborah Lynne Klein

via email: Deborah.k1ein(àsanantonio.gov

Office of the City Attorney, Litigation Division

Frost Bank Tower

(also via certified mail return receipt requested)

100 West Houston Street, 18 Floor

San Antonio, TX 78205-3 966

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:

Jo Anne Bernal El Paso County Attorney

via email: joanne.bemal(ca.epcounty.com

500 B. San Antonio

5th Floor, Suite 503
El Paso, TX 79901

(also via certified mail return receipt requested)

Jose Garza

via email: garzpalm(aol.com

Michael Moran Martin Golando

via email: via email:

michaelcggmtx.com marty(ggmtx.com

GARZA GOLANDO MORAN, PLLC

115 E. Travis St., Ste. 1235

(also collectively via certified mail return receipt requested)

San Antonio, Texas 78205

Mimi Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741

via email: mimi(iitexascivilrightsproiect.org (also via certified mail return receipt requested)

Efrén C. Olivares Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, TX 78516

via email: efren(texascivilrightsproject.org
(also via certified mail return receipt requested)

ATTORNEYS FOR CITY OF AUSTIN INTERVENORS

Michael Siegel

via email: michael.siegelaustintexas.gov

Christopher Coppola

via email: christopher.coppo1a(2austintexas.gov

City of Austin Law Department

P. 0. Box 1546

(also collectively via certified mail return receipt requested)

Austin, Texas 78767-1546

- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 28

Case 5:17-cv-00404-OLG Document 96 Filed 06/23/17 Page 29 of 29

ATTORNEYS FO R TRAVIS COUN'CY PROPOSED INTERVENORS

Anthony J. Nelson

via email: tony.nelson(traviscountvtx.gov

Laurie R. Eiserloh

via email: laurie.eiserloh(traviscountytx.gov

Sharon Talley

via email: via email: sharon.tallevtraviscountytx.gov

Sherine E. Thomas

via email: sherine.thomas(traviscountytx.gov

Tim Labadie

via email: tim.labadietraviscountvtx. ov

TRAVIS COUNTY ATTORNEY

P.O. Box 1748

(also collectively via certified mail return receipt requested)

Austin, TX 78767

ATTORNEYS FOR THE DEFENDANTS:

Andrew Drake Leonie, III

via email: andrew.leonietexasanorneygeneral.gov

David Jonathan Hacker

via email: david.hacker(oag.texas.gov

David Austin Robert Nimocks

via email: austin.nimocks(oag.texas.gov

Joel Stonedale

via email:

Office of the Attorney General of Texas

i oel.stoneda1e(oag.texas.gov

209 W. 14th Street, 8th Floor

(also collectively via certified mail return receipt requested)

Austin, TX 78701

Darren L. McCarty

via email: darren.mccarty(oag.texas.gov

Office of the Attorney General of Texas

240 W. 14th Street, 7th Floor Austin, TX 78701

rpeqsted) (also via certified mai1

HARJES S. ESTEE

- CITY OF DALLAS's COMPLAINT IN INTERVENTION Page 29

 
 Case 5:17-cv-00404-OLG Document 116 Filed 06/26/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al., §

Plaintiffs

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors

§

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants

§

CIVIL ACTION NO. 5:17-cv-404-OLG

NOTICE OF FILING DECLARATION OF VINCE RYAN, HARRIS COUNTY ATTORNEY, IN SUPPORT OF PRELIMINARY INJUNCTION
TO ORLANDO L. GARCIA, UNITED STATES DISTRICT JUDGE: The Office of the Harris County Attorney (“HCAO”) hereby gives notice that it is filing
the Declaration of Vince Ryan, attached herein as Exhibit 1. See also Doc. 108, Exhibit #218; Doc. 110, Exhibit P-205.
Respectfully submitted,

___/s/__Susan Hays____________________ SUSAN HAYS State Bar No. 24002249 LAW OFFICE OF SUSAN HAYS, P.C. P.O. Box 41647 Austin, Texas 78704 Telephone: (214) 557-4819 Facsimile: (214) 432-8273 hayslaw@me.com Counsel for the Office of the Harris County Attorney

NOTICE OF FILING DECLARATION OF VINCE RYAN, HARRIS COUNTY ATTORNEY – Page 1 of 2

Case 5:17-cv-00404-OLG Document 116 Filed 06/26/17 Page 2 of 2 CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 26th day of June, 2017.
/s/ Susan Hays SUSAN HAYS
NOTICE OF FILING DECLARATION OF VINCE RYAN, HARRIS COUNTY ATTORNEY – Page 2 of 2

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 1 of 18
	   	   	   	   	   	   	   	  
Exhibit	  1	  

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 2 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.,

$

Plaintiffs

$

$

CITY OF AUSTIN, et al.,

$

P lainti ff- Intervenors

$

$

$

$

STATE OF TEXAS, et al.,

$

Defendants

$

CNIL ACTION NO. 5:17-cv-404-OLG

DECLARATION OF VINCE RYAN, HARRIS COUNTY ATTORNEY

Pursuant to 28 U.S.C. 5 1746,I, Vince Ryan, declare the following:
1. My name is Vince Ryan and I am over eighteen years of age. The facts stated in

this declaration are true and correct to the best of my knowledge.
2. The Office of the Harris County Attorney represents the largest county in Texas,

its departments, elected officials, and employees, in all civil matters involving County business.

Harris County is one of the most diverse counties in the United States and includes significant

immigrant communities from all over the world. Because of the patterns of immigration over the

last few decades, many children who are United States citizens have parents and other adult

relatives who are undocumented.
3. As one of its mandates, the Office of the Harris County Attorney is tasked with

representing the Texas Department of Family and Protective Services ("the Department") in

legal actions involving Children's Protective Services. Tnx. Fatt. Coop ANN. $ 264.009
(providing that the county attorney shall represent the Department). Our office files an average

of 1,400 cases a year on behalf of the Department, each of which may involve several children

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Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 3 of 18
who have been subject to abuse or neglect in their homes. Currently, my office is representing
the Department in 2,962 active cases involving approximately 4,600 children in the State's
temporary or perrnanent care.
4. Senate Bill 4 defines "local entity" as including "an officer or employee of. . . a
county... includinga... county attorney." Tex. S.B.4, 85th Leg., R.S. $ l.0l (enacting Tex. Gov'T Coon $ 752.051(5)). Senate Bill4 prohibits a "policy," "pattern or practice" that would
"prohibit or materially limit the enforcement of immigration laws." Tex. S.B. 4, 85th Leg., R.S. $ 1.01 (enacting Trx. Gov't Cooe $ 752.053(a)). Thus, a county attorney may not engage in any acts that "materially limit" immigration laws. Senate Bill 4 exempts certain areas from its effects, specifically hospitals, religious organizations, public health organizations, and certain community centers, but does not in any way address the civil law matters of child protective services and the foster care system. SeeTex. S.B. 4, 85th Leg., R.S. $ 1.01 (enacting TEx. Gov'T
Cooe S 752.052). In fact, on the House floor an amendment was proposed to exempt the Department from Senate Bill 4's effects, but it was rejected as part of a mass rejection of dozens
of amendments. See House Amd. No. 145, Tex. S.B. 4, 85'h Leg., R.S. (2017); Tex. H.J. of Tex., 85'h Leg. R.S., 1929, (Apr.26,2Ol7) (Record Vote No. 460).
5. Likewise, Senate Bill 4 contains some efforts to lessen its effects on victims and
witnesses of wrongdoing, but limits those provisions to criminal acts. See Tex. S.B.4,85th Leg.,
R.S. $ l.0l (enacting Tnx. Gov'r Coon 5752.057), S 6.01 (amending TBx. Coon Cnru. Pno.
art. 2.13). The laws governing child protective services are civil and not criminal; thus, the victims and witnesses of child abuse will not enjoy these modest protections provided by Senate Bill 4 to crime victims and witnesses.
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Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 4 of 18
6. The State of Texas has made clear through its laws and through the policies
promulgated by the Department that a primary consideration in child protection cases is to serve the best interests of the children involved. See, e.g., Tsx. Ferra. CoonAuN. $ 153,002 ("The best interest of the child shall always be the primary consideration of the court in determining the
issues of conservatorship and possession of and access to the child."); Tsx, DEP'T oF FAMILY & Pnor. SERVS., CHrr-o PRorscttvE SERVICE HeNosoorc $ 1100 (stating the purpose of CPS is to protect children, act in their best interest, and to seek involvement of parents and other family members in the effort to preserve the family unit). To achieve the best outcomes for these children, Texas law requires that the Department work to rehabilitate and preserve the family unit if at all possible, and to rely on other family members and relatives as caregivers to lessen
the impact of the trauma children experience when they are separated from their parents.
7. Senate Bill 4 presents significant barriers to achieving the best outcomes for
children in State care, and represents a stark departure from Texas' plainly stated intent that we prioritize the safety and stability of our State's children and their families. The bill's provisions, which apply to county attorneys and their employees as "local entities," will require that, instead
- of working toward family preservation a goal presumed by our law to serve a child's best
interest - the attorneys in my office assist with the enforcement of immigration laws, leading to
the arrest and deportation of parents and relatives, and the separation and destruction of children's families. See TBx. Feu. CooB AuN. $$ 262.201,262.205,263.101-102,263.306
(requiring the Department to return the child to parents unless there is a continuing danger, and to provide rehabilitative services to facilitate family reunification); Tex. S.B. 4, 85th Leg., R.S.
$ l.0l (enacting Tsx. Gov'r CoDE $$ 752.051(5),752.053). In other words, Senate Bill 4
DECLARATION OF VINCE RYAN. HARRIS COUNTY ATTORNEY - Paee 3 of 8

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 5 of 18

requires county attorneys to put immigration law enforcement ahead of protecting the welfare of

children.
8.

My office has identified the following typical situations we encounter in child

protection cases and Senate Bill4's effect on each.
9. First, Senate Bill 4 will discourage reporting of child abuse in immigrant

communities. Investigations into the neglect or abuse of a child begin with a report which

triggers the Department stepping in to ensure the child's safe care. See Tax. Feu. CooB AuN.

$ 261.101. The Department and the attorneys, investigators, and other employees of the Harris County Attorney's Office rely on County residents and community members to report instances

of abuse or neglect, as well as to provide statements and evidence which aid in the investigation
and prosecution of child protection cases. Both the terms of Senate Bill 4 and the political
rhetoric surrounding it have created intense fear in immigrant communities. Members of

immigrant communities in Harris County will no longer come forward with information vital to

the protection of children knowing that with the passage of Senate Bill 4, the employees of my

office must assist in the enforcement of immigration laws. The initial reports of child abuse that

are necessary to trigger an investigation simply will never occur in the first instance. The result

is that children, including United States citizen children, will continue to be abused or neglected

because of the fear a witness or victim has of deportation.
10. Second, Senate Bill 4 will push children who are well-cared for by their parents

into the foster care system simply because the parents are undocumented. Under Texas law, the

Department may only take custody of a child when there is evidence showing that the parents
have engaged in conduct which places the child in danger. See Trix. Faut. Coop ANN.

$$ 262.104,262.201,262.205. Danger includes abandonment and when parents are taken into

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Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 6 of 18
the custody of immigration officials, their children may be considered abandoned. Under Senate
Bill 4's provisions, when parents of children, including United States citizen children, are
detained or deported, the Department will be obligated to take custody of and provide for those children even in the absence of any parental wrongdoing. The consequence will be increased costs to the County and the State in the time and resources necessary to file and prosecute these cases, as well as to house and safely care for the children involved. Moreover, children will suffer the irreparable trauma of being separated from their families, as well as the uncertainty
and impermanency of being placed in the State's care.
1 1. Senate Bill 4 will also negatively impact children who are now or who may
become involved with the Department by severely limiting the options available for their
placement outside of State care because "kinship placements" often involve undocumented adult relatives in Harris County. Texas law heavily prefers kinship placements because placing a child with known relatives greatly reduces the trauma a child suffers when he or she is separated from
their parents. See S.B. 11,85'h Leg., R.S., $ 18 (2017) (Trx Fau. Cooe Ar.w.$ 264.151). Undocumented relatives will no longer present themselves as available to care for a child in the
fear that they, too, will be subject to investigation, arrest, and deportation proceedings. The result will be that children, who would have had the opportunity to remain with family prior to the implementation of Senate Bill 4, will now languish in the State's custody.
12. Finally, when parents are undocumented, the goal of family reunification will be
impossible because county attorneys will be forced to enforce immigration laws first and
thwarted from pursuing the best interest of the child by reunification with the family.
13. In one specific case, a father was able to provide care for his three children when
a court placed them with him based on a finding that the mother was unfit. When the mother
DECLARATION OF VINCE RYAN. HARRIS COUNTY ATTORNEY - Pase 5 of 8

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 7 of 18
subsequently reported the father to ICE, he was apprehended and detained, at which point the Department was notified. The father requested the three children be placed with his sister, but because of the children's behavioral issues and medical needs, she was unable to provide for
their care. The siblings were consequently split up and two of the three were placed in foster
care. This example also demonstrates how the enforcement of immigration laws may be
weaponized against parents in family law disputes with the result of harming children.
14. In another case, a father was provided with custody rights to his child in a CPS
case. However, in a subsequent case involving a later-born child, he refused to come forward as
a possible placement for the newly-born infant because he was afraid of being reported to
immigration enforcement officials and deported. The infant was, as a result, placed in foster care.
15. In a third case, a child's mother was deported and she left the child with another
couple in her community. Subsequently, that couple was deported and the child was left with a third family. The Department became involved when it was reported the child was abused in this third home. The child was ultimately placed in foster care.
16. All child protective cases can be traumatic to children, but that trauma can be
minimized when the government is free to pursue the best interest of the child, as the law requires. SeeTpx. Fana. Coop ANN.$ 153.002. Senate Bill 4 would greatly exacerbate that trauma by requiring county attomeys to put immigration laws ahead of the best interest of the child resulting in more separations of children from family members. Senate Bill 4 will also have the effect ofdiscouraging reports ofchild abuse and neglect in the first instance for fear of deportation. This trauma, which will impact children regardless of their citizenship status, is one
that cannot be undone. Senate Bill 4 will cause immediate, irreparable damage to Texas
- - children including United States citizens if the court allows its provisions to go into effect.
DECLARATION OF VINCE RYAN. HARRIS COUNTY ATTORNEY - Paee 6 of 8

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 8 of 18
17. Moreover, in all cases in which my office represents the Department, Senate Bill
4 presents a clear conflict for the attorneys who are tasked with achieving the Department's goals. When the Department determines that a child may safely be reunified with his or her family, the attorneys in my office who represent the Department are legally and ethically bound to work toward the achievement of that goal. However, under Senate Bill 4, they would at the same time be required to assist in the enforcement of immigration laws which could lead to the separation of the family and further trauma to the child. This conflict is direct and irreconcilable.
18. Texas law clearly announces this State's public policy that we preserve and
protect children's safety, and that we place children's best interests at the center of all
determinations regarding their welfare. However, as Senate Bill 4 provides no similar protections for children who are placed in the State's custody as a result of abuse or neglect, it plainly stands in violation of this State's public policy that we protect children, including United States citizen children, from the devastating effects of family separation.
19. Throughout the pendency of child protection proceedings, my office and the
Department work closely with law enforcement and the community in the effort to obtain safety
and permanency for abused and neglected children, and to achieve outcomes which will serve
their best interests. The complex nature of child abuse cases demands that all options be explored
to achieve this State's legislatively mandated goals to protect children, preserve the unity of families, and reunify children with their parents. Under Senate Bill 4, where the attorneys in my office are required to assist with the enforcement of laws which could lead to the detention and
deportation of parents and relatives of children, including those of United States citizen children, the options available to achieve the State's goals will be severely limited, and local governmental
discretion to take the course of action that will best serve the interest of individual children in
DECLARATION OF VINCE RYAN HARRIS COUNTY ATTORNEY - Pase 7 of 8

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 9 of 18

individual situations will tre eradicated. In addition. rather than working toward preservation of thc lamil;- unit. my ofllce will now be called upon to assist in enforcing law,s which lead to famill scparation and the continued placement <ll'childrcn in the State's care. As a result. the plain eftect of Scnate Bill 4 is to clo irreparable harm to children with undocumented familr.
members or r.vho live in imn:igrant communities.
20. Finally" the courl should lake notice of thc difficulties Texas's child protective
system has been experiencing. ,\'ec 14.D. v. Ahbott.l5? F. Supp. 3d 684. 828 (S.D. Tex. 2015) (linding the State ol'J'exas violates thc substantivc due process right of children in fosler care to be tiee liont an unreasonable risk of harm including "a system rvhere rape. abuse. psychotropic
medication. and instability are the norm"). l'he additional strains on the system Senate Ilill 4
rvill cause will hi:vc the practical effect of harming all children in a system that is srruggling to
provide basic salcty to the abused and neglected children in state care.

I declare under pcnalty of perjury ftat the lbregoing is true and correct.

'1

Executed in l-larris Countv. I'exas on the

) day ofJ

17.

ir

I: RYA

COUNTY ATTORNEY

DECI,ARAT|ON oF vrNCI RyAN. HARRts coUNTy ATTORNEy - paee 8 of 8

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 10 of 18
Traducci6n
EN LA CORTE DISTRITAL DE LOS ESTADOS UNIDOS PARA EL DISTRITO OCCIDENTAL DE TEXAS DIVISION DE SAN ANTONIO

CIUDAD DE EL CENIZO, TEXAS, et al., $

Demandantes

$

$

CIUDAD DE AUSTIN, et al.,

$

Demandantes -Intervinientes

$

$

v

$

$

EL ESTADO DE TEXAS, et al.,

$

Demandados

$

ACCION CIVL NO. 5:17-cv-404-OLG

DECLARACION DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS

Conforme a 28 U.S.C. 5 1746, yo, Vince Ryan, declaro lo siguiente:
1. Mi nombre es Vince Ryan y soy mayor de dieciocho aflos de edad. Los hechos

plasmados en esta declaraci6n son verdaderos y correctos segrin mi leal saber y entender.
2. La Oficina del Abogado del Condado de Harris representa al condado m6s grande
de Texas, a sus departamentos, funcionarios elegidos y empleados, en todo asunto civil que

involucre las funciones del Condado. El Condado de Harris es uno de los condados m6s diversos
de los Estados Unidos e incluye comunidades inmigrantes significativas de todo el mundo.

Debido a los patrones de inmigraci6n en las riltimas d6cadas, muchos niflos que son ciudadanos

de los Estados Unidos tienen padres y otros parientes adultos que son indocumentados.
3. Uno de los mandatos de la Oficina del Abogado del Condado de Harris es el de

representar al Departamento de Servicios Familiares y Protectores de Texas (el "Departamento")

en acciones legales que involucran los Servicios De protecci6n infantil. TBx. Feu. Coop ANN.

$ 264.009 (que dispone que el abogado del condado representard al Departamento). Nuestra
oficina radica un promedio de 1,400 casos al aflo a nombre del Departamento, cada uno de los

DECLARACIoN DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS _ PfgiNA 1 dE 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 11 of 18 Traducci6n
cuales podria involucrar a varios niflos que han estado sujetos a abuso o negligencia en sus hogares. En la actualidad, mi oficina est6 representando al Departamento en 2,962 casos activos que involucran a aproximadamente 4,600 nifios bajo el cuidado temporal o permanente del
Estado.
4. El Proyecto de Ley 4 del Senado ("Senate Bill 4") define "entidad local" como
una que incluye "un funcionario o empleado de... un condado... incluyendo.... Abogado de condado." Tex. S.B. 4, 85th Leg., R.S. $ 1.01 (promulgando Tex. Gov'tCoop $ 752.051(5)). El Senate Bill 4 prohibe una "politica", "patr6n o pr6ctica" que tenderia el efecto de "prohibir o materialmente limitar la exigencia del cumplimiento de las leyes inmigratorias." "Tex. S.B. 4, 85th Leg., R.S. $ i.01 (promulgando Tex. Gov'r CoDE $ 752.053(a)). Siendo asi, un abogado del condado no puede incurrir acto alguno que "materialmente limite" las leyes inmigratorias. El Senate Bill 4 exonera a ciertas 6reas de sus efectos, especificamente a hospitales, organizaciones
religiosas, organizaciones de salud priblica, y ciertos centros comunitarios, pero de ninguna
forma aborda los asuntos de derecho civil de los servicios de protecci6n infantil y el sistema de cuidados de menores por no parientes. Ver Tex. S.B. 4, 85th Leg., R.S. $ 1.01 (promulgando Tpx. Gov't Coop 5 752.052). De hecho, en el seno de la C6mara de Representantes, se propuso
una enmienda para exonerar al Departamento de Servicios Familiares y Protectores de los
efectos del Senate Bill 4, pero fue rechazado como parte de un rechazo en masa de docenas de enmiendas. Ver House Amd. No. 145, Tex. S.B. 4, 85th Leg., R.S.; Tex. H.J. 1929, Apr.26,2Ol7
(Voto Registrado No. 460).
5. Asimismo, el Senate Bill 4 contiene algunos esfuerzos por aminorar sus efectos
sobre victimas y testigos de actos ilicitos, pero restringe tales disposiciones a actos criminales.
Ver Tex. S.B. 4, 85th Leg., R.S. $ 1.01 (promulgando Tex. Gov'r Coop 5752.057), g 6.01
DECLARACIoN DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS _ Pagina 2 de 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 12 of 18 Traducci6n
(enmendando el Tpx. Copp Cnlv. PRo. art. 2.13). Las leyes que rigen los servicios de protecci6n infantil son en su mayoria civiles y no criminales; por lo tanto, las victimas y los
testigos de abuso infantil no gozardn de estas modestas protecciones dispuestas por el Senate Bill
4 a victimas y testigos de crimenes.
6. El Estado de Texas ha dejado bien sentado, a trav6s de sus leyes y las politicas
promulgadas por el Departamento, que una consideraci6n primordial en los casos de protecci6n infantil es servir los mejores intereses de los niflos involucrados. Ver, v.gr., TEx. Fev. Coop ANN. $ 153.002 ("Los mejores intereses del niflo siempre ser6n consideraci6n primordial de la corte al determinar los temas de conservaduria y posesi6n de, y acceso al, niflo."); Tex. Dpp't or'
Favruy & Pnor. SeRvs., Csrr-o PRorpcrrvE SERVTcE HaNosoor $ I100 (disponiendo que el
prop6sito de CPS es proteger a los niflos, actuar en sus mejores intereses, y buscar el
involucramiento de padres y otros parientes en un esfuerzo por preservar la unidad familiar).
Para alcanzar los mejores resultados para estos niflos, la ley de Texas requiere que el
Departamento trabaje en pos de la rehabilitaci6n y la preservaci6n de la unidad familiar en la medida de lo posible, y que dependa de otros miembros de la familia cercana y parientes, como
guardianes ) para aminorar el impacto del trauma que experimentan los niflos cuando son
separados de sus padres.
7. El Senate Bill 4 presenta barreras significativas en contra de poder alcanzar los
mejores resultados para los niflos bajo el cuidado del Estado, y representa un desvio marcado de
la intenci6n claramente declarada de Texas, que es de que nosotros demos prioridad a la seguridad y estabilidad de los niflos de nuestro Estado y sus familias. Las disposiciones del Senate Bill 4, que aplica a abogados del condado y a sus empleados como "entidades locales",
requerir6n que, en lugar de trabajar en pos de la preservaci6n de la familia - una meta presumida
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Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 13 of 18 Traducci6n
por nuestra ley para servir los mejores intereses de un niflo - que los abogados de mi oficina
asistan con el cumplimiento de leyes inmigratorias, cuyo fin ser6 el arresto y la deportaci6n de padres y parientes, y la separaci6n y destrucci6n de las familias de los niflos. Ver,Tsx.Few. Coop At.n't. $$ 262.201,262.205,263.101-102,263.306 (que requieren que el Departamento devuelva al niflo a sus padres a menos que haya un peligro persistente, y que preste servicios de rehabilitaci6n para facilitar la reunificaci6n de la familia); Tex. S.B.4, 85th Leg., R.S. $ 1.01 (promulgando TEx. Gov't Coop $$ 752.051(5),752.053). En otras palabras, el Senate Bill 4
requiere que los abogados del condado antepongan el cumplimiento de las leyes inmigratorias al bienestar de los niflos.
8. Mi oficina ha identificado las siguientes situaciones tipicas que encontramos en
casos de protecci6n de niflos y el efecto del Senate Bill 4 sobre cada uno de ellos.
9. Primero, el Senate Bill 4 desalentar6 los reportes de abuso infantil en
comunidades de inmigrantes. Las investigaciones de casos de negligencia o abuso infantil
comienzan con un informe que activa al Departamento a interponerse para asegurar el cuido
seguro del niflo. Ver Tpx. Fev. CooE $ 261.101. El Departamento y los abogados,
investigadores y otros empleados de la Oficina del Abogado del Condado de Harris dependen de los residentes del Condado y de los miembros de las comunidades para que reporten instancias de abuso o negligencia, y para que rindan informes y evidencia que ayuden a la investigaci6n y
enjuiciamiento de los casos de protecci6n infantil. Tanto los tdrminos del Senate Bill 4 como el discurso politico que lo rodea han creado miedo intenso en comunidades inmigrantes. Los miembros de las comunidades inmigrantes del Condado de Harris ya no dardn la cara con informaci6n vital para la protecci6n de los niflos sabiendo que con la promulgaci6n del Senate Bill 4, los empleados de mi oficina podrian estar requeridos a asistir con el cumplimiento de las

DE

9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 14 of 18 Traducci6n

leyes inmigratorias. Los reportes iniciales de abuso infantil que son necesarios para activar una investigaci6n sencillamente nunca van a darse, en una primera instancia. El resultado ser6 que

los nifros, incluyendo niffos de ciudadania estadounidense, continuar6n siendo abusados o

descuidados debido al miedo a la deportaci6n que podria tener un testigo o victima.
10. Segundo, el Senate Bill 4 empujar6 a niflos que est6n siendo bien cuidados por sus

padres al sistema de cuidados de menores por no parientes simplemente porque sus padres no

est6n documentados. Bajo la ley de Texas, el Departamento solamente puede tomar custodia de

un niflo cuando se tiene evidencia de que los padres se han conducido de forma que ponga en

peligro al niflo. Ver Tax. Fev. Coop $$ 262.104,262.201,262.205. El peligro incluye abandono y cuando los padres son tomados en custodia por funcionarios de inmigraci6n, sus niflos podrian

considerarse abandonados. Bajo las disposiciones del Senate Bill 4, cuando los padres de niflos,

incluyendo niflos de ciudadania estadounidense, son detenidos o deportados, el Departamento

estar6 obligado a tomar custodia y cuidar de esos niflos arin en la ausencia de acto ilicito alguno

de sus padres. La consecuencia ser6 un aumento en los costos al Condado y al Estado en tiempo
y recursos necesarios para radicar y enjuiciar estos casos, y paru albergar y cuidar en forma

segura a los niflos involucrados. Asimismo, los niflos sufrir6n el trauma irreparable de quedar

separados de sus familias, asi como la incertidumbre e impermanencia de quedar bajo el cuidado

del Estado.

l.I

El Senate Bill 4 tambidn impactar6 negativamente a los niflos que est6n o podrian

estar a futuro involucrados con el Departamento, al limitar en forma severa las opciones

disponibles para su colocaci6n fuera del cuidado del Estado porque las "colocaciones con
parientes" frecuentemente involucran parientes adultos indocumentados en el Condado de

Harris. La ley de Texas abrumadoramente prefiere colocaciones con parientes porque el colocar

DECLARACIoN DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS _ P6EiNA 5 dE 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 15 of 18 Traducci6n
a un niflo con parientes conocidos reduce grandemente el trauma que un nifro sufre cuando 6l o ella queda separado(a) de sus padres. Ver Tpx Fav. CooB 5 264.151 (recientemente promulgado
en el Senate Bill 1l). Los parientes indocumentados ya no se presentar6n como estando
disponibles para cuidar del niflo por el miedo de que ellos tambidn quedar6n expuestos a
investigaci6n, arresto y proceso de deportaci6n. El resultado ser6 que niflos que habrian tenido la
oportunidad de permanecer con familia antes de la implementaci6n del Senate Bill 4, ahora
languidecer6n en la custodia del Estado.
12. Finalmente, cuando los padres sean indocumentados, la meta de reunificaci6n
familiar ser6 imposible de lograr porque los abogados del condado estariin obligados a hacer cumplir las leyes inmigratorias primero, y quedar6n frustrados de perseguir los mejores intereses del niflo, que seria su reunificaci6n con la familia.
13. En un caso especifico, un padre pudo cuidar a sus tres hijos cuando una corte los
puso con dl con base a determinar que la madre no estaba apta. Cuando la madre posteriormente
report6 al padre al ICE, 6l fue arrestado y detenido, momento en el cual el Departamento fue notificado. El padre solicit6 que los tres niflos fueran colocados con su hermana, pero debido a
los temas de conducta y necesidades mddicas de los niflos, ella no pudo cuidarlos. Los hermanos consecuentemente fueron separados y dos de los tres fueron puestos en cuidados de menores por no parientes. Este ejemplo tambi6n demuestra c6mo el cumplimiento de las leyes inmigratorias podria ser utilizado como arma contra parientes en derecho familiar con el daflo resultante a los niflos.
14. En otro caso, un padre fue adjudicad los derechos de custodia de su niflo en un
caso CPS. Sin embargo, en un caso posterior involucrando a un niflo nacido posteriormente, 6l rehus6 presentarse como una posible colocaci6n para el reci6n nacido por miedo a ser reportado
DECLARACION DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS - P6eina 6 de 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 16 of 18 Traducci6n
a funcionarios de inmigraci6n y ser deportado. Como resultado, el reci6n nacido fue puesto en
cuidados de menores por no parientes.
15. En un tercer caso, la madre de un niflo fue deportada y dej6 al niflo con otra pareja
en su comunidad. Posteriormente, esa pareja fue deportada y el niflo fue dejado con una tercera familia. El Departamento se vio involucrado cuando fue reportado que el niflo estaba siendo abusado en su tercer hogar. A final de cuentas, el nifio fue puesto en cuidado de menores por no
parientes.
16. Todos los casos de protecci6n de nifios pueden ser traum6ticos para los niflos,
pero ese trauma puede minimizarse cuando el gobierno estii libre para perseguir los mejores intereses del niflo, como la ley requiere. VerTpx. Fev. Coop Ann. $153.002. El Senate Bill 4
agravaria grandemente ese trauma al requerir que los abogados del condado antepongan las leyes inmigratorias a los mejores intereses del niflo, resultando en m6s separaciones de niflos de sus
parientes. El Senate Bill 4 tambidn tendr6 el efecto de desalentar reportes de abuso infantil y
negligencia en una primera instancia, por miedo a la deportaci6n. Este trauma, que impactard a los niflos independientemente de si son ciudadanos o no, es uno que no puede ser deshecho. El
Senate Bill 4 causar6 daflo inmediato e irreparable a los niflos de Texas- incluso a ciudadanos
estadounidenses- si la corte permite a estas disposiciones cobrar vigencia.
17. Asimismo, en todos los casos en que mi oficina representa al Departamento, el
Senate Bill 4 presenta un claro conflicto para los abogados encargados de alcanzar los objetivos del Departamento. Si el Departamento determina que un niflo puede ser reunificado con su familia en forma segura, los abogados de mi oficina que representen al Departamento quedan legal y 6ticamente obligados a trabajar en pos del alcance de esa meta. Sin embargo, bajo el Senate Bill 4, ellos al mismo tiempo estarian obligados a asistir en el cumplimiento de las leyes
DECLARACIoN DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS _ Pdgina 7 de 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 17 of 18 Traducci6n
inmigratorias que podrian conducir a la separaci6n de la familia y un mayor trauma al niflo. Este conflicto es directo e irreconciliable.
18. La ley de Texas claramente anuncia la politica priblica de este Estado, que es de
que preservamos y protegemos la seguridad de los niflos, y que ponemos los mejores intereses de los niflos en el centro de todas las determinaciones respecto a su bienestar. Sin embargo, ya que no dispone protecciones similares para niflos que son puestos bajo la custodia del Estado como
resultado de abuso o negligencia, el Senate Bill 4 claramente viola la politica pfiblica de este
Estado, de que protegemos a los niflos, incluyendo niflos de ciudadania estadounidense, de los efectos devastadores de una separaci6n familiar.
19. A lo largo de un proceso de protecci6n infantil, mi oficina y el Departamento
trabajan estrechamente con la policia y la comunidad en un esfuerzo por lograr la seguridad y perrnanencia de niflos abusados y descuidados, y para alcanzar objetivos que sirven sus mejores intereses. La naturaleza compleja de los casos de abuso infantil demanda que todas las opciones sean exploradas para alcanzar las metas ordenadas por la legislaci6n de este Estado, que son
proteger a los niflos, preservar la unidad de las familias, y reunificar a ios niflos con sus padres.
Bajo el Senate Bill 4, en el que los abogados de mi oficina estar6n obligados a prestar asistencia en el cumplimiento de leyes que podrian conducir a la detenci6n y deportaci6n de padres y parientes de los niflos, incluyendo los de niflos de ciudadania estadounidense, las opciones disponibles para alcanzar las metas del Estado quedar6n severamente limitadas y la discreci6n del gobierno local de tomar el curso de acci6n que mejor sirva los intereses de los niflos individuales en situaciones individuales ser6 erradicada. Ademds, en yez de trabajar para preservar la unidad familiar, mi oficina en adelante quedar6 obligada a asistir en el cumplimiento de leyes que llevan a la separaci6n de familias y ala colocaci6n continua de niflos en el cuidado
DECLARACION DE VINCE RYAN. ABOGADO DEL CONDADO DE HARRIS - PSeina 8 de 9

Case 5:17-cv-00404-OLG Document 116-1 Filed 06/26/17 Page 18 of 18 Traducci6n
del Estado. Como resultado de ello, el efecto obvio del Senate Bill 4 es hacer daflo irreparable a
nifios con parientes indocumentados o que vivan en comunidades de inmigrantes.
20. Finalmente, la corte deberia tomar nota de las dificultades que el sistema de
protecci6n infantil de Texas ha venido experimentando. Ver M.D. v. Abbott, 152F. Supp. 3d 684, 828 (S.D. Tex. 2015) (decidiendo que el Estado de Texas viola el derecho al debido proceso
sustancial de los niflos bajo cuidados no familiares de quedar libres de un riesgo irrazonable de
daflo, incluyendo "un sistema donde la violaci6n, el abuso, la medicaci6n psicotr6pica y la instabilidad son la norma"). El estr6s adicional sobre el sistema que causar6 el Senate Bill 4
tendr6 el efecto prdctico de daflar a todos los niflos en un sistema que estS luchando por brindar seguridad b6sica a niflos abusados y descuidados bajo el cuidado del Estado.

Declaro so pena de perjurio que lo anterior es verdadero y correcto

el Firmado en el Condado de Harris, Texas

23

dia de junio de 2017 .

" Tince Ibtan
VINCE RYAN, ABOGADO DEL CONDADO DE HARRIS

DECLARACI6N DE VINCE RYAN. ABOGADO DEL CONDADo DE HARRIS _ Pdeina 9 de 9

 
 Case 5:17-cv-00404-OLG Document 97 Filed 06/23/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

CITY OF AUSTIN’S NOTICE OF FILING DECLARATION OF ANGELOS G. ANGELOU IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

TO THE ORLANDO L. GARCIA, UNITED STATES DISTRICT JUDGE:

Plaintiff-Intervenor the City of Austin (“Austin”) hereby gives notice that it is filing the

Declaration of Angelos G. Angelou, attached herein as Exhibit 1, in support of its motion for

preliminary injunction (Doc. 57).

Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov

Case 5:17-cv-00404-OLG Document 97 Filed 06/23/17 Page 2 of 2
CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 23rd day of June, 2017.
/s/ Michael Siegel MICHAEL SIEGEL

Case 5:17-cv-00404-OLG Document 97-1 Filed 06/23/17 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

DECLARATION OF ANGELOS G. ANGELOU IN SUPPORT OF THE CITY OF AUSTIN’S MOTION FOR PRELIMINARY INJUNCTION Pursuant to 28 U.S.C. §1746, I declare, certify, verify, and state, on this day, under penalty of perjury, that the following is true and correct. 1. My name is Angelos G. Angelou, I am more than 18 years of age, and am capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct, and I am competent to testify to them. 2. I am the Founder and Principal Executive Officer of AngelouEconomics, an economic development and site selection consultancy based in Austin, Texas. I have attached a true and complete copy of my curriculum vitae as Exhibit 1. 3. I am a Governor appointee to the CPRIT Oversight Committee in Texas, a founding member of the Site Selector’s Guild, a fellow at IC2, and an Advisory Board member for the College of Natural Sciences at the University of Texas at Austin. 4. I have been engaged in economic development for 30 years, with specific expertise in technology based economic development, public policy, investment attraction, and marketing.

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5. I started AngelouEconomics 22 years ago and we have become leaders in independent economic research and development. The firm has conducted strategic planning work for more than 650 communities across the U.S. and abroad. In our site selection practice, we have sited more than $18 billion worth of capital investment projects for major corporate clients, including HP, Dell, GE, Oracle, and Intel.
6. With respect to economic impact studies, we have completed more than 210 of these types of studies, which includes public policy work for trade associations and legislators, universities, non-profit organizations, EB-5 Visa Regional Centers, major events and festivals, and corporate clients.
7. To date, I have been involved in 3 cases of litigation, where I have provided expert testimony. The first was a case of NASCAR versus the Fort Worth ISD, where I was retained as an expert by the ISD. The second was a case where I was retained as an expert by the Laredo Race Track, and I opined on the impact that the track would have on the community. In the third case, I provided expert testimony in the case of Labor Unions versus Texas Contractors.
8. I have been retained as an expert by the City of Austin. I am providing this written testimony to express my expert opinion that the passage of Senate Bill 4 and the enforcement of this law will cause harm to Texas’ economy. Senate Bill 4 weakens prospective investment and talent attraction efforts throughout Texas, while precipitating declines in the state’s available workforce. Communities rely on their ability to attract new investments and workers to help make their economies more resilient and increase their quality of life.
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9. Texas’ economic health is of particular importance to the nation as a whole. Texas is the second largest state economy in the U.S. and is the 12th largest economy in the world. Our state is a major destination for foreign investment and international talent. Limiting the ability of Texas to attract these investments will impair the national economy. Senate Bill 4 Will Create a Perception that Texas is Anti-Immigrant
10. On the national stage, discriminatory legislation like Senate Bill 4 will create a negative perception of Texas, which will make the state vulnerable to boycotts by outside firms or organizations that seek to establish or expand operations or host events within the state. Ultimately, this legislation will hurt Texas’ likelihood of landing these investments, making it a less competitive state on the national stage.
11. Outside States have shown a willingness to enact bans on state-funded travel to areas that have passed any form of discriminatory legislation. Senate Bill 4 will make Texas vulnerable to being targeted by these travel bans.
12. To investigate the perceptions of this legislation within the economic development community, AngelouEconomics (AE) distributed a survey to members of the Texas Economic Development Council (TEDC). TEDC is a statewide, non-profit professional association dedicated to the development of economic and employment opportunities in Texas. Respondents included economic development professionals from small and medium sized communities throughout Texas. From the survey, AE determined that 1 in 5 economic development organizations are against Senate Bill 4, and 1 in 4 economic development organizations believe Senate Bill 4 will impact their economic development efforts in a negative way, with the majority of these respondents believing the law will have long term impacts.
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13. If a prospective business or site selector views this legislation as discriminatory or problematic for future employees, they will pass over Texas in favor of sites in other states with more inclusive policies and perceptions.
14. Additionally, discriminatory legislation will also damage Texas’ likelihood of landing conferences and events from national businesses and organizations (AngelouEconomics, 2017)1. In fact, the American Immigration Lawyers Association recently decided to relocate its 2018 convention out of Grapevine, Texas in response to Senate Bill 4. Typically, these events are booked many years in advance and their cancelation incurs penalties for the conference. The convention would have brought 3,000 attendees and generated a sizeable economic impact for the area (Aguilar, 2017)2.
15. The opportunity cost of Senate Bill 4 is likely to be massive, yet largely unknown, since Texas may no longer be considered by many prospective businesses and organizations for investments, conference or events. Senate Bill 4 Will Inhibit the Flow of Foreign Nationals to Texas Due to the Negative Perceptions and Risks, Both Real and Perceived
16. The H-1B visa program is a tool used by high-tech companies to bring foreign-born, high skilled workers into the U.S. This year, the number of applicants dropped by 236,000 in the U.S. Many factors have placed downward pressure on the number of applicants, but growing anti-immigration sentiment is thought to have played a significant role.
17. For Texas, enacting a statewide bill that is viewed as anti-immigrant by foreign nationals will weaken the state’s ability to attract high skilled workers to Texas firms. The existing
1 AngelouEconomics, The Cost of Discriminatory Legislation: Measuring the Economic Impact of Discriminatory Legislation to the State of Texas, 2017. 2 The Texas Tribune, Lawyers convention leaves Texas over state’s new immigration law, 2017.
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economic literature overwhelmingly demonstrates the positive benefits that foreign-born workers bring to the U.S. economy. Peri et al. (2015) used the H-1B visa program to investigate the relationship between foreign-born, high skilled workers and their nativeborn counterparts. To do so, the authors analyzed data from 1980-2010, a period in which the number of college-educated STEM workers grew from 2.4% of total employment to 3.2%. (Peri et al., 2015)3. Over this period foreign-born workers were responsible for 80% of the growth in high skilled employment. The authors found that a 1% increase in foreignborn STEM workers increased the real wages of college-educated natives by 7-8% and the wages of non-college-educated natives by 3-4% (Peri et al., 2015)4. Additionally, the authors found no evidence to suggest that an increase in the number of foreign-born workers altered the employment levels of native-born workers. 18. Kerr and Lincoln (2010) conducted another study which investigated the relationship between the amount of H-1B visas and the number of patents filed in cities across the U.S.5. To conduct their analysis, the authors collected data from multiple U.S. cities spanning 1995-2008. They found that in the years when the national amount of H-1B visas rose, the number of patents were larger in cities with many H-1B visa holders compared to cities with fewer visa holders (Kerr and Lincoln, 2010)6. 19. In Texas, 11.9% of the international student population that attended a public institution in 2015 were from a Latin American country (Texas Higher Education Board, 2015)7.
3 Peri et al., Foreign STEM Workers and Native Wages and Employment in U.S. Cities, 2015. 4 Ibid. 5 Kerr and Lincoln, The Supply Side of Innovation: H-1B Visa Reforms and U.S. Ethnic Invention, 2010. 6 Ibid. 7 Texas Higher Education Coordinating Board, 2015.
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Creating anti-immigration sentiment in Texas will discourage students from Latin American countries from attending Texas universities. To illustrate how this will negatively impact the Texas economy, consider the change in international student enrollment from 2005 to 2015. In 2005, there were 46,871 international students in Texas. These students generated an economic impact of $891 million and supported 15,490 fulltime job equivalents throughout the state (NAFSA, 2017)8. In 2015, there were 82,184 international students in Texas. These students generated an economic impact of $1.9 billion and supported 24,269 full-time job equivalents throughout the state (NAFSA, 2017)9. In essence, for every 7 international students enrolled in an American institution, 3 U.S. jobs are created (NAFSA, 2015)10. Therefore, by hurting Texas’ chances of attracting international students, lawmakers will be foregoing U.S. jobs that are supported by the presence of international students.
Immigrants Benefit Economic Growth 20. Immigrant populations are nearly twice as likely to be entrepreneurs compared to their
native-born counterparts (Kauffman, 2015)11. 21. Disenfranchising current and incoming immigrants will stem rates of entrepreneurship and
business start-ups. Fewer immigrants will lead to stymied rates of entrepreneurship. This is likely to be a long-term impact with significant implications across the nation due to an increasing rate of new entrepreneurs among immigrant populations. In 2014, 29% of new
8 NAFSA, The Economic Benefits on International Student Enrollment in Texas – a Ten Year Trend. 9 Ibid. 10 NAFSA, Texas Benefits from International Students, 2015. 11 Ewing Marion Kauffman Foundation, The Economic Case for Welcoming Immigrant Entrepreneurs, 2015.
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entrepreneurs were immigrants, which is up from just 13% in 1997 (Kauffman, 2015)12. Lower rates of entrepreneurship will lead to fewer jobs created each year. Immigrants employ 1 out of every 10 private sectors workers in the U.S. (Karkos, 2016)13. Fewer immigrants means fewer job opportunities for all labor force participants. 22. Immigrant entrepreneurship means more than just facilitating small start-ups. From 2006 to 2010, the total net business worth of Texas immigrant entrepreneurs was $10 billion (Council, 2015)14. The impact could be much larger for major success stories – even if those successes are much rarer. More than 40% of Fortune 500 companies in 2010 were founded by a first or second generation immigrant (Kauffman, 2015)15. 23. The implications for Texas are more pronounced, given that Texas has higher proportions of immigrant populations. In 2015, the U.S. average foreign-born percentage of the population was 13.5%. In contrast, 17.0% of Texas’ population is foreign born (MPI, 2015)16. Moreover, Texas ranks in the top 10 for states with the largest percentage of existing immigrant business owners. In 2014, 18.4% of Texas business owners were immigrants. New York had the highest proportion, at 25.2%, and South Dakota had the lowest, at 2.2% (Tareque, 2016)17. For major metro areas, those percentages are much
12 Ibid. 13 Susan Downs-Karkos, Welcoming Communities Unlock the Potential of Immigrant Entrepreneurs, 2016. 14 American Immigration Council, The Political and Economic Power of Immigrants, Latinos, and Asians in the Lone Star State, 2015. 15 Ewing Marion Kauffman Foundation, The Economic Case for Welcoming Immigrant Entrepreneurs, 2015. 16 Migration Policy Institute, State Immigration Data Profiles, 2015. 17 Inara Sunan Tareque, Chris Jackson, and Arnobio Morelix, Want to be like Silicon Valley? Welcome Immigrant Entrepreurs, 2016.
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higher. In 2010, the rates of immigrant businesses owners were as follows: 31% in Houston, 25% in Dallas, and 25% in San Antonio (Council, 2015)18. 24. To give the impact a local perspective, Senate Bill 4 will have negative implications for local economic development efforts aimed at growing and facilitating targeted industry clusters for communities throughout Texas. Approximately 25% of engineering and technology firms started between 2006 and 2012 had at least one immigrant founder (Kauffman, 2015)19. Technology is a targeted industry for many regions throughout Texas, including Austin, one of the premier technology hubs in the country (Chamber, 2017)20. 25. Senate Bill 4 has the potential to cause negative impacts to key industries and disrupt associated supply chains, with longer term effects seen in the losses in the future workforce. 26. Due to both the fears of Senate Bill 4 and the enforcement of the law, Texas may see a decrease in available workers in key sectors, such as Tech, Construction, Hospitality, and Agriculture, which employ a large share of immigrants. 27. In 2006, the Texas Comptroller estimated that there were 1.4 million undocumented immigrants residing in Texas. Their report concluded that these individuals contributed $17.7 billion to Texas’ gross state product. If this population were to be removed, Texas’ workforce would decrease by 6.3% and subsequently, the gross state product would reduce by 2.1% (Office of the Comptroller, 2006)21. Removing 1.4 million undocumented immigrants from the state in 2005 (as the report was designed to measure) would result in
18 American Immigration Council, The Political and Economic Power of Immigrants, Latinos, and Asians in the Lone Star State, 2015. 19 Ewing Marion Kauffman Foundation, The Economic Case for Welcoming Immigrant Entrepreneurs, 2015. 20 Austin Chamber of Commerce, Key Industries, 2017. 21 Office of the Comptroller: Texas, Special Report: Undocumented Immigrants in Texas, 2006.
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a net population loss of approximately 784,000 from the baseline by the year 2025 (Office of the Comptroller, 2006)22. Senate Bill 4 may cause a sizeable portion of undocumented immigrants to leave Texas and result in similar losses to the current and future workforce. Through the report’s 20 year modeling of the impact of the loss of undocumented immigrants, it is shown that there would continue to be considerable negative impacts to the state’s supply of talent. The results of their model show that “employment would remain 2 percent below the baseline forecast” for the whole of the 20 years (Office of the Comptroller, 2006)23. Policies should promote employment growth – not hinder it. 28. By inhibiting the in-migration of unauthorized immigrants, Texas would risk not being able to adequately replenish its aging workforce. Aging workers are less productive than their younger counterparts. It is essential for any forward thinking economy to enact policies that ensure aging workers will be replaced. By supporting Senate Bill 4, lawmakers will be hurting the future productivity of Texas workers, pushing them to become less competitive on the national and global stage. 29. Removing undocumented immigrants would have a disproportionate impact to workforces in different regions throughout Texas. In general, these impacts will be largest in border regions as well as the state’s metro areas (Office of the Comptroller, 2006)24. Subsequent workforce declines are projected to be the largest in South Texas – specifically, the Brownsville-McAllen area could see a decline of 22.7%. The smallest decline is projected
22 Ibid. 23 Ibid. 24 Ibid.
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for Southeast Texas – specifically, the Beaumont-Port Arthur area would see a decline of 1.7% (Office of the Comptroller, 2006)25. 30. It is likely that some in the business community will feel increased anxiety, given the disruptions to Texas’ workforce. Uncertainty within the businesses community will cause investment levels to decline, further disrupting supply chains throughout the state and beyond. Businesses depend on the success of other business to purchase their goods and services, which means that disruptions to state and local economies rarely have isolated effects. 31. The Cato Institute has shown that Arizona’s Legal Arizona Workers Act (LAWA) and 2010’s Senate Bill 1070 had measureable impacts on employment in the Agriculture sector and led the study’s authors to conclude that “the fear and uncertainty caused by these laws did damage Arizona’s economy compared to its neighbors.” (Nowrasteh, 2016)26.
SB 4 Will Harm Local Governments 32. Enforcement of Senate Bill 4 creates an unfunded fiscal burden to local governments and
institutions, and puts these entities at risk of incurring legal fees and seeing reduced tax revenues. 33. To enforce Senate Bill 4, municipalities, counties, and institutions of higher education will see increased costs for police, jails, criminal justice, and other agencies (Council, 2011)27. In 2006, The Texas Comptroller estimated that Texas sheriff’s offices in 15 of the 95 counties that are provided State Criminal Alien Assistance Program (SCAAP) funds spent
25 Ibid. 26 Alex Nowrasteh, The Aftermath of Arizona’s Immigration Laws, 2016. 27 American Immigration Council, Checklist for Estimating the Costs of State-Level Immigration Enforcement Laws, 2011.
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approximately $49.1 million in dealing with “undocumented immigrant offenders in 2005.”(Office of the Comptroller, 2006)28. SCAAP funds awarded in 2005 for those same counties accounted for only 14% of the estimated total costs to county Sheriff’s offices for undocumented offenders. In nearly all cases, the amounts of SCAAP funds awarded have either declined or seen little change for 2016 as compared to 2005 (Bureau of Justice Assistance, 2017)29. 34. Senate Bill 4 will exacerbate the current funding gap associated with incarcerating undocumented immigrants. As demonstrated by the current levels of reimbursement, these additional costs will primarily fall on the ledgers of State and local governments. Further, the budget proposal submitted by President Donald Trump seeks to abolish the SCAAP program altogether – this would guarantee that no more reimbursements would be issued to State or local governments for the incarceration of undocumented immigrants. 35. Municipalities, County governments, and institutions of higher education will incur legal costs to defend lawsuits related to enforcement of Senate Bill 4 (Council, 2011)30. 36. Senate Bill 4, given the law’s potential to lead to statewide population decline, will contribute to a decrease in local tax revenues. The Texas Comptroller’s 2006 report estimates that undocumented immigrants contributed $1.0 billion to state tax revenues in 2005. Included in this figure are major consumption taxes and fees, lottery revenue, utilities-related revenue, court costs and fees, and other revenues (Office of the
28 Office of the Comptroller, Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy, 2006. 29 Bureau of Justice Assistance, FY 2016 SCAAP Awards, 2017. 30 American Immigration Council, Checklist for Estimating the Costs of State-Level Immigration Enforcement Laws, 2011.
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Comptroller, 2006)31. Additionally, undocumented immigrants contributed another $582.1 million to school property tax revenues (Office of the Comptroller, 2006)32. In total, this contribution amounts to $1,581.1 billion, or 3.3% of total tax revenues. 37. Conversely, undocumented immigrants cost Texas $1.156.4 billion (Office of the Comptroller, 2006)33. This figure is calculated by estimating the associated costs that undocumented immigrants levy on the state education, healthcare, and incarceration budgets. Altogether, undocumented immigrants provide a $424.7 million surplus to Texas.
SB 4 Will Cause Social Disruption 38. Passage of Senate Bill 4 and enforcement of the law will cause social disruptions for Texas
families and breed mistrust in public institutions, limiting the economic opportunity of Texans. 39. Due to the passage of Senate Bill 4 and the law’s enforcement, Texas families will be split up. A University of Arizona study found that Arizona’s Senate Bill 1070 led to reported increases in the number of students living without parents and associated “stress-related health problems” after the bill was passed (Bacon, 2011)34. 40. The same study also concluded that the passage of Arizona’s Senate Bill 1070 “reinforced and deepened an existing mistrust of institutions in the immigrant community.” (Bacon, 2011)35. Institutional mistrust has the impact of limiting the ability of communities to fully
31 Office of the Comptroller, Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy, 2006. 32 Ibid. 33 Office of the Comptroller, Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy, 2006. 34 Bacon Immigration Law and Policy Program and Southwest Institute for Research on Women, Left Back: The Impact of SB 1070 on Arizona’s Youth, 2011. 35 Ibid.
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participate in the economy, since public and professional institutions regulate much of our ability to start businesses, gain skills, and find capital. 41. Senate Bill 4 will create mistrust between immigrant communities and local law enforcement agents by forcing local agents to enforce federal immigration laws, which will hinder undocumented immigrant’s willingness to report crimes. Business and talent attraction efforts will be severely hindered in communities and neighborhoods which suffer from excessive crime rates. Within the economic development community, addressing crime is an essential precursor to any development efforts. 42. These impacts to Texas families will result in greater financial and social instability, thereby reducing the economic opportunity of individual Texans and their communities. Reducing the economic opportunity of some has the potential to reduce the overall economic productivity and growth potential for Texas, as more and more in the economic development community are finding that the abilities and supply of their workforce is becoming one of the most important deciding factors to attracting employers.
Immigrants are Less Likely to Commit Crimes 43. The vast majority of the relevant socioeconomic research reaches two conclusions related
to immigrants and crime. First, immigrants are much less likely to commit crimes than native born citizens. Second, the presence of large numbers of immigrants seem to lower crime rates (National Academy of Sciences, 2016)36. 44. Using 2010 Census data, a study by the American Immigration Council found that “Incarceration rates among the young, less-educated Mexican, Salvadoran, and
36 National Academy of Sciences, The Economic and Fiscal Consequences of Immigration, 2016.
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Guatemalan men who make up the bulk of the unauthorized population are significantly lower than the incarceration rate among native-born, young men without a high-school diploma. In 2010, less-educated native-born men aged 18-39 had an incarceration rate of 10.7% - more than triple the 2.8% among foreign-born Mexican men, and five times greater than the 1.7% among foreign-born Salvadoran and Guatemalan men” (Ewing et al., 2015)37. 45. Additionally, the National Academy of Sciences explains that, “there have been numerous contemporary studies estimating the relationship between immigration and urban violent crime in the United States”38. Their review of the current literature, finds the following studies which demonstrate an inverse relationship between immigration and crime rates: Butcher and Piehl, 1998; Martinez, 2000; Reid et al., 2005; Piehl, 2007; Ousey and Kubrin, 2009; Stowell, 2010; Wadsworth, 2010; Bersani, 2010; Leerkes and Bernasco, 2010.
SB 4 Will Likely Negatively Impact Texas’ Economy 46. In summary, the passage of Senate Bill 4 and the enforcement of the law has the ability to
negatively impact key sectors of Texas’ economy in both the near and longer term. 47. The law creates a negative perception about the State’s value of immigrants, which has led
and will continue to lead to boycotts. Foreign nationals, who bring investment and talent to our state, will also become more likely to boycott or merely not consider Texas because of these negative perceptions. This is particularly significant since immigrants are more likely to be entrepreneurs than native-born Americans. This disruption, combined with the loss of immigrant workers, will have an effect on the sustainability of businesses in
37 Ewing et al., The Criminalization of Immigration in the United States, 2015. 38 National Academy of Sciences, The Economic and Fiscal Consequences of Immigration, 2016.
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industries that rely on immigrant workers and to the other businesses within their supply chain. 48. Senate Bill 4 will lead to reduced revenues for local governments in Texas, along with increases in the funds needed for the law’s enforcement. Local governments and public institutions will also see decreased trust by residents, specifically in immigrant communities. Texas families will be separated and young Texans will find it harder to gain the skills they need to find employment, become financially stable, or eventually start their own business. 49. Texas’ economic outlook sees a greater uncertainty because of Senate Bill 4. It is always the case in economic development that when you limit the ability of those among us who are the most innovative and entrepreneurial, you see a decrease in the economic opportunity for all. The economic interests of Texans are simply not represented by Senate Bill 4. Pursuant to 28 U.S.C. §1746, I declare, certify, verify, and state, on this day, under penalty of perjury, that the foregoing is true and correct. Executed June 23, 2017.
__________________________________ Angelos G. Angelou
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EXHIBIT 1

Case 5:17-cv-00404-OLG Document 97-1 Filed 06/23/17 Page 17 of 17

ANGELOS ANGELOU
Founder & Principal Executive Officer Chief Strategist

Education:

Ph.D. coursework in Economics, Southern Methodist University, Dallas, Texas M.A. Economics and Management, St. Mary’s University, San Antonio, Texas B.A. Economics and Political Science, University of Texas, San Antonio, Texas

Professional Memberships:

International Economic Development Council, Board Member World Congress on Information Technology, Board Member Site Selectors Guild, Founding Member

Biography:

Angelos Angelou is the Founder and Principal Executive Officer of AngelouEconomics, an economic development and site selection consultancy based in Austin, Texas, with an office in Dubai. A highly visible leader in the field of economic development for over 30 years, Angelos is widely regarded as an expert on technology based economic development, public policy, investment attraction, and marketing. National and international media alike regularly seek his comments and insights.

In its 18 year history, AngelouEconomics has become one of the leading independent economic development consulting firms in the United States. This firm has developed economic development strategies for more than 400 regions in the United States and abroad. In its site selection practice, AngelouEconomics has sited over $18 billion worth of capital investment projects from high tech corporate clients around the world. Major corporate clients include Fortune 500 companies such as HP, Dell, GE, Intel, Oracle, Sun Micro Systems, AMD, The Cleveland Clinic, SEMATECH, CITGO, and ConocoPhillips. In addition, AE has been engaged by many of the world’s premier renewable energy companies involved in solar panel and wind turbine manufacturing, biomass, and solar farm development. AngelouEconomics has particular expertise in working with corporate clients involved in data centers, IT, energy sector, electronics, semiconductors, renewable energy, and life sciences.

Prior to forming AngelouEconomics, Angelos was Vice President of Economic Development at the Greater Austin Chamber of Commerce where he served for nearly 12 years. During his tenure, the chamber attracted over 800 new companies employing 70,000 people and representing a capital investment of over $20 billion. He is widely regarded as the chief architect in the establishment of Austin as another Silicon Valley.

1
Confidential and Copyright Protected

 
 Case 5:17-cv-00404-OLG Document 82 Filed 06/22/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ MOTION TO DISMISS OR TRANSFER TRAVIS
COUNTY’S COMPLAINT IN INTERVENTION (ECF NO. 78)

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Case 5:17-cv-00404-OLG Document 82 Filed 06/22/17 Page 2 of 4
On June 20, 2017, the Court granted the Travis County’s Motion to Intervene. ECF No. 68. Texas now moves, pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, for this Court to dismiss the City’s Complaint in Intervention (ECF No. 78) or transfer it for consolidation with a related, first-filed matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS, in which Travis County is a named defendant.1 Travis County is located within the Austin Division, has no connection to the San Antonio Division, and alleges that the actions that form the basis of its claims occurred within the confines of the Austin Division. See ECF No. 37 ¶¶ 20–44. 28 U.S.C. § 124(d)(1). Venue is thus improper in the San Antonio Division.
In further support of this Motion, Texas incorporates by reference the arguments and authorities raised in its Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases, ECF No. 32-1, and requests that Travis County’s claims be dismissed, or alternatively, transferred to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.2
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is aware of the Court’s order but files this Motion to ensure that there is a responsive pleading to the County’s operative complaint on file. Moreover, Texas asserts that this case should be dismissed or transferred regardless of the outcome of the Austin Division case.
2 Courts within the Fifth Circuit have routinely accepted and addressed the merits of arguments that have been incorporated by reference to earlier-filed motions. See, e.g., Chaverri v. Dole Food Co., Inc., 2012 WL 2087409, at *3 (E.D. La. June 8, 2012) (noting that it was sensible for the defendant to incorporate by reference arguments raised in earlier motions to dismiss because the defendant raised many of the same arguments in those earlier motions); Phoenix Licensing L.L.C. v. CenturyLink Inc., 2015 WL 5786582, at *1 (E.D. Tex. Sept. 30, 2015). Indeed, in Travis County’s reply brief in support of its motion for intervene, the County incorporates by reference its earlier briefing in this case and its briefing in the Austin litigation. See ECF No. 47 at 1–2.
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Respectfully submitted this the 22nd day of June, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
3

Case 5:17-cv-00404-OLG Document 82 Filed 06/22/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 22nd day of June, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
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 Case 5:17-cv-00404-OLG Document 125 Filed 06/27/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas et al., Plaintiffs, v.
State of Texas, et al., Defendants.

§ § § § § Case No. 5:17-cv-404-OG § § § § §

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION LEAGUE IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 I. INTEREST OF AMICUS CURIAE: ADL’S PARTNERSHIP WITH LAW
ENFORCEMENT TO FOSTER THE COMMUNITY COOPERATION, TOLERANCE, AND TRUST THAT SB4 WOULD DESTROY ............................................................... 1 ARGUMENT .................................................................................................................................. 3 I. CONGRESS GIVES LOCAL LAW ENFORCEMENT DISCRETION TO BALANCE IMMIGRATION ENFORCEMENT WITH OTHER LAW ENFORCEMENT IMPERATIVES. ................................................................................................................. 4 II. PLAINTIFFS’ POLICIES BALANCE IMMIGRATION ENFORCEMENT WITH THE NEED TO BUILD TRUST, FOSTER COMMUNITY POLICING, AND ENHANCE PUBLIC SAFETY .............................................................................................................. 5 III. SB4 OVERRIDES PLAINTIFFS’ CONGRESSIONALLY-GRANTED DISCRETION, IRREPARABLY DESTROYS TRUST, UNDERMINES COMMUNITY POLICING, AND THREATENS PUBLIC SAFETY. ........................................................................... 5 A. SB4 Turns Local Law Enforcement Officers into De Facto Immigration Agents....... 5 B. Turning Law Enforcement Officers Into De Facto Immigration Agents Destroys Law Enforcement-Community Trust and Cooperation, Harming Public Safety ........................ 7 C. Texas Local Law Enforcement’s Reputation for Trust and Cooperation With Immigrant Communities Will Be Irreparably Injured Absent an Injunction. ..................... 9 CONCLUSION............................................................................................................................. 10
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TABLE OF AUTHORITITIES
Cases Arizona v. United States,
567 U.S. 387 (2012 ..................................................................................................... 4, 6, 7 Galarza v. Szalczyk,
745 F.3d 634 (3d Cir. 2014)............................................................................................... 8 Mendia v. Garcia,
768 F.3d 1009 (9th Cir. 2014) ............................................................................................ 8 Winter v. Nat. Res. Def. Council, Inc.,
129 S. Ct. 365 (2008) .......................................................................................................... 4 Statutes 8 U.S.C. § 1357............................................................................................................................... 4 TEXAS GOV’T CODE §§ 752.051...................................................................................................... 6 TEXAS GOV’T CODE §§ 752.053.................................................................................................. 6, 7 Other Authorities ADL, “Protecting All People,”
https://www.adl.org/news/article/protecting-all-people (July 14, 2016) ............................ 2 Brad Tuttle, Warren Buffett’s Boring, Brilliant Wisdom, TIME (Mar. 1, 2010),
http://business.time.com/2010/03/01/warren-buffetts-boring-brilliant-wisdom................ 9 Brooke A. Lewis, HPD Chief Announces Decrease in Hispanics Reporting Rape and Violent
Crimes Compared to Last Year, HOUSTON CHRONICLE (Apr. 6, 2017), http://www.chron.com/news/houstontexas/houston/article/HPD-chief-announces-decrease-in-Hispanics-11053829.php...... 3, 9 David Pughes, Art Acevedo, et al., Texas police chiefs: Do not burden local officers with federal immigration enforcement, DALLAS MORNING NEWS (Apr. 28, 2017)........................................................................... 9 Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-anamerican-butwhat-if-you-had-to-prove-it-or-be-deported#foot1 ....................................... 8
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Stefano Camino et al., Silence of the Innocents: Illegal Immigrants’ Underreporting of Crime and their Victimization, IZA (Oct. 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2861091.......................................... 8
Tom Jackson, Police chiefs’ immigration task force outlines opposition to Trump policy, WASHINGTON POST (Mar. 1, 2017), https://www.washingtonpost.com/news/truecrime/wp/2017/03/01/police-chiefs-immigration-task-force-outlines-opposition-to-trumppolicy/?utm_term=.4a1b2456fec8 .................................................................................... 10
Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/..................................................... 8
U.S. Conf. of Mayors & Major Cities Chiefs Ass’n, Joint Statement Regarding President Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States, https://www.majorcitieschiefs.com/pdf/news/mcca_mayors_pr_on_eo_12517.pdf ....... 10
U.S. Dept. of Justice, Community Oriented Policing Services, https://cops.usdoj.gov/about ............................................................................................... 5
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INTRODUCTION The Anti-Defamation League (“ADL”) files this brief as Amicus Curiae in support of the Plaintiffs’ Motions for Preliminary Injunction because allowing SB4 to come into effect would cause irreparable injury to cooperation and trust between law enforcement officials and immigrant and minority communities. SB4 would immediately and irreparably undermine that trust, which is crucial to overall public safety and central to the success of community policing efforts. If SB4 commandeers Plaintiffs’ local law enforcement agencies to act as immigration agents for even one day, it would destroy relationships of trust that the agencies, working with ADL and other civil rights and community groups, have spent years building. No injunction or any other remedy at law or equity can rebuild that trust once it is broken. Congress has given local law enforcement a strictly voluntary role in immigration enforcement. This decision by Congress was informed by the law enforcement imperative to maintain trust and cooperation between communities and local law enforcement agencies. SB4 is incompatible with this Congressional balance. For this and other reasons set forth in the briefs of Plaintiffs and amici, SB4 is unconstitutional and Plaintiffs are likely to prevail in this lawsuit. Because Plaintiffs are likely to prevail on the merits and the harm to Plaintiffs of denying the injunction would be grave and irreparable, the Court should preliminarily enjoin SB4 so that it can deliberately assess the law’s legality without disrupting the status quo ante. I. Interest of Amicus Curiae: ADL’s Partnership With Law Enforcement to Foster the Community Cooperation, Tolerance, and Trust That SB4 Would Destroy Founded in 1913 “to stop the defamation of the Jewish people, and to secure justice and fair treatment to all,” ADL’s mission is to create an ever-more just and tolerant society recognizing the equal rights of all groups. This mission has long included training law enforcement professionals on hate crimes, countering violent extremism, and building trust with the people they
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serve. ADL’s “Law Enforcement and Society” training program, developed with the United States Holocaust Memorial Museum, uses the history of the Holocaust as a springboard for examining law enforcement professionals’ role in our democracy and their relationship to diverse communities they serve. ADL trains more than 14,000 law enforcement professionals every year, with more than 130,000 law enforcement professionals having received Law Enforcement and Society training from ADL since 1999. As a result of these efforts, ADL is now the leading nongovernmental law enforcement training organization in the United States.
ADL’s regional offices in Austin, Dallas, and Houston are deeply engaged with local law enforcement agencies in those Plaintiff cities and throughout the State of Texas. ADL is in regular contact with local police departments throughout Texas regarding prevention of hate crimes, countering violent extremism, and developing community policing strategies built on tolerance, non-discrimination, and trust. For example, ADL offers the above-referenced Law Enforcement and Society training to the Houston, Dallas, and Austin police departments. ADL’s website explains that the “program traces the changing role of police under the Nazis, from neutral professionals to instruments of the ‘Final Solution.’ The example of the German police hits home. “Without clear values and commitment to what is just,” said one participant, “you could lose your path and become a person you never intended to be.”1
Fostering cooperation and trust between law enforcement and all segments of the population is at the core of ADL’s law enforcement training. As explained on ADL’s website:
The unique role of law enforcement officials in any community makes cross-cultural understanding imperative. . . . If members of the community feel that their own concerns are not understood, their confidence in law enforcement personnel to meet these needs may be severely diminished. Unfortunately, this can adversely impact cooperation for reporting crimes and providing information vital to solving crimes.
1 See ADL, “Protecting All People,” https://www.adl.org/news/article/protecting-all-people (July 14, 2016).
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ARGUMENT Plaintiff Texas cities and law enforcement leaders have exercised the discretion afforded to local law enforcement by Congress to adopt policies that balance enforcement of immigration law with other law enforcement interests including maintaining cooperation and trust with the communities they serve. In addition to conserving limited resources, these policies are designed to assist local law enforcement by encouraging community members to report crimes to local police and cooperate with investigations without fear that their immigration or citizenship status will subject them to legal action themselves. The policies thus directly serve the fundamental mission of local law enforcement—the prevention of crime and promotion of safety in their communities. There is a demonstrable risk that, if SB4 becomes effective while this case is still pending, the relationship of trust and cooperation between Texans and their local law enforcement agencies will be irreparably destroyed. Because of SB4, both undocumented immigrants and immigrants with lawful status justifiably fear that the police will report their immigration information—or that of a family member or friend—to Immigration and Customs Enforcement (“ICE”), resulting in potential detention and/or deportation.2 This fear is already preventing the reporting of crimes.3 In the experience of ADL and numerous Texas law enforcement agencies that have either spoken out or joined this case, commandeering local law enforcement agents and making them de facto immigration enforcement agents would make it impossible for Texans from mixed-status families or communities with significant numbers of immigrants to interact with police in an atmosphere of trust without fear that their families, their neighbors, or they themselves will be deported. The cooperative relationships that Plaintiffs have built over years with the people they
2 See, e.g. Dkt No. 57-1 and exhibits thereto. 3 See, e.g. Brooke Lewis, HPD Chief Announces Decrease in Hispanics Reporting Rape and Violent Crimes Compared to Last Year, HOUS. CHRON. (Apr. 6, 2017), http://www.chron.com/news/houston-texas/houston/article/HPD-chiefannounces-decrease-in-Hispanics-11053829.php (reporting decline in rape and violent crime reported by Hispanics).
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serve, often with training and assistance from ADL, would be destroyed overnight. Accordingly, ADL supports Plaintiffs’ Motions for Preliminary Injunction. (Dkt. Nos. 24, 55, 56, 57). Only an injunction can prevent immediate and irreparable harm, including the undermining of trust and cooperation between immigrant communities and law enforcement that will otherwise ensue if SB4 becomes effective. See Winter v. Nat. Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). I. Congress Gives Local Law Enforcement Discretion to Balance Immigration
Enforcement With Other Law Enforcement Imperatives. The Constitution grants primary power over immigration and the status of aliens to the Federal Government. Arizona v. United States, 567 U.S. 387, 394 (2012). “State laws are preempted when they conflict” with Federal immigration law, including where they “conflict with the method of enforcement” or “where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 399, 406. Congress has carefully balanced immigration enforcement with local law enforcement’s overarching mission to enhance public safety. Recognizing that local governments and police departments are best equipped to understand the needs of their communities, Congress repeatedly made local law enforcement involvement in immigration enforcement activities voluntary rather than mandatory, so as to prevent forcing local entities to sacrifice their core public safety mission in the name of immigration enforcement. See e.g. 8 U.S.C. § 1357 (g)(9) & (10) (making the 287(g) program purely voluntary for local entities and specifying “[n]othing in this subsection shall be construed to require” state or local participation); id. § 1357(d) (making detainers voluntary); id. 1101(1)(15)(T), (U) (empowering local officers to protect victims and witnesses from deportation). SB4 does not account for any of the local law enforcement interests that Congress included in its scheme. “This is not the system Congress created.” Arizona, 567 U.S. at 408.
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II. Plaintiffs’ Policies Balance Immigration Enforcement With the Need to Build Trust, Foster Community Policing, and Enhance Public Safety Plaintiff cities and local law enforcement agencies adopted policies “to foster community
trust in policing.” Dkt. No. 24-1 at 3. In the words of Plaintiff Mayor Reyes of El Cenizo, “[i]f the members of the community fear that my officers are acting as immigration agents, they will be more hesitant to report crimes and to serve as witnesses, and public safety will suffer as a result.” Dkt. No. 24-8 at ¶ 21. Cooperation and open communication are cornerstones of community policing, which is based on forging partnerships between law enforcement and community members and groups. The U.S. Department of Justice affirms the foundational importance of this trust: “Community policing begins with a commitment to building trust and mutual respect between police and communities. It is critical to public safety, ensuring that all stakeholders work together to address our nation's crime challenges.”4
Developing this trust requires an environment in which both victims and witnesses are willing to come forward and actively participate in criminal investigations. Plaintiffs’ policies are designed to do just that, i.e., to encourage community members—regardless of their or their families’ immigration or citizenship status—to contact and cooperate with local police without fear of deportation or other immigration consequences. See, e.g. Dkt. No. 24-8 at ¶ 19-22. Public safety in Plaintiffs’ cities (and elsewhere) depends on all community members having this trust. III. SB4 Overrides Plaintiffs’ Congressionally-Granted Discretion, Irreparably Destroys Trust, Undermines Community Policing, and Threatens Public Safety.
A. SB4 Turns Local Law Enforcement Officers into De Facto Immigration Agents Under SB4, local entities may not “adopt, enforce, or endorse a policy,” including an “informal policy,” or engage in any “practice” that “materially limits the enforcement of
4 U.S. Dept. of Justice, Community Oriented Policing Services, https://cops.usdoj.gov/about (visited June 24, 2017).
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immigration law” without facing draconian consequences including jail and removal from office. TEXAS GOV’T CODE §§ 752.053(a)(1), 752.051(6). SB4 specifically prohibits Plaintiffs from taking any action to prevent local police officers from conducting immigration inquiries every time they detain a member of the public, or (perhaps worse) during selective detentions in which the member of the public “seems” like a possible immigrant to the officer. Id. at § 752.053(b)(1).
SB4 thus deprives local law enforcement agencies of the discretion afforded by Congress. If, under SB4, they apply immigration law in any way that may be interpreted by the Attorney General of Texas as “limit[ing] the enforcement of immigration law,” they risk fines, jail, and removal from office. To comply with SB4, local law enforcement agencies would have to become de facto immigration enforcement agencies, enforcing immigration law with no “material[] limit.” At minimum, they would be unable to set policies restricting officers from conducting immigration inquiries with every detention or arrest. Plaintiff entities would be powerless to prevent an officer who sought to conduct an inquiry even “without any input from the Federal Government about whether” the inquiry “is warranted in a particular case.” Arizona, 567 U.S. at 408.
By coercing local law enforcement agencies to enforce federal immigration law, SB4 drives a wedge between police officers and the residents they protect. Even a policy designed merely to ensure Equal Protection of the law on the basis of race, religion, or national origin during such detentions and inquiries would risk being deemed a “material limit” on immigration enforcement subjecting Plaintiffs to massive fines, jail, or removal from office.
SB4 commandeers and conscripts local law enforcement agents to become de facto immigration enforcement agents, but without the training and legal limits placed on Federal immigration agents. Local police are not trained or equipped to enforce Federal Immigration Law.5
5 See, e.g. Dkt. No. 24-5 at ¶ 20; Dkt. No. 24-6 at ¶ 14.
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Unlike federal immigration enforcement agents who are trained in the “significant complexities involved in enforcing federal immigration law,” and its careful balance of enforcement with other priorities and Constitutional rights, SB4 instructs local law enforcement officers and agencies to apply a one-way ratchet toward “materially [un]limit[ed]” immigration enforcement. Arizona, 567 U.S. at 409; TEXAS GOV’T CODE §§ 752.053(a)(1). Plaintiffs will be deprived of discretion to take any action or pursue any interest that may in any way inhibit to-the-hilt immigration enforcement.
Thus, if SB4 takes effect, local law enforcement officials will often act as, and will be reasonably perceived in the community as, de facto immigration enforcement officials. Indeed, they will be especially menacing immigration enforcement officials, unconstrained by training in the nuanced body of law that authorized Federal immigration enforcement officials apply. For immigrants, members of ethnic groups identified with immigration, and members of communities with large numbers of immigrants, every interaction with local law enforcement will be fraught with the risk of unwanted, and likely unwarranted, immigration enforcement actions. Little could be more destructive to the trust and cooperation necessary to effective community policing.
B. Turning Law Enforcement Officers Into De Facto Immigration Agents Destroys Law Enforcement-Community Trust and Cooperation, Harming Public Safety
Under SB4, immigrants and members of communities with large immigrant populations will reasonably fear that interaction with local police will lead to unwanted interaction with ICE. As a result, absent an injunction, individuals who are undocumented, along with their families and neighbors, will be unwilling to report crimes and to assist in police investigations out of fear that contact with local police will lead to deportation. See Dkt. No. 24-8 at ¶ 19-22 (explaining that SB4 “will create an environment of fear and members of our community will no longer feel comfortable seeking city services or participating in civic life.”). Nor will these effects be limited to those that are undocumented: U.S. citizens and lawful permanent residents who live among
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immigrant communities and/or belong to ethnic groups that include many immigrants similarly will hesitate to report crimes or assist in the investigation of crimes absent an injunction. Instead, they will fear being mistakenly treated as undocumented and/or the consequences of drawing additional law enforcement attention to their friends and neighbors.6
This effect is not hypothetical. Research has confirmed that fear of retribution following interaction with law enforcement has serious practical implications for community safety. Empirical data and analysis show that undocumented immigrants are significantly less likely to report a crime committed against them.7 One study completed earlier this year compared counties with a “sanctuary” policy—counties that do not assist federal immigration enforcement officials by holding people in custody beyond their release date—with demographically similar nonsanctuary counties. The study concluded that “[t]here are, on average, 35.5 fewer crimes committed per 10,000 people in sanctuary counties compared to non-sanctuary counties.”8
Diminished cooperation and reporting of crime are already evident in Texas in light of the debate over SB4, increased ICE activity, and the now-enjoined federal Executive Order that similarly aimed to require local police to enforce immigration law. For example, Houston Police Chief Art Acevedo announced in April that the number of Hispanics reporting rape had decreased 42.8 percent in the first quarter of 2017 compared to the same time frame in 2016, with the
6 Fears of being treated as undocumented are well-founded. See, e.g., Mendia v. Garcia, 768 F.3d 1009, 1010 (9th Cir. 2014) (U.S. citizen spent two years in pre-trial detention as a result of the detainer); Galarza v. Szalczyk, 745 F.3d 634, 636-38 (3d Cir. 2014) (U.S. citizen held in jail for three days pursuant to erroneous detainer); Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-hadto-prove-it-or-be-deported#foot1 (Data obtained through a Freedom of Information Act Request showed 693 detainers that were lifted or resolved with the outcome “United States Citizen Interviewed.”). 7 See, e.g. Stefano Comino et al., Silence of the Innocents: Illegal Immigrants’ Underreporting of Crime and their Victimization, IZA (Oct. 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2861091. 8 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/ reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy.
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percentage reporting other violent crimes down 13 percent.9 Affidavit evidence in this case likewise demonstrates that members of many Texas communities will be less likely to interact with their local police if those interactions become more likely to result in unwanted interactions with ICE.10 SB4’s requirement that local law enforcement effectively act as immigration agents will compound this reluctance and distrust. Crime will increase—not decrease—because the necessary trust and cooperation between the police and local communities will be reduced.
C. Texas Local Law Enforcement’s Reputation for Trust and Cooperation With Immigrant Communities Will Be Irreparably Injured Absent an Injunction.
Warren Buffett famously observed that “[i]t takes 20 years to build a reputation and five minutes to ruin it.”11 A community policing strategy built on local law enforcement’s reputation for tolerance and trustworthiness is similarly fragile. It is imperative that Plaintiff cities and law enforcement agencies not be compelled to sacrifice that reputation.
Texas law enforcement leaders agree with Plaintiffs and ADL that local law enforcement’s reputation for cooperation and trustworthiness with immigrant communities risks being permanently tarnished by SB4. This is why the Police Chiefs of six of Texas’s largest police departments and the Executive Director of the Texas Police Chiefs Association co-signed an opinion piece in the State’s largest daily newspaper prior to passage of SB4, urging the Legislature to reject the measure.12 The police chiefs warned that SB4 would open a “divide between the local police and immigrant groups [which] will result in increased crime against immigrants and in the broader community, create a class of silent victims, and eliminate the potential for assistance from
9 See Lewis, supra footnote 2. 10 See, e.g. Dkt No. 57-1 and exhibits thereto. 11 Brad Tuttle, Warren Buffett’s Boring, Brilliant Wisdom, TIME (Mar. 1, 2010), http://business.time.com/2010/03/01/warren-buffetts-boring-brilliant-wisdom. 12 David Pughes, Art Acevedo, et al., Texas police chiefs: Do not burden local officers with federal immigration enforcement, DALLAS MORNING NEWS (Apr. 28, 2017).
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immigrants in solving crimes or preventing crime.”13 Plaintiff Maverick County Sherriff Schmerber confirms that “SB4 will [] harm community policing efforts by my office” because “people will no longer call to report crimes or to seek help for fear of being questioned or their family members being questioned about their immigration status.” Dkt. 24-5 at ¶¶ 21-22.
These conclusions are echoed by the broader law enforcement community. Many national law enforcement and immigration policy organizations have expressed grave concern that deputizing local law enforcement officers to implement immigration law undermines immigrant communities’ trust in and cooperation with local law enforcement.14 The Major Cities Chiefs Association ably articulated the consensus among law enforcement professionals:
Cities that aim to build trusting and supportive relations with immigrant communities should not be punished because this is essential to reducing crime and helping victims . . . Local police departments work hard to build and preserve trust with all of the communities they serve, including immigrant communities. Immigrants residing in our cities must be able to trust the police and all of city government.15 As the nation’s largest non-governmental trainer of law enforcement officers with an emphasis on preventing discrimination and hate crimes, ADL shares these concerns. Absent a preliminary injunction, ADL’s and Plaintiffs’ hard work to establish trust and cooperation with diverse communities and improve community policing will be irreparably injured.
CONCLUSION For these reasons, and for the reasons stated in the Plaintiffs’ briefs, SB4 will inflict irreparable harm if not enjoined, and the public interest dictates entry of a preliminary injunction.
13 Id. 14 See, e.g., Tom Jackson, Police chiefs’ immigration task force outlines opposition to Trump policy, WASHINGTON POST (Mar. 1, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/03/01/police-chiefs-immigrationtask-force-outlines-opposition-to-trump-policy/?utm_term=.4a1b2456fec8. 15 U.S. Conf. of Mayors & Major Cities Chiefs Ass’n,, “U.S. Mayors, Police Chiefs Concerned with Sanctuary Cities Executive Order”, https://www.majorcitieschiefs.com/pdf/news/mcca_mayors_pr_on_eo_12517.pdf (Jan. 25, 2017)
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June 26, 2017

Respectfully submitted,
/s/ Jay D. Ellwanger__________ Jay D. Ellwanger Texas State Bar No. 24036522 jellwanger@dpelaw.com Holt Major Lackey (Pro Hac Vice Pending) Texas State Bar No. 24047763 hlackey@dpelaw.com DiNovo Price Ellwanger LLP 7000 North MoPac Expressway, Suite 350 Austin, Texas 78731 Telephone: (512) 539-2626 Facsimile: (512) 539-2627
Steven M. Freeman Lauren A. Jones Rachel G. Bresner Anti-Defamation League 605 Third Avenue, 10th Floor New York, NY 10158 (212) 885-7700

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Case 5:17-cv-00404-OLG Document 125 Filed 06/27/17 Page 16 of 16 CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of June 2017, all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court’s CM/ECF system.
/s/ Jay D. Ellwanger__________ Jay D. Ellwanger
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 Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, etal. §

Plaintft,

§

§

V.

§

§

THE CITY OF HOUSTON, TEXAS §

Intervenor

§

§

V.

§

§

THE STATE OF TEXAS, et. al.

§

Defendants.

§

CIVIL Action No. 5:17-C V-00404-OLG (Lead Case)
CIVIL Action No. 5:17-CV-00459-OLG (Consolidated Case)
CIVIL Action No. 5:17-CV-00489-OLG (Consolidated Case)

CITY OF HOUSTON'S COMPLAINT IN INTERVENTION The CITY OF HOUSTON ("Houston") files this its Complaint in Intervention against the State of Texas ("Texas"), pursuant to Fed. R. Civ. P. 24(b). In support, Houston states as follows:
INTRODUCTION 1. Because human progress is neither automatic nor inevitable, Houston is compelled to join these consolidated lawsuits to ensure that this court finds that Texas' new "show me your papers" law, Senate Bill 4 ("SB4"), unconstitutionally restricts the freedom and diminishes the civil rights and dignity of Latinos who live in and visit Houston, mandates that local police officers act as United States Immigration and Customs Enforcement ("ICE") officers and empowers them to engage in unconstitutional detentions, and abrogates the rights of Texas voters and their elected and appointed officials by penalizing those officials and even removing them from office

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when they merely express views or advocate for policies at odds with those SB4 embodies. 2. SB4's many constitutional transgressions do not advance any defensible, let alone compelling, state interest. Instead, it targets Latinos. While Governor Abbott, like SB4's other proponents in the Legislature, has claimed that the law is intended to target only undocumented immigrants who cross the Texas/Mexico border and that these individuals come "[f]rom around the entire globe," the Department of Homeland Security ("DHS") reports that, between 2014 and 2016, 95% of all persons apprehended by DHS came from Mexico, Guatemala, Honduras, or El Salvador. 3. SB4 also fails to enhance public safety. Instead, it puts the public at greater risk. The law actively impedes the effective utilization of precious and limited public safety resources that would otherwise be used to combat serious crimes. This has been the consistent and persistent message of law enforcement leaders across the State who opposed SB4 from the start. Without any legitimate reason, the State of Texas has put all Texans in harm's way. 4. Although 5B4 will not reduce crime, it will increase human misery, the likelihood of an economic boycott of the State, and barriers to investment, tourism, and economic growth without any corresponding benefit to the State. By turning local police into a rump federal immigration force, and weighing down any engagement that undocumented immigrants have with city government with the potential for catastrophic detention and deportation, SB4 will also irrevocably damage the community bonds Houston has long forged with all who arrive there humbly but with
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a strong work ethic, Houston-sized dreams, and the vision, heart, and audacity to make them a reality. This pact is Houston's soul and essence. SB4 would rip it apart. 5. It did not have to be this way. Texas could easily have encouraged cities, through grants, cost-sharing, or other enticements, to enter into voluntary agreements with the federal government to enforce the federal immigration laws with a well-trained, tightlymanaged group of local law enforcement officers pursuant to existing law. Instead of choosing this narrowly-tailored option, however, the State chose to coerce its cities to force their local police officers to serve as ICE officers and to empower them to target Latinos. 6. Although SB4 does not become effective until September 1, 2017, Houston seeks to intervene now, before the law can do irreparable harm, to obtain declaratory and injunctive relief from 5B4 under the Supremacy Clause, the First and Fourth Amendments, and Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, the Delegation Doctrine, and the Due Course of Law, Free Speech, Search and Seizure, and Home-Rule provisions of the Texas Constitution.
INTER VENOR
7. Intervenor Houston is a Texas constitutional home-rule city, governed by a city charter. As demonstrated below, Houston and Houstonians will suffer injury-in-fact from the implementation and enforcement of SB4.
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8. Houston is the most diverse city in the nation.' Immigrant Houstonians, therefore, play a critical role in driving Houston's economy, enriching its culture, and feeding its soul. The City of Houston's website reports that ninety languages are spoken in Houston and it is home to more than 92 consular offices. Houston is also a major destination for resettlement of refugees from all over the world.2 Nearly 1.4 million Houstonians, more than 25% of its population, are foreign born.3 Forty percent of Houstonians under the
age of 18more than 650,000 childrenhave at least one foreign-born parent. In this
regard, more unaccompanied immigrant children have been reunified with family members in Houston than any other city, due to its proximity to the South Texas border region and substantial Central American immigrant communities.4 From 400,000 to 575,000 of all Houston's immigrants are undocumented.5
1 See, e.g., Michael 0, Emerson, etal., Houston Region Grows More Racially! Ethnically Diverse with Small
Dedines in Segregation, A Joint Report Analyzing Census Data from 1990, 2000, and 2010, at 5, Kinder Institute for Urban Research and Hobby Center for the Study of Texas (2012), available at
http / /kinder.rice.edu/uploadedFiles/Urban Research Center.Media/Houston%2oRegion%2OGro
ws%2OMore%2OEthically%2ODiverse%202- 13 .pdf. 2 Corrie MacLaggan, Share ofForeign-Born Texans Growing, Texas Tribune (Jan. 2, 2014).
Id.; Randy Capps, et al., A Profile ofImmigrants in Houston, the Nation's Most Diverse Metropolitan Area, Migration Policy Institute (March 2015). "U.S. Office of Refugee Resettlement (ORR), Unaccompanied Children Released to Sponsors by Country, accessed Jan. 29, 2014, www.acf.hhs. gov/programs/orr/unaccompanied-children-released-tosponsors-by-country, quoted in Capps, supra, note 3, at 5-6, n. 10.
Compare Capps, supra,note 3, at 2 with Pew Research Center, Estimates of unauthorized immigrant population, by metro area, 2014 (Feb. 13, 2017).

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 5 of 53
9. In particular, Houston's vibrant Latino population numbers 1.73 million, the second largest in the United States.6 Nearly 37 percent of Houstonians are Latino and 41 percent of those are foreign-born. Id. 10. Houston has approximately 20,000 city employees. Many of them are police officers. The Houston Police Department ("HPD") is headed by a chief of police appointed by the mayor and confirmed by the city council. The current Chief of Police is Hubert "Art" Acevedo. His sworn declaration is attached and incorporated herein as Exhibit 1. His position is aided by two executive assistant chiefs, ten assistant chiefs, forty-four captains, approximately two hundred twenty lieutenants, and nine hundred sergeants. HPD divides the city into 13 patrol divisions and employs 5,200 sworn law enforcement officers and 1,200 civilian support personnel to protect the city. On average, HPD annually responds to 1.2 million calls for service, makes 400,000 traffic stops and actively investigates 150,000 crimes. Id. at ¶ 5. 11. In this connection, Houston runs two jails and a lock-up facility for those who have been arrested by HPD and other local law enforcement entities. They are managed by a classified captain and other classified supervisors. Although most detainees are released within 48 hours, half of all prisoners are charged with county or district court charges and sent to the Harris County jail within the first 24 hours. 12. Houston has standing to challenge the constitutionality of SB4 because Houston is charged with implementing a statute that is unconstitutional. See, e.g., Nootsie, Ltd. v.
Mitelman, Harris County has the 2d Largest Hispanic Population in U.S., Houston Business Journal (Sept. 4, 2013).
5

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 6 of 53
Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). In addition, Houston also has representative standing to challenge SB4 on behalf of its elected and appointed officials, law enforcement officers, and other employees, residents, and visitors who will be directly affected by SB4 should it be implemented in September.
ORIGINAL LAWSUIT 13. Plaintiffs, City of El Cenizo, et al., originally ified suit in this court against
defendants Texas, its Governor, Greg Abbott, and Texas Attorney General Ken Paxton, seeking declaratory and injunctive relief to prevent implementation of SB4. See Complaint for Declaratory Judgment and Injunctive Relief, filed May 8, 2017 (Doc. 1). El Cenizo's lawsuit has now been consolidated with San Antonio's and El Paso's challenges to SB4. Austin has been permitted to intervene. Each city has asserted complementary, but not identical claims. Plaintiffs in the El Cenizo lawsuit, for example, allege that SB4 violates the United States Constitution and other federal constitutional and statutory provisions by invading local sovereignty, encouraging racial profiling, threatening local municipalities with fines and local officials with removal from office for perceived non-compliance with state and federal inmiigration law. Id. at ¶J 67-78. These plaintiffs also allege that El Cenizo, Maverick County officials, and their
residentsalong with organizational plaintiffs League of United Latin American Citizens ('LULAC")wil suffer substantial harm if the State is permitted to implement
SB4. Id. at ¶11 56-66. 14. Defendant, the State of Texas, has appeared in this case.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 7 of 53
JURISDICTION AND VENUE
15. This court has subject matter jurisdiction over Houston's claim under 28 U.s.c. § 1331 and 1343(a). In addition, this court has subject matter jurisdiction over Houston's action for declaratory and injunctive relief under 28 U.S.C. § 2201 and 2202. Venue is proper in this District because at least one defendant resides in this District and all defendants are residents of the State of Texas. 28 u.s.c. § 1391 (b)(2). Venue is also proper in this District because a substantial part of the events or omissions giving rise to the claim occurred or will occur in this District, including but not limited to 5B4's pervasive impact across the state, especially in cities with large Latino populations like San Antonio. 28 U.S.C. § 1391(b)(2). Venue is also proper in this District under the doctrine of pendent venue because Houston's claims and those asserted by the consolidated plaintiffs and intervenors share a common nucleus of operative facts. The exercise of jurisdiction and venue over Houston's claims thus furthers the goals of judicial economy, convenience, and fairness to the litigants.
HOUSTON'S FACTUAL ALLEGATIONS SB4 Improperly and Unconstitutionally Makes Local Immigration Enforcement
Mandatory and Threatens to Penalize Municipalities and Policymakers Who Decline to Follow the State's Unconstitutional Mandates
16. SB4 improperly and unconstitutionally alters the obligations of municipalities under federal immigration law. Under current law, 8 U.S.C. § 1357, local authorities retain the discretion to decide whether to comply with ICE civil detainer requests (which are not orders or mandates), and whether they will enter into written agreements with ICE to be trained and certified to enforce the federal immigration
7

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 8 of 53
laws. Although Houston has not entered into such an agreement, Harris County, which encompasses Houston, had entered into a voluntary agreement with ICE but ended it as SB4 was being debated. Such an agreement represents a narrowly-tailored alternative to 5B4 in the Houston area. In addition, under 8 U.S.C. § 1373, local authorities maintain discretion regarding what type of immigration status information to collect, if any. 17. Under SB4, however, local authorities may not prohibit their officers from investigating and determining the immigration status of any person who is "in custody," "lawfully detained," or arrested, except in limited situations. It requires that any person in custody must produce a Texas driver's license or "similar governmentissued identification" in order to avoid extended detention for purposes of an immigration status check. That person must be detained if he or she fails to produce the required documentation upon demand. 18. SB4 also prohibits any municipality or local official from adopting, enforcing, or endorsing any policy that would prohibit or limit such enforcement of federal immigration law. 19. If a municipality does not comply with SB4, it may be subject to fines up to $25,500 for each day of non-compliance after the first day. The Texas Attorney General may also bring an action seeking equitable relief if the municipality's police department fails to comply with SB4.
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21. If a police chief, sheriff, constable, or jail administrator refuses to comply with SB4 by knowingly failing to honor an ICE detainer request, he or she is subject to criminal prosecution for a Class A misdemeanor. 22. Worse, if an individual holding elective or appointive office refuses to comply
with SB4for example, by "endorsing" a policy that would "materially limit" the
enforcement of federal immigration lawhe or she will be subjected to a quo warranto
proceeding, brought by the Texas Attorney General, resulting in forfeiture of and removal from such office. Under the express terms of SB4, § 752.0565(b) [Gov't Code], evidence sufficient to justify forfeiture and removal need only be a statement made by that official in opposition to SB4 or the policies it embodies.
The State of Texas Has a History, Pattern, and Practice ofEnacting Unconstitutional Laws Targeting and Disfavoring Latino Texans
23. In recent years, the federal courts have repeatedly held that the State of Texas has intentionally discriminated against and Latino and African-American Texans. 24. In Texas v. Us., 887 F. Supp. 2d 133 (D.D.C. 2012), for example, a federal court ruled that Texas had drawn its congressional and state senate districts with discriminatory intent and to the detriment of African-American and Latino voters. In reaching its conclusion, the court took note of "Texas's history of failures to comply" with the federal Voting Rights Act. Id. at 161. 25. In Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), the Fifth Circuit held that the voter identification law enacted by the Texas Legislature and signed by Governor Abbott was racially discriminatory under the Voting Rights Act, 52 U.S.C. § 10301

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 10 of 53
(West 2013). The Court specifically ruled that Texas' history of racially gerrymandered districts supported a finding of discrimination. Veasey, 830 F.3d at 257-58. 26. Finally, in Perez v. Abbott, 2017 WL 1798454 (W.D. Tex. May 2, 2017), another federal court recently ruled that Texas had drawn Congressional districts with discriminatory intent and to the detriment of Latino voters. 27. The Texas Legislature has also attempted on multiple occasions to pass laws that would punish so-called "sanctuary" jurisdictions, including failed bills in 2011 and 2015. As the federal courts have noted, these laws are "racially charged" and target Latino Texans for disfavor. Veasey v. Perry, 71 F. Supp. 3d 627, 702 (S.D. Tex. 2014), aff'd, 830 F.3d 216 (5th Cir. 2016). SB4 is another such law.
SB4 Improperly and Unconstitutionally Targets Immigrants Who Cross the Texas/Mexico Border, Most of Whom are ofLatino Descent
28. SB4 targets Latinos. That is its point. As set forth above, DHS' Customs & Border Protection Division reports that, between 2014 and 2016, 95% of persons apprehended by DHS came from Mexico, Guatemala, Honduras, or El Salvador.7 29. In addition, according to the Pew Research Center,8 Mexican nationals made up one-half of the undocumented immigrant population in the United States in 2016. An additional one-quarter of undocumented immigrants are Latino peoples from
See, e.g., Dep't of Homeland Security, Customs & Border Protection Division, Fiscal Year 2015 Border Security Report, at 1-2 (Dec. 22, 2015); Jens Manuel Krogstad & Jeffrey S. Passel, U. S. border apprehensions ofMexicansfall to historic lows, Pew Research Center (Dec. 30, 2014). 8 Jens Manuel Krogstad, et a!, 5 Facts about illegal immigration in the US., Pew Research Center (Apr.
27, 2017).
10

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Central America, South America, and the Caribbean.9 In all, as many as 71-one percent of all undocumented immigrants in the United States are from Latino nations Residents of and Visitors to Houston Who Are in Texas Lawfully But Cannot Produce the Forms ofIdentification Required by 5B4 Will Be Subjected to Unconstitutional Detention 30. To avoid detention under SB4, a Houston visitor or resident must produce proof of citizenship or lawful immigration status by showing a Texas driver's license "or similar government-issued identification" upon the demand by any police officer, functioning as an ICE officer, during any kind of "lawful detention." Unfortunately, many residents of and visitors to Houston lawfully do not possess such governmentissued identification. 31. Persons lawfully present in the United States range from citizens, to students, to physicians and scientists, to CEOs and others here on business, to tourists. United States citizens are not required to carry identification to prove their status despite the possibility that a citizen may be mistaken for a foreign national by a local police officer. Some United States citizens are not even aware of their status, given that they may have derived citizenship from other family members. 32. In addition, many students, professionals, and migrant workers, among others, are lawfully present within the United States but are not issued its government
Jeffrey S. Passe! and D'Vera Cohn, Overall Number ofU S. Unauthorized Immigrants Holds Steady Since 2009, Pew Research Center (Sept. 20, 2016). 10 Jie Zong and Jeanne Bata!ova, Frequently Requested Statistics on Immigrants and Immigration in the United States, Migration Policy Institute (March 8, 2017).
11

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 12 of 53
identification. In some cases, the documentation indicating their status consists of passport stamps, receipts from the State Department, or court records from an immigration proceeding, none of which are currently required by law to be carried at all, much less at all times. Texas now demands that they do so just to be able to attempt to comply with "papers, please" demands by random police officers. 33. Indeed, anyone can be required to produce his or her "papers." This problem is potentially enormous because, between 2008 and 2012, ICE placed approximately 29,323 detainers on legal permanent residents and U.S. citizens.1' 34. Under 5B4, local police officers without direct supervision by federal immigration authorities will be permitted to subject lawfully-present individuals to detention for purposes of a status check, in violation of state and federal law. SB4 thus incentivizes such local immigration enforcementeven if such enforcement violates
the lawby offering grants and indemnity to compliant jurisdictions and punishing
severely those officials and municipalities that do not enable or collude in such abusive actions. It is little wonder that the American Civil Liberties Union issued, in May 2017, a travel advisory for Americans travelling to Texas because of its passage of 5B4.
See Transactional Records Clearing House, ICE Detainers Placed on U.S. Citizens and Legal Permanent Residents, (Feb. 20, 2013), httri://trac.syr.edu/immigration/reports/31 1/, cited in Shareef Omar, Breaking the Ice: Reforming State and Local Government Compliance with ICE Detainer Requests, 40 Seton HallLegis.J. 159, 186 (2015).
12

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SB4 Has and Will Irreparably Harm Houston c Trade, Tourism, Investment, International Relations, Growth, and Prosperity
35. As discussed above, Houston is home to more than 92 consular offices and has, the nation's second largest port, by tonnage.12 Thus, Houston and, through Houston, Texas benefits tremendously from trade with Mexico and other nations in Central and South America and the Caribbean. 36. The United States has entered into numerous treaties that govern its relations with Mexico and other nations in Central and South America, and the Caribbean. Among relevant treaties, the North American Free Trade Agreement ("NAFTA") provides for the free passage of business professionals across borders. Pursuant to this treaty, the United States is required to provide temporary entry to foreign nationals from Canada and Mexico. 37. Under SB4, foreign nationals working in the United States under such trade treaties will be subject to increased status checks and status determinations, and may be exposed to increased risk of detention, arrest, and other deprivations. 38. Because it will foreseeably result in the improper detention of foreign nationals working in the United States under trade treaties, Texas' enactment of SB4 violates the United States' treaty obligations. 39. Texas and Houston also benefit enormously from tourist visits from foreign nationals. Houston has held multiple events with international participation each year,
12 U.S. Army Corps of Engineers, Waterbome Commerce of the United States, Part 5, National Summaries (New Orleans, LA; Annual Issues) tables 1-1 and 5-2, available at http: //www.navigationdatacenter.us/wcsc/wcsc.htm.
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Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 14 of 53
including three Super Bowls, the NCAA "Final Four," Olympic Festivals, the Houston Livestock Show & Rodeo, and related sporting events. In addition, Houston hosts other large events, academic symposia at its 14 major institutions of higher learning and NASA, and international conventions, including the mammoth annual off-shore technology conference, focused on culture, business, science, and technology. Thousands of international patients visit the Houston Medical Center annually for treatment and consultation. These events and visits generate substantial income for the local, regional, and national economies. Many of them will be lost because Texas enacted SB4. 40. When other states have enacted laws that have similarly stigmatized groups of people, state and local tourism has suffered greatly. When Arizona passed Senate Bill 1070, which required state police to participate in enhanced immigration enforcement activities, it was the subject of an international boycott. Although the U.S. Supreme Court ultimately struck down several aspects of the law, and Arizona later agreed to
not enforce other problematic portions, that boycottincluding decisions by national organizations to not conduct major conventions in the statecaused Arizona to suffer hundreds of millions of dollars in direct and indirect losses.
41. More recently, the State of North Carolina suffered an economic boycott after its legislature adopted a law discriminating against transgender individuals. Major national organizations withdrew events from the state, including the National Basketball Association All-Star Game and the NCAA "Final Four" Men's Basketball Tournament. In addition to hundreds of millions of dollars in lost event revenue, the Associated
14

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Press estimated the boycott caused the state to lose new business, including a PayPal facility that would have added an estimated $2.66 billion to the state's economy. 13 Overall, the cost of North Carolina's boycott was $ 3.76 billion. Id. 42. Several national organizations have already threatened to boycott Texas based upon the State's threatened implementation of SB4. Such a boycott would likely cause substantial and irreparable damage to Texas' and Houston's economy and Houston's hard-earned reputation as a diverse, welcoming city. 43. Further, the implementation of SB4 will discourage foreign national tourists from visiting Houston because they may fear that they will be subject to immigration enforcement measures despite their status. 44. In addition, Texas and Houston benefit greatly from investment by foreign nationals. Foreign nationals invest in local businesses, buy land, participate in educational programs, and generally contribute to the short-term and long-term growth of the local, state and national economies. According to the Greater Houston Partnership, Houston is home to 21 foreign banks, representing 12 nations, 750 foreign-owned firms, more than 430 companies with branches in 144 countries, and more than 3,440 area firms, foreign government offices and nonprofit organizations involved in international business. 45. Implementation of SB4 will discourage investment by foreign nationals in Houston because they will fear that they will be subject to immigration enforcement
13 Emery P. Dalesio & Jonathan Drew, AP Exdusive: Price tag of North Carolina's LGBT law: $3. 76B, Associated Press (Mar. 27, 2017).
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measures despite their status. Worse, they may not invest in Houston or Texas because association with a state, like Texas, that is perceived to target immigrants and, in particular, Latino immigrants, will simply be bad for business. 46. Houston has also benefitted greatly from the influx of foreign nationals who have settled in Houston and have either brought their special skills and education with them or been educated at local colleges and universities. Should they or potential Houstonians like them begin to view Houston and Texas as unwelcoming, Houston would suffer a considerable "brain drain" as highly-educated immigrants leave or simply do not settle in Texas. 47. Finally, Houston and, through Houston, Texas have prospered because of the contributions of immigrants. According to the Center for Public Policy Priorities, immigrants make up 29 percent of Houston's workforce, 31 percent of its business owners, and 21 percent of its total economic output. Moreover, even undocumented immigrants often pay taxes. The Institute on Taxation and Economic Policy estimates that undocumented immigrants paid $1.5 billion in Texas state and local taxes in 2010. Indeed, a 2006 report by the Texas Comptroller estimated that undocumented immigrants paid $424.7 million more to the State of Texas than the state spent on them in education, health care, and incarceration.14 Undocumented immigrants also often pay Social Security and Medicare taxes that they never recover.
14 See Liz Austin Peterson, Texas Report: Imm:grants Help Economy, The Washington Post (Dec.15, 2006).
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SB4 Has Afready Harmed the Houston Community and Threatens to Damage It
Irreparably
48. The passage of SB4 has already caused a severe detrimental impact on the local Houston community. Its implementation will only multiply and deepen that harm. In recent months, the HPD has encountered crime victims and their relatives who are unwilling to engage with the criminal justice system because they fear that they or their relatives and friends may be detained and deported. Indeed, Houston Police Chief Acevedo reported this spring, as SB4 was being debated, that reports of sexual assaults in immigrant communities had already dropped by a startling 43%, while reporting in such communities for all violent crime had dropped by 13%. See Exh. 1 at ¶ 13. That is compared to an 8.2 percent increase in non-Hispanic victims reporting rapes and an 11.7 percent increase in non-Hispanics reporting other violent crime. Id. 49. Because of his grave concerns about the effect SB4 has already had and will continue to have on violent crime and law enforcement across the State of Texas, particularly in immigrant communities, Chief Acevedo joined the Texas Major Cities Chiefs, consisting of Austin, Arlington, Dallas, Fort Worth, Houston, San Antonio, and the Texas Police Chiefs Association to oppose SB4 while it was being debated in the Legislature. 50. The Houston Independent School District ("HISD") likewise reports that students have missed class because they fear that ICE agents will detain them or their parents on the way to or from school. These concerns prompted HISD to pass a resolution opposing SB4 and supporting its students. It states, in relevant part:
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The Board has serious concerns regarding legislation that has been filed at the state level which exacerbates growing insecurity among some of our families, specifically Senate Bill 4, which authorizes state law enforcement officers to take an active role in immigration enforcement, as well as other proposed legislation that may repeal the DREAM Act, which allows students, regardless of immigration status, to qualify for instate tuition at state colleges and universities;
NOW, THEREFORE, BE IT RESOLVED that the Board of Education of the Houston Independent School District hereby expresses its support of members of the HISD Community who are negatively impacted by travel restrictions, as well as proposed state legislation, and reaffirms its commitment to be an education-focused environment, free of insecurity and fear, for all its students. 51. Across Houston, community organizations that provide for the needs of immigrant communities also find themselves assisting families that are afraid to leave their homes. These volunteers make grocery runs to ensure that these children, many of whom are American citizens, have diapers and milk. Organizations that serve Latino clients report a sharp drop in people showing up for services to which they are entitled or have earned. This drop will have serious ramifications for the whole Houston community. For example, because residents are declining to access preventative health care resources, they are more likely to access emergency room services when they become sick, which will impose an increased burden on local and regional health care providers. The one thing that SB4 has increased, however, is human misery. On Sundays in Houston, volunteer lawyers gather in immigrant communities to grimly discuss, with terrified undocumented immigrant parents, drafting guardianships to attempt to prevent their American-born minor children's ending up in foster care, as wards of the State, if that parent is detained and deported.
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52. In addition, Houston authorities report that undocumentedwomen are now too

afraid to report domestic abuse or seek help for themselves and their children for fear

that their spouse or boyfriend will retaliate by calling ICE. Indeed, in February 2017,

federal immigration agents went to the El Paso County Courthouse and arrested an

undocumented woman who had just received a protective order alleging that she was

a

victim

of

domestic

violence.

See

http: / /www. elpasotimes . corn/story/news /2017/02 / 15/ice-detains-domestic-

violence-victim-court/97965624/ (video of her detention at the courthouse).

53. The result of even the potential implementation of SB4 has been a breakdown

in public trust, as affected individuals feel they cannot contact municipal and non-

governmental agencies without risking falling victim to draconian and

unconstitutional immigration enforcement.

54. SB4's "community outreach" provisions cannot overcome the loss of trust. If

undocumented immigrants are too afraid to report violent crime or access food for

their children, they are highly unlikely to attend a seminar on SB4 sponsored by the

very law enforcement agencies that must detain and deliver them to ICE. Thus,

§ 752.057 [Gov't Code] will be cruelly ineffective in overcoming SB4's many constitutional infirmities.

55. SB4's amendment of Art. 2.13 [Code of Criminal Procedure] likewise fails to

protect crime victims or witnesses. Instead, it allows police officers to turn on crime

victims and witnesses and to detain them for ICE retrieval on almost any pretext once

they show up to report or testify about a crime.

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56. These existing problems will only be exacerbated because SB4 would eliminate the ability of local police chiefs and City Councils to allocate resources to fund their police departments according to the cities' own priorities and needs. Instead, particularly in those cities and towns with large Latino populations or those located near the Mexican border, officers would be required to spend time and resources to determine whether any person held in custody is subject to a request from ICE and to retain that person and such information. In addition, SB4 would require the Chief of Police to permit HPD officers to conduct other civil immigration investigations and to participate in ICE raids and other activities. The city will receive no compensation for these additional activities. Instead, officer time devoted to such tasks will be diverted from investigating and reducing violent crime and attempting to make up for the demonstrable loss of support and assistance from immigrant communities. As Chief Acevedo put it, "violent crime is on the rise across our Nation [and] some would rather men [and] women in blue go after cooks [and] nannies, instead of hardened criminals." 57. Under 8 C.F.R. § 287.7(e) (2011), the federal government is precluded from paying for the costs of cities' compliance with its detainer requests: "No detainer issued as a result of a determination made under this chapter shall incur any fiscal obligation on the part of the Department, until actual assumption of custody by the Department ..." These unfunded mandates and requirements then will add to Houston's cost of policing, and prevent it from pursuing other law enforcement priorities, including the investigation and prosecution of serious crimes.
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CAUSES OF ACTION
FIRST CAUSE OF ACTION: FEDERAL PREEMPTION
58. Houston incorporates by reference preceding paragraphs 1 through 57. 59. SB4 violates the Supremacy Clause of the United States Constitution because it directly conflicts with multiple federal laws and regulations promulgated by Congress, the President, and the Department of Homeland Security. 60. In particular, SB4 directly conflicts with 31 U.S.C. § 1342 and 8 U.S.C. § 1357(g). Subsection 1342 provides, in relevant part, that an "officer or employee of the United States Government ... may not accept voluntary [free] services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property." Id. (emphasis supplied). Routine immigration enforcement and, in particular, enforcement of ICE detainer requests, which are addressed to individuals who have already been "detained" by law enforcement or are already in "custody" does not constitute such an emergency. 61. Subsection 1357(g)(1) provides that, "notwithstanding section 1342 of Title 31,
the Attorney General may enter into a written agreement with a State, or any political
subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer ... may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law." Subsection 1357(g)(9), provides, however, that "nothing in this subsection shall be
21

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 22 of 53
construed to require any State orpolitical subdivision ofa State to enter into an agreement with the Attorney General under this subsection." Id. (emphasis supplied). Thus, the only circumstances in which local police officers may be utilized to "perform a function of an immigration officer" under federal law is when such a voluntary contract is in place. No city may be forced to enter into such a contract and, without such a contract, the federal government is prohibited by law from accepting such services from local governments without compensation. 62. The primary reason for this limitation is because the federal government may ultimately be held liable for those who act as its immigration officers. The use of contracts necessarily identifies and limits the universe of those for whom the federal government may become responsible. To that end, Subsection 1357(g) requires that any local police officer carrying out such functions, not only "be knowledgeable in federal immigration law," but the contract "shall contain a written certflcation that the officers or employees perforning the function under the agreement have received adequate training regarding the enforcement ofrelevant Federal immigration laws." Id. at § 1 357(g)(2) (emphasis supplied). Indeed, such officer "shall be subject to the direction and supervision ofthe Attorney General" who "is required to supervise and direct the individual" per specific provisions in the agreement. Id. at § 1357(g)(3) & (5). These provisions make clear that, although such police officers will be acting under color of federal law, he or she "shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims)." Id. at § 1357(g)(7) & (8). Finally, no such police
22

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officer may displace a federal employee, such as a current or future employee of ICE. Id. at § 1357(g)(6). In other words, the federal government is not permitted to use borrowed local police officers to avoid hiring the ICE and DHS employees it needs. 63. By contrast, since Houston is not the federal government, Houston does not currently provide training to its elected or appointed officials, or employees, including its police officers, regarding federal immigration laws or their enforcement. Houston does provide training and policies regarding probable cause, warrants, and lawful searches and seizures unrelated to federal immigration law. 64. Nothing in 8 U.S.C. § 1357(g)(10) or 1373 can be read to authorize the State of Texas to mandate, through civil and criminal penalties or forfeiture of office, "communicat[ion] with the Attorney General regarding the immigration status of any individual".., or "cooperat[ion] with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," or require strict compliance with every ICE request, or that local law enforcement officers acquire information on the immigration status of any detained individual. See Mercado v. Dallas Cty., 2017 WL 169102, at *16 (N.D. Tex. Jan. 17, 2017) (ICE detainer request is voluntary, not mandatory). 65. SB4 directly conflicts with the listed provisions by 1) mandating that local police officers perform immigration officer functions even though it is a violation of federal law for ICE, DHS, or any other federal government agency to accept such services without paying for them; 2) creating an unfunded mandate in violation of3l U.S.C.A. § 1342; 3) mandating that local police officers and cities provide services federal law
23

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 24 of 53
expressly makes voluntary; 3) punishing civilly, criminally, and with forfeiture of office the failure to provide services federal law expressly makes voluntary; 4) subjecting the federal government, without its permission or authorization, to liability by forcing local police officers to act under color of federal law without providing the training or supervision required by federal law from federal law enforcement agencies; 5) eliminating the knowledge, training, and supervision requirements mandated for those acting as federal immigration officers under federal law; and 6) in violation of federal law, displacing federal workers who ICE and DHS might otherwise have hired in Texas to enforce the federal immigration laws. 66. In addition, the President of the United States has inherent authority to conduct foreign affairs. To that end, the President recently issued Executive Order 13,768, which purports to defme and penalize "sanctuary jurisdictions." Although that order has been preliminary enjoined by a federal district court in California, in recent court filings and guidance memoranda, the Department of Justice has confirmed that a city such as Houston may be punished as an impermissible "sanctuary" only if it fails to comply with existing federal immigration law and, in particular, 8 U.S.C. § 1373, which addresses only voluntary communication and cooperation with ICE and DHS. Houston is and has been complying with federal immigration law and Section 1373 and is, therefore, not a "sanctuary jurisdiction" under the federal definition of that term. SB4 would, however, penalize Houston and its officials even though Houston is complying with existing federal law.
24

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67. It is, therefore, impossible for Houston to comply with both SB4 and federal law. In the alternative, SB4 frustrates the purpose of these federal laws by unleashing upon a terrified immigrant population thousands of untrained (in federal immigration law), and largely unsupervised (by ICE or the U.S. Attorney General) law enforcement personnel and others who will lose their jobs, forfeit their offices, or be subject to fmes and criminal prosecution if they are even seen not to enforce or to oppose the enforcement of federal immigration law as envisioned by Texas. On either basis, Art. 2.251 [Code of Criminal Procedure], § 39.07 [Texas Penal Code], § 87.031 [Local Gov't Code], and § 752.053(a), (b)(1), (b)(2)(B), 752.055, 752.056, 752.0565 [Gov't Code] of SB4 are preempted by federal law and of no effect. 68. In the alternative, for the same reasons, SB4 and, in particular, the listed provisions of SB4, upset the delicate balance of statutory objectives of § 1342 and 1357 to utilize only certified-trained, knowledgeable, closely-supervised (by federal officials) immigration officers to enforce federal immigration law. To that extent, Art. 2.251 [Code of Criminal Procedure], § 39.07 [Texas Penal Code], § 87.031 [Local Gov't Code], and § 752.053(a), (b)(1), (b)(2)(B). 752.055, 752.056, 752.0565 [Gov't Code] of SB4 are preempted by federal law and ofno effect. See Buckman Co. v. Plaintfft Legal Comm., 531 U.S. 341, 348 (2001).
SECOND CAUSE OF ACTION: FIRST AMENDMENT/ART. I, § 8 69. The City hereby incorporates by reference the preceding paragraphs 1 through
25

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 26 of 53
70. SB4, and, in particular, § 752.053(a)(1),752.055-56, 752.0565 [Gov't Code] of SB4, violate the First Amendment, as applied to the States through the Fourteenth Amendment, and art. I, § 8 of the Texas Constitution by penalizing the protected speech of local officials who "endorse" a "policy," even an "informal, unwritten policy," that would contradict SB4's mandates. SB4 makes clear that they may forfeit their offices based on their merely making such a statement. 71. SB4 is a content-based restriction because it only outlaws speech that is critical of SB4 and mandatory federal immigration enforcement and not speech that supports SB4 and such enforcement. 72. In addition, because § 752.0565 would punish elected officials who criticize SB4 and its policies, SB4 restricts and chills political speech. SB4, therefore, should be subjected to the highest level of constitutional scrutiny. 73. In the alternative, because it includes vague terms, such as "materially limit," "custody," "endorse," "informal or unwritten policy," and the like, SB4 is unconstitutionally overbroad because it is unclear whether it regulates a substantial amount of protected speech or not. Under federal law, any such statute restricting protected speech is deemed to be unconstitutionally overbroad and invalid in all of its applications. THIRD CAUSE OF ACTION: FOURTH AMENDMENT! ART. I, § 9/14TH AMENDMENT
PROCEDURAL DUE PROCESS
74. The City hereby incorporates by reference the preceding paragraphs 1 through
73.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 27 of 53
75. SB4 violates the Fourth Amendment of the United States Constitution, applied to the States through the Fourteenth Amendment, and art. I, § 9 of the Texas Constitution. Immigration detamers are central to SB4 and, in particular, to Art. 2.25 1 [Code of Crim. Procedure] of SB4. Because such detainers seek to detain individuals without a warrant and without making a particularized determination that the individual is likely to escape before a warrant can be obtained, they have been held to exceed ICE's statutory authority to make warrantless arrests granted by 8 U.S.C. § 1226(a) and 1357(a)(2) in violation of 5 U.S.C. § 706(2)(C). See, e.g., Moreno v. Napolitano, 213 F. Supp. 3d 999, 1009 (N.D. Iii. 2016). By requiring local police officers to enforce to the letter ICE detainer requests, obtained without a showing of probable cause or that the detainee is likely to escape, SB4 requires Houston to choose between compliance with SB4 and violation of its detainees' Fourth Amendment and Texas constitutional rights. SB4 thus subjects Houston and its officials and police officers to such detainees' claims of unconstitutional detention. On that basis, Art. 2.251 [Code of Criminal Procedure], § 39.07 [Texas Penal Code], and § 752.053,752.055-56, 752.0565 [Gov't Code] and other relevant provisions of SB4 are unconstitutional and of no effect. 76. For the same reasons, SB4 would force Houston to deprive individuals of their liberty without due process of law if Houston is required to comply with every ICE detainer request without question. In this fashion, SB4 also violates the Due Process Clause of the Fourteenth Amendment and renders the listed and other relevant provisions of SB4 unconstitutional and of no effect.
27

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 28 of 53
77. Finally, by forcing Houston officials to detain persons subject to ICE detainer requests even when the original, non-immigration grounds for their detention have expired or disappeared, SB4 violates the Fourth Amendment and Texas constitution.
FOURTH CAUSE OF ACTION: 14TH AMENDMENT SUBSTANTiVE DUE PROCESS! ART. I, § 19 DuE COURSE OFLAW
78. Houston incorporates by reference the preceding paragraphs 1 through 77. 79. Because it imposes criminal penalties and forfeiture for its violation, SB4 is analyzed under the heightened scrutiny of a criminal statute. Judged by those standards, SB4 violates the Due Process Clause ofthe Fourteenth Amendment and the Due Course of Law clause of the Texas Constitution by failing to "defme a violation of that statute with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005). Put another way, SB4 fails to "provide definite standards for those who apply them." Beckerman v. Tupelo, 664 F.2d 502, 511 (5th Cir. 1981). 80. SB4 is unconstitutionally vague because it attempts to make highly subjective discretionary decisionsconcerning "assistance," "communication," and
"cooperation" with ICE operationsmandatory requirements. See § 752.053 [Gov't
Code]. SB4 would also punish any local official who "endorses" a policy, even an "informal unwritten" one, that "materially limits" immigration enforcement without providing any manageable standards. See id. at § 752.05 1(6), 752.053. SB4 imposes criminal penalties on police chiefs and sheriffs who knowingly fail to comply with
28

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 29 of 53
immigration detamer requests for persons in their "custody," see id at art. 2.25 1(a) [Code Crim. Proc.], even though SB4 fails to define the term "custody" and may hold law enforcement chiefs liable if they release a person based on a reasonable belief they have provided adequate proof of citizenship or lawful immigration status. Finally, SB4 fails to identify any constitutional means by which local police can decide whether or not to check the status of detainees or arrestees. 81. In addition, SB4 violates the Due Course of Law provision contained within the Texas Constitution, as well as substantive due process rights protected by the Fourteenth Amendment of the United States Constitution by granting complete discretion to individual police officers and prohibiting any attempt to guide or control those officers in the enforcement of federal immigration laws. 82. SB4 also violates the Due Process and Due Course of Law clauses because it takes away Houston's discretion to decide when to comply with ICE detainers in order to ensure compliance with those clauses. This withdrawal of discretion requires that that Houston honor detainer requests even when it concludes that doing so would violate the United States and Texas Constitutions. 83. Finally, by arbitrarily imposing unduly burdensome and oppressive harms on Houston, its officials, its employees, and its residents, and by substantially restricting protected conduct including freedoms of expression, association, and travel, SB4 is not rationally related to any legitimate governmental interest.
29

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 30 of 53
FIFTH CAUSE OF ACTION: 14TH AMENDMENT EQUAL PROTECTION/ART. I, §3 84. The City hereby incorporates by reference the preceding paragraphs 1 through
83.
85. The Fourteenth Amendment to the United States Constitution and art. I, § 3 of the Texas Constitution provide for equal protection under law. 86. 5B4 was enacted with the intention and as part of the State of Texas' pattern and practice of enacting unconstitutional laws, including at least six laws that, according to federal courts, have discriminated against Latino Texans in violation of these equal protection clauses. Just as federal courts have found that Texas drew congressional and legislative districts with the specific intent of disenfranchising Latino voters and imposed "voter ID" requirements with the specific intent of disenfranchising Latino voters and voters from other protected classes, Texas has enacted 5B4 with the specific intent of threatening, harassing, and intimidating Latino residents of Texas and depriving such residents of their civil liberties. 87. SB4 and, in particular, § 752.053(b) [Gov't Code] of SB4, impermissibly invites police officers to engage in unconstitutional investigative practices, including profiling based upon race, ethnicity, national origin, and perceived status. SB4 prevents all legislative, executive, or judicial action at the local level that is designed to protect or even guide individual police officers in enforcing laws affecting immigrants as such. Because SB4 fails to present any cognizable guidelines for enforcement of suspected civil immigration violations, SB4's purported "savings clause," id. at § 752.059, is illusory. SB4 cannot be constitutionally applied and should be enjoined in its entirety.
30

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 31 of 53
88. Further, SB4's citizen reporting provision, § 752.055, treats citizens and lawful immigrants differently, according privileges to citizens alone. There is no constitutional basis for this discriminatory treatment. 89. State-compelled enforcement of federal immigration laws is not a compelling interest that justifies such race-based discrimination. SB4 is not narrowly-tailored, and is not the least restrictive means of achieving the requisite governmental interest, if any. 90. There is likewise no rational basis for removing immigration enforcement from any control or guidance by police, chiefs, sheriffs, other local leaders, ICE itself, or the U.S. Attorney General as provided by contract by federal law. See 8 U.S.C. § 135 7(g).
SIXTH CAUSE OF ACTION: DELEGATION DOCTRINE
91. Houston hereby incorporates by reference the preceding paragraphs 1 through Iij 92. As set forth above, 8 U.S.C. § 1357(g) requires that any local police officer, in carrying out the functions of a federal immigration officer, not only "be knowledgeable in federal immigration law but that the federal government certify "[t]hat the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws." Id. at § 1357(g)(2). Indeed, such officer "shall be subject to the direction and supervision of the [U.S.] Attorney General," who "is required to supervise and direct the individual" per specific, required provisions in the voluntary agreements between the local and federal governments. Id. at § 1357(g)(3) & (5).
31

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 32 of 53
93. By circumventing these contract, training, and certification requirements; empowering local police officers to act as immigration officers with no special training or federal direction, or federal supervision at all; effectively making mandatory the performance by local police officers of the duties of federal immigration officers by penalizing severely those who would prevent or refuse such performance; and by prohibiting the adoption or endorsement of policies that would prevent such performance, SB4 has destroyed § 135 7's otherwise proper delegation of limited federal immigration authority to local officers. SB4's usurpation of federal delegation of such authority is, therefore, improper, standard-less, and void under the delegation doctrine. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001); Yakus v. United States, 321 U.S. 414, 426 (1944).
SEVENTh CAUSE OF ACTION: HOME RULE 94. Houston hereby incorporates by reference the preceding paragraphs 1 through
93.
95. Houston is a home-rule city. Its charter describes the procedure under which local officials, including a Mayor and City Council, are elected and removed from office. It also reserves to Houston and its governing body all constitutional home-rule authority, including the discretion to allocate resources and determine its own priorities in promoting the welfare, health, prosperity, comfort, public safety, and convenience of all Houstonians. 96. Under the Texas Constitution, art. XI, § 5, home-rule cities such as Houston possess the full power of self-government and "look to the Legislature not for grants of

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 33 of 53
power, but only for limitations on their power." See Dallas Merch. & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-9 1 (Tex. 1993). Unlike the federal Supremacy clause, however, the State of Texas, under art. XI, § 5, may not simply legislate and expect cities to defer. City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990). Instead, a city must defer only to the extent that its law conflicts with the state statute. 97. The State of Texas has imposed no regulations of its own that conflict with those imposed by municipalities. Instead, the State of Texas now purports to tell municipalities how to exercise power that was conferred on them by the federal government and the State Constitution that the cities still retain. The Texas Constitution's home-rule provision does not permit such micro-management. 98. SB4 and, in particular, § 752.0565 [Gov't Code] of SB4, entitled "Removal from Office," violates the Home Rule provision of the Texas Constitution, art. XI, § 5, by improperly denying Houston the power of self-government, including the right to elect and remove local officials, by misusing and misapplying quo warranto proceedings in a situation for which they were never intended or suited. 99. SB4 also violates art. XI, § 5, by improperly infringing Houston's right to determine for itself how to exercise its own police power. Under the Houston City Charter, art. 16, § 1: "The City of Houston shall have power by ordinance duly passed to establish and maintain the City Police Department, prescribe the duties of policemen and regulate their conduct." In addition, art. VI, § 7a gives Houston's mayor the power to appoint and remove heads of departments.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 34 of 53
100. Pursuant to that provision, § 34-22 of Houston's Code of Ordinances states: "There is hereby created the office of the chief of police in the police department of the city. The chief of police shall be appointed by the mayor and confirmed by the city council. Subject only to the orders and actions of the city council and mayor, the chief of police shall be the executive officer and director of the police department. He shall have management of the department, shall exercise all of the functions assigned to the department, and shall carry out the provisions of law and of ordinances with respect to
such functions." 101. Finally, neither the United States nor Texas Constitutions grant the Texas Legislature any authority to regulate the immigration status offoreign nationals. To the extent that SB4 seeks to regulate the manner in which Houston provides for the public
health and safety of all of its residents and visitors, including foreign nationals, SB4 is an unconstitutional violation of Houston's home-rule authority.
COMMON QUESTIONS OF LAW AND FACT 102. Houston's claims arise from common questions of fact and law asserted by the consolidated plaintiffs and intervenors in their lawsuits seeking to invalidate SB4. Common questions of law include the extent to which 1) SB4 intrudes on federal authority to regulate the status of foreign nationals within U.S. borders and cooperation and communication with local government and is thus preempted; 2) 5B4 is vague; and 3) SB4 impedes the protected First Amendment conduct of local officials, violates the Fourth and 14th Amendments to the U.S. Constitution and corresponding provisions of the Texas Constitution; 4) improperly and unconstitutionally infringes
34

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 35 of 53
both cities' constitutional home-rule authority. Common questions of fact include the manner in which SB4 will impact local law enforcement activities and how it will negatively harm both local communities.
PRAYER FOR RELIEF The City of Houston respectfully seeks the following relief: allowing Houston to intervene in the consolidated lawsuits; a declaration that the referenced provisions of SB4 are preempted and/or unconstitutional; a preliminary and permanent injunction barring Texas from enforcing SB4 in whole or in part; such further relief as to which the Court may fmd Houston entitled.
35

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 36 of 53
Respectfully submitted,
Cir OF HOUSTON LEGAL DEPARTMENT
City Attorney State Bar No. 12305450 ronald.lewis@houstontx.gov Judith L. Ramsey Chief, General Litigation Section State Bar No. 16519550 judith.ramsey@houstontx.gov Patricia L. Casey ** Senior Assistant City Attorney State Bar No. 03959075 pat.casey@houstontx.gov Connica Lemond ** Senior Assistant City Attorney State Bar No. 24031937 connica.lemond@houstontx.gov Collyn A. Peddie Senior Assistant City Attorney State Bar No. 15707300 collyn.peddie@houstontx.gov Fernando Dc Leon ** Senior Assistant City Attorney State Bar No. 24025325 fernando. deleon22ithoustontx.gov 900 Bagby, 4th Floor Houston, Texas 77002 Telephone: 832.393.6462 Facsimile: 832.393.6259
Attorneysfor Intervenor, City ofHouston
** - Pending Pro Hac Vice Permission
'ri

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 37 of 53

CERTIFICATE OF SERVICE
I hereby certify that on June 23, 2017, I served the following attorneys with a true and
correct copy of the foregoing document in accordance with Rule 5(b) ofthe Federal Rules ofCivil
Procedure.

C'dd

Via Electronic Mail

ATTORNEYS FOR EL CENIZO PLAINTIFFS:

Andre I. Segura

asegura(ac1u.org

Omar C. Jadwat ojadwat(äiaclu.org

Spencer Amdur

samdur(aclu.org

Lee Gelernt

lgelemt(aclu.or

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street

New York, New York 10004

212.549.2676 Telephone

212.549.2654 Facsimile

Cody Wofsy

cwofsy@aclu.org

Stephen B. Kang
Cecillia D. Wang cwangaclu.org

AMERICAN CIVIL LIBERTIES UNION

39 Drumm Street

San Francisco, California 94111

415.343.0785 Telephone

415.395.0950 Facsimile

Edgar Saldivar

esaldivar(aclutx.org

AMERICAN CIVIL LIBERTIES UNION FouNDATIoN OF TEXAS

P.O. Box 8306

Houston, Texas 77288

713.325.7011 Telephone

713.942.8966 Facsimile

Max Renea Hicks rhicks@renea-hicks.com
LAW OFFICE OF MAX RENEA HICKS
P.O. Box 303187 Austin, Texas 78703 512.480.8231 Telephone

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 38 of 53

Luis Roberto Vera, Jr.

lrv1aw(2sbcg1obal.net

LAW OFFICES OF Luis ROBERTO VERA & ASSOCIATES, P.C.

111 Soledad, Suite 1325

San Antonio, Texas 78205-2260

210.225.3300 Telephone

210.225.2060 Facsimile

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:

J0 Anne Bernal

ioanne.bernal@ca.epcounty.com

EL PASO COUNTY ATTORNEY

El Paso County Bldg.

500 E. San Antonio St., Room 203

El Paso, Texas 79901-2419

915.546.2083 Telephone

915.546.2133 Facsimile

Jose Garza

jgarza(tr1a.org

LAW OFFICE OF JOSE GARZA

7414 Robin Rest Dr.

San Antonio, Texas 78209

210.392.2856 Telephone

Michael Patrick Moran

michaelggmtx.com

GARZA GOLANDO MORAN, PLLC

115 E. Travis Street, Suite 1235

San Antonio, Texas 78205

210.892.8543 Telephone

ATTORNEYS FOR SAN ANTONIO PLAINTIFFS:

Deborah L. Klein

Deborah.kleinsanantonio.gov

OFFICE OF THE CITY ATTORNEY, LITIGATION DIVISION

Frost Bank tower 100 West Houston Street, 8h Floor

San Antonio, Texas 78205-3966

210.207.8919 Telephone

210.207.4357 Facsimile

Andrea E. Senteno

asenteno(ma1def.org

Celina Y. Moreno

cmoreno(maldef.org

Marisa Bono

mbonomaldef.org

Nina Perales

npera1esma1def.org

Tanya g. Pellegrini

tpllegrinirna1def.org

John Paul Salmon

isalmonma1def.org

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF)

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 39 of 53

110 Broadway, Suite 300 San Antonio, Texas 78205 202.293.2828 Telephone 202.293.2849 Facsimile

ATTORNEYS FOR CITY OF AUSTIN INTERVENORS:

Christopher J. Coppola Michael J. Siegel
CITY OF AUSTIN
P.O. Box 1546 Austin, Texas 78767 512.974.2161 Telephone 512.974.1311 Facsimile

christopher.coppola(austintexas,gov michael.siege1(austintexas.gov

ATTORNEYS FOR TRAVIS COUNTY INTERVENORS:

Anthony J. Nelson

tony.ne1son(traviscountytx.gov

Laurie R. Eiserloh

laurie.eiserlohctraviscountytx.gov

Sharon Talley

sharon.tal1ey(ätraviscountytx.gov

Sherine E. Thomas

sherine.thornas(traviscountytx.gov

Tim Labadie

tim.labadie@traviscountvtx.gov

TRAVIS COUNTY ATTORNEY
314 West th Street, Room 590

Austin, Texas 78701

512.854.4801 Telephone

512.854.4808 Facsimile

ATTORNEYS FOR DEFENDANTS:

Andrew D. Leonie, III

leonie@texasattomeygeneral.gov

David J. Hacker

david.hacker(oag.texas. gov

David A. Nimocks

austin.nirnocksoag.texas.gov

Joel Stonedale

joel.stonedale(2,oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
209 W. 14th St., 8th Floor

Austin, Texas 78701
512.475.3281 Telephone

Darren L. McCarty

darren,mccarty(oag,texas.gov

OFFIcE OF TEXAS ATTORNEY GENERAL

Executive Administration 240 W. 14th Street, 7th Floor

Austin, Texas 78701

512.936.0594 Telephone

512.936.0545 Facsimile

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 40 of 53
Exh. 1

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 41 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DiVISION

City of El Cenizo, Texas, et al.
Plaintiffs, Travis County, et al.
Plaintiff-Intervenors,
v.
State of Texas, et al.
Defendants.

§

§

§

§

§

Civil Case No. 5:17-cv-404-OG

§
§

§

§

§

§

§

DECLARATION OF ART ACEVEDO

Background on Houston and Chief Acevedo 1. My name is Art Acevedo, and I am currently the Chief of Police for the City of

Houston, Texas. I was sworn in as Chief of Police for the City of Houston on November
30, 2016.

2. I have over 30 years of law enforcement experience. Prior to my appointment as Houston's Chief of Police, I served as the Chief of Police for the City of Austin in 2007.
I began my law enforcement career in 1986 as a field patrol officer in East Los Angeles with the California Highway Patrol. I rose through those ranks and was named Chief of the California Highway Patrol in 2005.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 42 of 53
3. I have a Bachelor's of Science Degree in Public administration from the University of
La Verne in California.
4. The City of Houston is the fourth most populous city in the nation with a population of over 2.3 million residents. Its population is comprised of citizens, non-citizens, legal
residents, visitors and nondocumented immigrants.
5. The safety of the people of Houston is paramount. To that end, the Houston Police
Department ("HPD") works extremely hard to build and maintain trust, communication, and strong relationships with the communities it is sworn to serve. As Chief, I lead a
department of 5,200 sworn law enforcement officers and 1,200 civil support personnel.
On average, HPD annually responds to 1.2 million calls for service, makes 400,000 traffic stops and actively investigates 150,000 crimes. HPD works tirelessly to make our community safer by arresting those who commit criminal actions that threaten our
communityregardless of their immigration status.
6. HPD works cooperatively with our federal partners, including Immigration and Customs Enforcement, to disrupt violent street gangs that threaten our communities. We work in conjunction with all federal agencies to arrest those who are involved in human
trafficking. If federal agencies file criminal charges on any person, HPD will arrest the subject regardless of immigration status.
SB4
7. I have read Texas Senate Bill 4 ("SB 4"), and based on my extensive experience in law
enforcement, I have many concerns regarding this law, some of which I put forth before
the state legislature prior to SB4 becoming law.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 43 of 53 8. I believe that all the City of Houston is safer when everyone, regardless of immigration
status, feels safe interacting with law enforcement. Broad rules, such as those imposed by SB4, that push local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and the diverse communities in Flouston.
9. I am proud of the hard work that HPD does to keep the City of Houston safe. I am concerned that SB4 will lead to officers inquiring about the immigration status of every person they encounter, or worse, only inquiring about the immigration status of persons based on their appearance. And if it does, it will deter witnesses and victims from assisting our officers in apprehending those who commit crimes, as I explain in more
detail below.
10. In addition, law enforcement professionals must be able to direct the efforts of its officers to meet the needs of the community it serves. SB4 prohibits policies that would allow law enforcement professionals from determining the best use of its limited manpower. This bill would take away the ability of police chiefs to prioritize their enforcement
efforts, which impedes HPD in its mission to make the community safer. For example, SB4 states that a law enforcement agency may not "prohibit or discourage" an employee from taking certain actions in detaining someone to further inquire about immigration status, or contacting ICE. Therefore, with the language of the bill, a police chief will be
potentially violating the law if he or she deploys that officer to address a burglary in progress rather than investigating a purely civil offense of illegal presence in the country. While both are important, it needs to be the chief of police that addresses the resources of
the department.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 44 of 53
SB 4 Undermines Public Safety by Making Victims Afraid to Report Crimes and Witnesses Afraid to Cooperate in Prosecution of Those Crimes
11. Law enforcement agencies such as HPD have worked extremely hard to build trust and a spirit of cooperation with immigration groups through community based policing and outreach programs. Broad mandates for local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and the diverse communities they serve. This will lead to less cooperation
from members of the community and foster a belief that these communities cannot seek assistance from police for fear of being subjected to immigration status investigation. 12. SB4 will harm the community policing efforts of my office. Officers may start inquiring about the immigration status of every person they encounter, or worse, inquire about the immigration status of people based on their appearance. An undocumented immigrant will not come forward and provide needed assistance and cooperation if he or she is
concerned that they will be deported or subject to an immigration status investigation. Distrust and fear of contacting or assisting the police has already become evident among even legal immigrants. Legal immigrants are beginning to avoid contact with the police for fear that they themselves or undocumented family members or friends may become subject to immigration enforcement. 13. Such a divide between the local police and immigrant groups will result in increased
crime against immigrants and in the broader community, create a class of silent victims,
and eliminate the potential for assistance from immigrants in solving crimes or

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 45 of 53
preventing crime. If we don't arrest criminals who victimize our immigrant communities, we allow them to remain free to victimize every one of us. HPD has found that the number of Hispanics reporting rapes has dropped 43 percent compared to the
same time last year, with a 13 percent drop in other violent crimes. That's compared to an 8.2 percent increase in non-Hispanic victims reporting rapes and an 11.7 percent increase in non-Hispanics reporting other violent crime. When undocumented immigrants are afraid to report a crime for fear of police handing them over to ICE, that means a criminal goes free to prey on more people.
14. When it comes to crime, we are in this together, regardless of race, sex, religion or national origin. SB4 will make our communities more dangerous, not safer. It's
concerning for me that the state, seeks to criminalize leadership in our cities and seeks to control our police departments.
Required Immigration Enforcement Activities and Impact on HPD Officers Who are Not Trained in Immigration Law or Immigration Enforcement 16. To the extent that SB4 seeks to address immigration enforcement in the state of Texas,
forcing local law enforcement agents to become immigration agents is not the solution. HPD officers are very well trained on the laws that they enforce. Our department's requirements for training even go above the Texas Commission on Law Enforcement (TCOLE) standards. However, HPD does not train on immigration law. 17. Because HPD officers are not trained in determining a person's immigration status, which in my experience is a very complicated determination, I believe that officers may
inevitably rely on race and ethnicity, and will unlawfully prolong detentions because of

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 46 of 53
this practice. Even if trained, there will be an increase in the risk of these kinds of violations, and members of the community will still fear interaction with law
enforcement.
18. Because of the mandates of SB4, HPD will be forced to expend additional resources, that
are already stretched as it is, to train officers on immigration law and supervising officers
on those aspects of the job. HPD should be committing itself and its resources to training
officers in laws and responsibilities to stop the violent crimes happening in our communities and protecting those who cannot protect themselves. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.
12"! Executed on this I. 1 day of June, 2017.
/2eved Chief of Police, Houston Police Department

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 47 of 53
Exh. 2

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 48 of 53

IN THE UNiTED STATES DISTRICF COURT FOR THE WESTERN DISTRICF OF TEXAS SAN ANTONIO DiVISION

City of El Cenizo, Texas, et al.
Plaintiffs, Travis County, et al.
Plaintiff-Intervenors,
v.
State of Texas, etal.
Defendants.

§

§

§

§

§

Civil Case No. 5:17-cv-404-OG

§

§

§

§

§

§

§

DECLARATION OF ART ACEVEDO

Background on Houston and Chief Acevedo

1

My name is Art Acevedo, and I am currently the Chief of Police for the City of

Houston, Texas. I was sworn in as Chief of Police for the City of Houston on November
30, 2016.

2. I have over 30 years of law enforcement experience. Prior to my appointment as Houston's Chief of Police, I served as the Chief of Police for the City of Austin in 2007. I began my law enforcement career in 1986 as a field patrol officer in East Los Angeles with the California Highway Patrol. I rose through those ranks and was named Chief of the California Highway Patrol in 2005.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 49 of 53
3. I have a Bachelor's of Science Degree in Public administration from the University of La Verne in California.
4. The City of Houston is the fourth most populous city in the nation with a population of over 2.3 million residents. Its population is comprised of citizens, non-citizens, legal
residents, visitors and nondocumented immigrants.
5. The safety of the people of Houston is paramount. To that end, the Houston Police
Department ("HPD") works extremely hard to build and maintain trust, communication, and strong relationships with the communities it is sworn to serve. As Chief, I lead a
department of 5,200 sworn law enforcement officers and 1,200 civil support personnel.
On average, HPD annually responds to 1.2 million calls for service, makes 400,000 traffic stops and actively investigates 150,000 crimes. HPD works tirelessly to make our community safer by arresting those who commit criminal actions that threaten our
communityregardless of their immigration status.
6. HPD works cooperatively with our federal partners, including Immigration and Customs Enforcement, to disrupt violent street gangs that threaten our communities. We work in conjunction with all federal agencies to arrest those who are involved in human trafficking. If federal agencies file criminal charges on any person, HPD will arrest the
subject regardless of immigration status. SB4
7. I have read Texas Senate Bill 4 ("SB 4"), and based on my extensive experience in law
enforcement, I have many concerns regarding this law, some of which I put forth before
the state legislature prior to SB4 becoming law.

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 50 of 53 8. I believe that all the City of Houston is safer when everyone, regardless of immigration
status, feels safe interacting with law enforcement. Broad rules, such as those imposed by SB4, that push local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and the diverse communities in Houston.
9. I am proud of the hard work that HPD does to keep the City of Houston safe. I am concerned that SB4 will lead to officers inquiring about the immigration status of every person they encounter, or worse, only inquiring about the immigration status of persons based on their appearance. And if it does, it will deter witnesses and victims from
assisting our officers in apprehending those who commit crimes, as I explain in more detail below.
10. In addition, law enforcement professionals must be able to direct the efforts of its officers to meet the needs of the community it serves. SB4 prohibits policies that would allow law enforcement professionals from determining the best use of its limited manpower. This bill would take away the ability of police chiefs to prioritize their enforcement
efforts, which impedes HPD in its mission to make the community safer. For example, SB4 states that a law enforcement agency may not "prohibit or discourage" an employee from taking certain actions in detaining someone to further inquire about immigration status, or contacting ICE. Therefore, with the language of the bill, a police chief will be
potentially violating the law if he or she deploys that officer to address a burglary in progress rather than investigating a purely civil offense of illegal presence in the country. While both are important, it needs to be the chief of police that addresses the resources of
the department.
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SB 4 Undermines Public Safety by Making Victims Afraid to Report Crimes and Witnesses Afraid to Cooperate in Prosecution of Those Crimes
11. Law enforcement agencies such as HPD have worked extremely hard to build trust and a spirit of cooperation with immigration groups through community based policing and outreach programs. Broad mandates for local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and the diverse communities they serve. This will lead to less cooperation from members of the community and foster a belief that these communities cannot seek
assistance from police for fear of being subjected to immigration status investigation. 12. SB4 will harm the community policing efforts of my office. Officers may start inquiring
about the immigration status of every person they encounter, or worse, inquire about the immigration status of people based on their appearance. An undocumented immigrant will not come forward and provide needed assistance and cooperation if he or she is
concerned that they will be deported or subject to an immigration status investigation. Distrust and fear of contacting or assisting the police has already become evident among even legal immigrants. Legal immigrants are beginning to avoid contact with the police for fear that they themselves or undocumented family members or friends may become subject to immigration enforcement. 13. Such a divide between the local police and immigrant groups will result in increased
crime against immigrants and in the broader community, create a class of silent victims,
and eliminate the potential for assistance from immigrants in solving crimes or

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Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 52 of 53

preventing crime. If we don't arrest criminals who victimize our immigrant communities, we allow them to remain free to victimize every one of us. HPD has found that the number of Hispanics reporting rapes has dropped 43 percent compared to the
same time last year, with a 13 percent drop in other violent crimes. That's compared to an 8.2 percent increase in non-Hispanic victims reporting rapes and an 11.7 percent increase in non-Hispanics reporting other violent crime. When undocumented
immigrants are afraid to report a crime for fear of police handing them over to ICE, that
means a criminal goes free to prey on more people.
14. When it comes to crime, we are in this together, regardless of race, sex, religion or national origin. SB4 will make our communities more dangerous, not safer. It's
concerning for me that the state, seeks to criminalize leadership in our cities and seeks to control our police departments.
Required Immigration Enforcement Activities and Impact on HPD Officers Who are Not Trained in Immigration Law or Immigration Enforcement 16. To the extent that SB4 seeks to address immigration enforcement in the state of Texas, forcing local law enforcement agents to become immigration agents is not the solution. HPD officers are very well trained on the laws that they enforce. Our department's requirements for training even go above the Texas Commission on Law Enforcement (TCOLE) standards. However, HPD does not train on immigration law. 17. Because HPD officers are not trained in determining a person's immigration status, which in my experience is a very complicated determination, I believe that officers may inevitably rely on race and ethnicity, and will unlawftilly prolong detentions because of

Case 5:17-cv-00404-OLG Document 139 Filed 06/30/17 Page 53 of 53

this practice. Even if trained, there will be an increase in the risk of these kinds of violations, and members of the community will still fear interaction with law
enforcement.
18. Because of the mandates of SB4, HPD will be forced to expend additional resources, that
are already stretched as it is, to train officers on immigration law and supervising officers
on those aspects of the job. HPD should be committing itself and its resources to training
officers in laws and responsibilities to stop the violent crimes happening in our communities and protecting those who cannot protect themselves.

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.

72v'I

Executed on this

day of June, 2017.

Chief of Police, Houston Police Department

 
 Case 5:17-cv-00404-OLG Document 142 Filed 06/30/17 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DiVISION

CITY OF EL CENIZO, et.al.

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EL PASO COUNTY; RICHARD WILES,

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SHERIFF OF EL PASO COUNTY in his official

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capacity; and the TEXAS ORGANIZING

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PROJECT EDUCATION FUND,

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Plain tzjfs,

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Civil Action No. 5: l7-VO404-L
(Lead Case) Case No. 5:17-CV-00459-OLG Consolidated

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TEXAS ASSOCIATION OF HISPANIC

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COUNTY JUDGES AND COUNTY

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COMMISSIONERS,

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Proposed Plaintff/Intervenor

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V.

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STATE OF TEXAS

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Defendants,

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COMPLAINT IN INTERVENTION OF PLAINTIFF-INTERVENORS TEXAS ASSOCIATION OF HISPANIC COUNTY
JUDGES AND COUNTY COMMISSIONERS

I. PRELIMINARY STATEMENT:

1.

Senate Bill 4 ("SB 4"), also known as the "Show Me Your Papers Bill," is an

unprecedented, cruel, and vague law that is aimed at the heart of Texas. It violates the Constitution of

the United States, the Texas Constitution, and federal law and should be immediately and permanently

enjoined. The State of Texas has a long, notorious history of disfranchising voters by various

methods and discriminating against classes of voters, especially on account of race and

2.

There are many legal flaws with SB 4. Racial animus fueled SB 4's enactment, tainting

the entire law with an impermissible legislative purpose. The law's language is

unconstitutionally vague, chills policy dissent in violation of the First Amendment and leaves

Case 5:17-cv-00404-OLG Document 142 Filed 06/30/17 Page 2 of 14

those potentially subject to its mandates without meaningful notice of what acts are forbidden. SB 4 will make all Texans less safe by eroding the discretion of our local law enforcement and

law enforcement on college campuses, interfering with the chain of command and the existing

decision-making processes of local officials, and preventing the reporting of crimes. Finally, SB

4 invites racial profiling, permitting local officers to demand "papers" from virtually any person

in Texas at any time. History and logic supports that all Texans will not be equally subject to this

harassment: Texans of Hispanic heritage and immigrants and their families, particularly those

from Mexico, Central American and other Spanish-speaking countries, will be targeted.

3.

This historic and unconstitutional attack on the core values and identity of Texas is

especially harmful to populations represented by the Texas Association of Hispanic County

Judges and County Commissioners (the "HJ&C")

4.

HJ&C is a unique association in Texas: it is an association of county elected officials

that represent bilingual, bi-national, multi-cultural populations and areas that are geographically

distinct. HJ&C includes elected officials from the following South/West Texas Counties:

Hidalgo, Cameron, Starr, Zavala, Zapata, Webb, Maverick, Frio, LaSalle and El Paso. It is part

of the largest border community in the United States, and one of the safest communities in the nation, leading the country in public safety. In its attack upon immigrants of all nationalities,

against Mexican Americans, and against Hispanic communities, SB 4 stands in stark contrast to

South/West Texas.

5.

It is insulting to the people and leaders of HJ&C that the Texas Legislature continues to

erode the policy decision-making and sovereignty of local communities based on irrational,

unfounded "fears" of immigrants.

6.

As it has done for hundreds of years, Texas Counties will protect its heritage, identity

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and adherence to constitutional values such as equality and justice and will do so with everything that it has. It is for these reasons and more, that the HJ&C files this suit in intervention seeking declaratory and injunctive relief.
7. The HJ&C seek declaratory and injunctive relief against the State of Texas, Texas Governor Greg Abbott, Texas Attorney General Ken Paxton, and Director Steve McCraw of the Texas Department of Public Safety for the following legal violations in connection with the enactment, administration, and prospective enforcement of SB 4: 1) SB 4 was adopted with an impermissible purpose which violates the Fourteenth Amendment's guarantee of the equal protection of laws; 2) SB 4 is unconstitutionally vague and violates the Fourteenth Amendment's
due process clause; 3) SB 4 violates the Fourth Amendment protection against unreasonable
searches and seizures; 4) SB 4 violates the supremacy clause, Art. V § 2, of the United States
Constitution, as federal immigration enforcement is wholly dedicated to the federal government and may not be usurped by the states; 5) SB 4 violates the First Amendment prohibition against
governmentally-controlled speech or expression by disallowing the endorsement of a policy by public officials that prohibits or materially limits the enforcement of immigration laws; and
fmally, and 6) SB 4 violates the Texas Constitution. 8. In addition, the HJ&C also seek a declaratory judgment that Texas Counties' current policies regarding federal immigration enforcement comply with state and federal law and do not violate SB 4.
II. JURISDICTION AND VENUE 9. This action raises federal questions under the United States Constitution, particularly Article 1, and the First, Fourth, Fourteenth Amendments. In addition, this court has jurisdiction
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over these constitutional claims pursuant to 42 U.S.C. § 1983.
10. The court has jurisdiction under 28 U.S.C. § 1331, 1346. This court has further
remedial authority under the Declaratory Judgment Act, 28 u.s.c. §2201-02. 11. This court has supplemental jurisdiction over any state law claims pursuant to 28 u.s.c.
§ 1367, "in any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy under Article ifi of the United States constitution." 12. Venue lies in this district pursuant to 28 U.S.C. § 1391 because a substantial part of the
events or omissions giving rise to the claim occurred in this district. III. PARTIES
13. Plaintiff-Intervenor HJ&C, is an association of county elected officials; they are Hispanic
elected county officials, and represent Hispanic populations; they have an interest in protecting
the rights of Hispanics free of racial discrimination. They face removal from office for violating SB4. 14. According to the 2010 Census, Texas had a total population of 25,145,561, with a Hispanic population of 9,460,921 (37.6%). HJ&C is comprised of county elected officials that represent a substantial portion of the Hispanic population. 15. Defendant State of Texas is one of the fifty united States of America.
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The State of Texas, is a free and independent sovereign state of the United States beholden to the principle of limited government enshrined in the United States and Texas
Constitutions
16. Defendant Greg Abbott is the Governor of the State of Texas and signed SB 4 into law on May 7, 2017. He is the Chief Executive officer of the State of Texas and is responsible for the appointment of officials who administer state law enforcement.
Governor Abbott is sued in his official capacity.
17. Defendant Ken Paxton is the Attorney General of the State of Texas, which is an executive office that represents the State of Texas in all actions in which the State may
be a party. As to his responsibilities for SB 4, he is the officer who shall seek mandamus
or injunction if and when local entities violate SB 4. He is also the State officer given the
sole authority to seek a quo warranto or a removal action against a public official who has violated SB 4. He is sued in his official capacity
18. Defendant Steve McCraw is the Director of the Texas Department of Public Safety (DPS). He is responsible for the policies and practices of the DPS officers and their enforcement of federal immigration laws. These officers, under SB 4, are given the authority during any lawful detention to inquire into the nationality of the detained party.
Director McCraw is sued in his official capacity. lv. FACTUAL ALLEGATIONS A. General Facts
19. SB 4 was signed into law on May 7, 2017. It is the most restrictive and prohibitive
anti-immigrant state law of the fifly states.
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20. SB 4 prohibits local entities from adopting, enforcing, or endorsing a policy that
prohibits or materially limits the enforcement of "immigration laws," a term without meaningful defmition, or, as demonstrated by pattern or practice, materially limiting or prohibiting enforcement of such laws.
21. SB 4 prohibits law enforcement agencies, as demonstrated by pattern or practice, from refusing to comply with an immigration detainer request issued by the federal government. An immigration detainer, also known as an "ICE hold," is a document by which the United States Immigration and Customs Enforcement (ICE) requests a local law enforcement agency to hold a person ICE suspects has violated civil immigration
laws, so that ICE may gain custody, even if there are no underlying criminal charges to
justify continued detention. 22. In addition, SB 4 provides that local entities may not prohibit or materially limit a police officer including safety officers on college campuses from inquiring into the
immigration status of a person under lawful detention or under arrest; inquiring into the detainee's place of birth; sending that information to the United States Citizenship and
Immigration Services (USCIS), ICE, or any other federal agency; assisting or operating with a federal immigration officer; or allowing the federal government access to a jail to enforce federal immigration law.
23. Any "citizen" residing in the jurisdiction of a local entity may file a complaint with
the attorney general alleging that a jurisdiction has violated SB 4. The Attorney General
may then seek a writ of mandamus or injunction to compel the jurisdiction to comply
with SB 4. 24. Jurisdictions that intentionally violate SB 4 face severe, escalating civil penalties,
including fmes of $25,000 per day of violation, excluding the first day of a violation.
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25. Public officials who violate SB 4 face removal from office via quo warranto. A
public statement made by a public official is evidence for removal. Sheriffs, chiefs of
police, constables, or any one with primary authority for administering a jail is criminally liable for knowingly failing to comply with a detainer request.
26. In total, SB 4 attempts to force the hands of local government to enforce federal
immigration laws. Law enforcement officials who do not comply will have committed crimes. Public officials who do not comply face removal. All law enforcement agencies
and jurisdictions that opt to stay out of immigration enforcement face stringent civil liability. And, persons in Texas, particularly Mexican-Americans, those of Hispanic
descent, and immigrants and their families, will be caught in the crossfire. B. Fourteenth Amendment Unlawful Discrimination
27. The Fourteenth Amendment to the United States Constitution guarantees persons the
equal protection of the laws, and prohibits the government from treating persons
differently than a similarly situated individual. To establish a Fourteenth Amendment violation the district court should examine factors detailed by the United States Supreme
Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 265-68 (1977). 28. The Supreme Court in Arlington Heights considered several factors as informing the
intent decision. The following describe some of those facts here. i. Events leading up to the adoption of SB 4, including Departures from Norma Procedure
29. It is impossible to detach SB 4 from the cultural context in which it was passed. The 2016 election both in Texas and in the United States was riddled with nativist and anti-
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Case 5:17-cv-00404-OLG Document 142 Filed 06/30/17 Page 8 of 14
immigrant appeals. For instance, then-candidate Trump repeatedly claimed that illegal immigrants were "rapists," "criminals" roaming the streets, killing people and stealing
jobs from American workers. He also publicly attacked persons of Hispanic descent, including by questioning the impartiality of a United States federal judge presiding over
a lawsuit related to Trump University.
30. Likewise, Texas lawmakers and members of the State's leadership have made racial
and xenophobic appeals in supporting laws like SB 4. In campaigns, Lieutenant Governor Dan Patrick called immigration into Texas an "invasion" and said that immigrants coming to Texas bring "third world diseases," such as leprosy. Without factual data, Patrick blamed immigrants for "a rising crime rate, overcrowded schools, an overburdened health-care system, and runaway growth in the state budget," and characterized illegal immigrants as "terrorists and drug runners." 31. Texas Legislatures have considered so-called "Sanctuary Cities" and "Show Me Your Papers" bills in several forms in past legislative cycles, but SB 4 is the first, and most extreme, anti-immigrant measure to be enacted into law in Texas. It flew through
the legislative process at an unusually fast pace, despite a chorus of public cries against
it.
32. SB 4 was filed by Senator Charles Perry on November 15, 2016, as a pre-filed bill. In Committee, the Senate State Affairs Committee held a day long committee hearing in
which hundreds of people testified in person. Despite the volume of testimony, only a few people testified in person in support of the bill.
33. On February 7, 2017, SB 4 was passed to engrossment and sent to the House. SB 4 was referred to the House Committee on State Affairs and was heard on March 15, 2017.
Again, hundreds of people testified in person against the bill. Again, only a few testified
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in favor. On April 12, 2017, the bill was voted out of the House State Affairs Committee
as substituted and sent to the Calendars Committee on April 20, 2017 at 2:22 PM. Just 48 minutes later, the bill was placed on the Emergency Calendar. 34. The House considered SB 4 on April 26, 2017. Chairman Charlie Geren was the House sponsor for SB 4. In all, the House considered 145 amendments, accompanied by emotional debate, in a session that extended until 4:30 AM on April 27, 2017.
35. The House debate contained many peculiar deviations from normal procedure. First,
several points of order were overruled that under normal operating procedures would have been sustained. This included a point of order concerning the validity of a witness affffmation, which is the same category of point of order that was sustained against a previous "sanctuary cities" bill. Second, rather than cut off debate utilizing the House
rules to move to the previous question, the House moved to have the vote for "Record Vote 456" used for all amendments that remained on the Speaker's desk. This rule suspension has not been used or adopted by the Texas House for any legislation other than bills on the local and consent calendars. This effectively cut-off debate without
meaningful consideration of any amendment numbered 76 to 145. 36. The tenor of the debate was also a major departure from the normal practices of the Texas House. The proponents of the bills used words like "illegals" to describe the targets of the legislation. Legislators were often heard laughing at the demise of
ameliorative amendments, which lead to one lawmaker commenting about the disrespectful behavior during the debate. Chairman Geren said that the bill was aimed at "bad people." Throughout debate, opposition legislators were heckled by their colleagues.
37. Also a departure from normal procedure was the consideration of the so-called
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"Schaeffer Amendment." An amendment proposed by Representative Matt Schaffer
became the turning point of the debate. The Schaeffer Amendment would re-draft the House version of the bill and return it to the language of the Senate bill in substance.
Principally, that would have permitted immigration inquiries with any lawful detention rather than only after an arrest. A deal was raised that, essentially, would have removed the Schaeffer Amendment from consideration in exchange for allowing 10-20 other
amendments to be considered, that would have been chosen by the Speaker of the House
in response to concerns that had been raised about the measure. But there never was any real deal offered, as Representative Schaeffer showed no serious inclination to remove his amendment from consideration. 38. Accordingly, in one night, SB 4 made Texas legislative history in the worst possible
way. Meaningful points of order were denied outright and not considered despite the traditional practice of the House. The bill spent less than an hour in the Calendars Committee. It was subject to a tremendous volume of negative witness testimony in both the Texas Senate and Texas House committees, all of which failed to impede its swift
progress through the legislature. The House cut-off debate by using a practice reserved only for bills on the local and consent calendar. A "deal" was offered that would have
allowed the Speaker to choose which amendments but without any serious intention of compromise. Only one amendment offered by a lawmaker of color was adopted.
39. SB 4 passed the Texas House and was sent to the Senate. The Senate concurred in
House Amendments, and the Governor signed SB 4 into law on the evening of Sunday,
May 7, 2017 in a private event not open to the media or the public. It is scheduled to become effective on September 1, 2017.
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ii. Lack of Evidence Supporting the Purported Purposes of SB 4 40. As noted above, the bill's sponsor, Chairman Geren, announced from the House floor that SB 4 was meant to uphold the rule of law and get at "bad people." He argued that SB
4 required local governments to enforce federal immigration law only to the extent it was requested by the federal government. He also said that the "Show Me Your Papers"
component of the bill applied only to people who were actually arrested and nearby
bystanders. Finally, Chairman Geren claimed the bill simply requires jurisdictions to
honor valid ICE immigration detainer requests. But each of these rationales has been disproven through the rejection of ameliorative amendments
41. First, SB 4 cannot be justified by any true concern about public safety. Amendments were rejected that targeted violent or dangerous offenders to be held pursuant to ICE detainer requests. Other amendments that would have provided training to local law enforcement concerning immigration enforcement were also rejected. Amendments that would have improved communication between immigrant communities and law enforcement were also rejected. 42. There was voluminous testimony by law enforcement officials in both the Texas House and Senate committees that SB 4 will make Texas less safe. This testimony and
evidence was rejected. Finally, the bill author and all proponents of the bill were made aware that the incidence of crime among the undocumented community was lower than
that among U.S. citizens and Legal Permanent Residents. 43. Similarly, the bill is also not about the need to police "bad" people or prevent
criminal behavior. Once the Schaeffer Amendment was adopted, the will of the House was to allow this bill to apply to anyone detained by law enforcement not just to those
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who were arrested. Accordingly, SB 4 allows police officers and campus safety officers to make national origin inquires at traffic stops and other commonplace interactions with Texas residents. In an insult to local control, it prohibits jurisdictions from adopting policies preventing this plainly dangerous, discriminatory, and unconstitutional practice. SB 4 is thus not aimed only at those for whom probable cause supports their arrest. 44. This bill also cannot be justified by the need to mandate compliance with voluntary ICE detainer requests. A floor amendment was offered that would have limited the bill by only requiring jurisdictions to honor ICE detainers. There was testimony in committee
that local jurisdictions in Texas comply with 99% of ICE detainers. Texas has been rated
the best state nationwide for adhering to ICE detainers. Chairman Geren also stated that he could not name a sanctuary city, county, or university or that did not intend to honor with ICE detainers. This bill was thus not passed to simply force compliance with ICE detainers, as such compliance is already the standard across Texas.
45. A fervent belief in the "rule of law" also cannot justify SB 4, which allows the
Attorney General (AG) to seek mandamus or injunction for entities that allegedly violate SB 4 and allows the AG to defend local entities from suits against those jurisdictions for complying with SB 4. However, despite its perfunctory language regarding nondiscrimination, SB 4 provides no authorization for the AG to enforce that non-
discrimination policy. Texas has recent and sordid history of not following federal law
with regard to voting rights, gerrymandering, environmental law, and women's health.
This bill is not about the rule of law.
46. In fact, there is no rational policy justification for SB 4. Chairman Geren admitted on
the House Floor that he did not consult any studies to justif' or inform his decision to
champion SB 4. He further stated there was no inciting event that lead to his sponsorship
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or drafting of SB 4. 47. Every single policy rationale for this bill is disproven by the rejection of ameliorative
amendments and on-point witness testimony. Without a doubt, the policy rationales for this bill are pre-textual and belie a sub-rational, impermissible purpose based in racial or national origin animus.
iii. Disparate Impact 48. Chairman Geren on the House floor admitted that most immigrants in Texas are of Hispanic origin. He also admitted that ICE detainers are not always valid. 49. In Texas, invalid ICE detainers and unlawful detentions unequally affect Mexicans, Mexican Americans, and those of Hispanic descent more broadly. SB 4, as signed into law, allows unconstitutional intrusions into the rights of these individuals based on racial and national origin animus.
V. DECLARATORY JUDGMENT 50. In the alternative, county elected official's adherence to the existing county's adopted policies in relation to federal immigration enforcement comply with SB 4. 51. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 52. Plaintiffs have no adequate remedy at law. 53. Absent declaratory relief, Plaintiffs will continue to be harmed.
VI. PRAYER FOR RELIEF 54. WHEREFORE, Plaintiffs pray that the Court grant the following relief:
1) Declare SB 4 unconstitutional and invalid on its face;
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2) Enjoin Defendants from enforcing SB 4; 3) In the alternative, declare that county officials and their policies comply with state law, including SB 4; 4) Award Plaintiffs court costs and reasonable attorneys' fees and grant any other relief to plaintiff as allowed by law and that the Court should deem fit.

Dated: June22, 2017.

Respectfully Submitted,
LAW OFFICES OF ROLANDO L. RIOS 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Ph:
(210) 222-2102 Fax: (210) 222-2898 E-mail:rrios@rolandorioslaw.com
Attorney for the TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND
LoNGOs COUNTY COMMISSIONERS and MARIA

Rolando L. Rios SBN 1693500 Attorney in charge

 
 Case 5:17-cv-00404-OLG Document 71 Filed 06/21/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ MOTION TO DISMISS OR TRANSFER THE CITY OF AUSTIN’S COMPLAINT IN INTERVENTION (ECF NO. 37)

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On June 20, 2017, the Court granted the City of Austin’s Motion to Intervene. ECF No. 68. Texas now moves, pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, for this Court to dismiss the City’s Complaint in Intervention (ECF No. 37) or transfer it for consolidation with a related, first-filed matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS, in which the City of Austin is a named defendant.1 The City of Austin is located within the Austin Division, has no connection to the San Antonio Division, and alleges that the actions that form the basis of its claims occurred within the confines of the Austin Division. See ECF No. 37 ¶¶ 13–20, 29–30; 28 U.S.C. § 124(d)(1). Venue is thus improper in the San Antonio Division.
In further support of this Motion, Texas incorporates by reference the arguments and authorities raised in its Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases, ECF No. 32-1, and requests that the City of Austin’s claims be dismissed, or alternatively, transferred to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.2
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is aware of the Court’s order but files this Motion to ensure that there is a responsive pleading to the City’s operative complaint on file. Moreover, Texas asserts that this case should be dismissed or transferred regardless of the outcome of the Austin Division case.
2 Courts within the Fifth Circuit have routinely accepted and addressed the merits of arguments that have been incorporated by reference to earlier-filed motions. See, e.g., Chaverri v. Dole Food Co., Inc., 2012 WL 2087409, at *3 (E.D. La. June 8, 2012) (noting that it was sensible for the defendant to incorporate by reference arguments raised in earlier motions to dismiss because the defendant raised many of the same arguments in those earlier motions); Phoenix Licensing L.L.C. v. CenturyLink Inc., 2015 WL 5786582, at *1 (E.D. Tex. Sept. 30, 2015). Indeed, in Travis County’s reply brief in support of its motion for intervene, the County incorporates by reference its earlier briefing in this case and its briefing in the Austin litigation. See ECF No. 47 at 1–2.
2

Case 5:17-cv-00404-OLG Document 71 Filed 06/21/17 Page 3 of 4
Respectfully submitted this the 21st day of June, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
3

Case 5:17-cv-00404-OLG Document 71 Filed 06/21/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 21st day of June, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
4

 
 Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 1 of 8

F L.ED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DiVISION

2011 JUN 22 AM II: 20

......

.

CITY OF EL CENIZO, et.al.
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY in his official capacity; and the TEXAS ORGANIZING PROJECT EDUCATION FUND,
Plaintffs,

Civil Action No.5: l71 (Lead Case) Case No. 5:17-CV-00459-OLG Consolidated

TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS,
Proposed Plaintff/Intervenor

V. STATE OF TEXAS
Defendants,

PLAINTIFF-INTERVENOR TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, MOTION AND MEMORANDUM IN
SUPPORT OF INTERVENTION

1.

This action raises federal questions under the United States Constitution,

particularly Article 1, and the First, Fourth, Fourteenth Amendments. In addition, this Court

has jurisdiction over these constitutional claims pursuant to 42 U.S.C. § 1983.

2.

This action is brought pursuant to the Fourteenth and Fifteenth Amendments

to the United States Constitution, 42 U.S.C. § 1983. This is also an action requesting
declaratory and injunctive relief against the State of Texas to challenge Senate Bill 4 of 2017

("SB 4").

3.

Pursuant to Federal Rule of Civil Procedure ("Fed. R Civ. P.") 24(a)(2),

the TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 2 of 8

COIvIIvIISSIONERS (the "HJ&C," or "Hispanic Judges and Commissioners") ("Proposed Planitiff-Intervenors") by and through their undersigned counsel, respectfully request that
this Court grant their Motion to Intervene as of right as Plaintiff-Intervenors. In the
alternative, Proposed Plaintiff-Intervenors request that this Court grant permissive intervention under Fed. R. Civ. P. 24(b)(1)'
4. Plaintiff-Intervenor TEXAS ASSOCIATION OF HISPANIC COUNTY
JUDGES AND COUNTY COMMISSIONERS is an association of Hispanic elected county

officials and seeks intervention to protect their interest in conducting their duties as elected

county officials. The HJ&C request for intervention meets all the prerequisites for intervention

as a matter of right: the request for intervention is timely; the rights at stake are directly implicated by claims of the Plaintiffs; it cannot effectively protect its interest unless it is part of

this action.

5.

Plaintiff-Intervenors includes members from South Texas Counties in which

over 80% of the population are Latinos who are protected by the United States Constitution,

Fourteenth and Fifteenth Amendments to the United States Constitution, and 42 U.S.C. §
1983. This intervention is his behalf of Hispanics of South Texas. SB 4 will have a

discriminatory effect on South Texas Counties and their elected officials where over 80% of

the population is Latino and whose constitutional rights are implicated.

6. The HJ&C is unique in that it represents most of the Latino Texas Counties

including Hidalgo, Cameron, Frio, Webb, LaSalle, Star, Zapata, Zavala Maverick Val Verde

and El Paso; SB 4 will impact these counties dramatically.

7. County government is charged with conducting public policy addressed by

'Plaintiff-Intervenor' Complaint in Intervention, which sets forth the claims upon which intervention is sought, is filed simultaneously with this Motion.
2

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 3 of 8
SB4; these Proposed Intervenors HJ&C will be impacted uniquely by SB4 and will be able to assist this Court in establishing relevant facts to apply to existing immigration law.
Procedural Posture 8. This case was only recently filed and no discovery or hearings have been held. As far as we can tell no answer has yet been filed. Intervention at this early stage of the litigation will not unduly delay or prejudice the adjudication of any rights of the original parties Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994); see Trans Chem. Ltd. v. China Nat '1 Mach. Imp. &Exp. Corp., 332 F.3d 815, 822 (5thCir. 2003).
Potential Impact of this Litigation
9. Historically, Texas has been found to pass legislation to discriminate against Latinos, See: White v. Register, 412 U.S. 755 (1973); Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex. 1982); TexasUnited States, 785 F. Supp. 201 (D.D.C. 1992); LULAC v. Perry, 548 U.S.
399 (2006); Bush v. Vera, 517 U.S. 952, 98 1-82 (1966)Q,lurality opinion). 2 If allowed to
intervene, Intervenor will be able to protect the specific interest at stake for South Texas
Counties; South Texas Counties have a high concentration of Latino voters and SB14 is designed to lessen the influence of South Texas Counties in statewide elections. Also in Texas, 888 F. Supp. 2d at 113, a three-judge panel in the District of D.C. denied preclearance of a
Texas State Statute under Section 5 of the Voting Rights Act.
2Federal intervention has been necessary to eliminate numerous devices intentionally used discriminate against Latinos in Texas. See, e.g., White, 412 U.S. at 768 (poll tax); Terry v. Adams, 345 U.S. 461 (1953) (private primary); Smith v. Allwright, 321 U.S. 649 (1944) (white primary); Nixon v. Herndon, 273 U.S. 536 (1927) (exclusion of minorities)
3

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 4 of 8
ARGUMENT I. Intervention Is Proper as a Matter of Right
HJ&C request intervention as a matter of right under Federal Rule of Civil Procedure 24 (a). Intervention as of right should be granted when the following four requirements are met:
(1) the applicant for intervention is timely; (2) the applicant has an interest to the property or
transaction that is the subject of the action; (3) the applicant is so situated that the disposition of
the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant's interests are inadequately represented by the existing parties to the suit. New Orleans Public Service, Inc. v. United Gas and Pipe Line Co., 732 F.2d 452, 463 (5th Cir.
1984)(en banc). Intervention as a matter of right involves a "flexible" inquiry, "which focuses
on the particular facts and circumstances surrounding each application [for intervention]".
Edwards v. City of Houston, 78 F.3d 983, 999 (5thCir. 1996) (internal quotation marks, ellipses, and brackets omitted). Accordingly, "intervention of right must be measured by a practical
rather than technical yardstick." Id. Federal courts have emphasized that Fed. R. Civ. P. 24's intervention requirements
should be construed flexibly and in favor of intervention. United States v. Perry Cnty. Rd. Of
Educ., 567 F.2d 277, 279 (5th Cir. 1978) ("Our inquiry is a flexible one, which focuses on the particular facts and circumstances surrounding each application . . . .") (internal citation and quotation marks omitted); McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970) ("[Fed. R. Civ. P. 24(a)] has its permissive aspects, and . . . we must view its exercise in the liberal atmosphere of the Rules of Civil Procedure. . . ."); Diaz v. S. Drilling Coip., 427 F.2d 1118, 1126 (5th Cir. 1970) ("[T]he possibility of prejudice [in an untimely filing] is to be evaluated against the liberal treatment that is to be accorded applications for intervention of right. . . ."); see also Turn Key Gaming, Inc. v. Oglala Sioux
4

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 5 of 8
Tribe, 164 F.3d 1080, 1081 (8th Cir. 1999) ("Rule 24 is to be construed liberally, and doubts resolved in favor of the proposed intervenor."); Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994) (Federal court should allow intervention where no one would be hurt and greater justice could be attained."). (internal citation and quotation omitted).
A. The Intervention is Timely This intervention is timely because it acted with all practicable speed after it learned that the Plaintiffs had filed this action. No hearings have been held nor has any discovery been conducted. Timeliness is a flexible requirement that varies from case to case. See McDonald v. E.J. Lavino Co. 430 F.2d 1065, 1074 (5th Cir. 1970). Thus "[t]imeliness of intervention depends on a review of all the circumstances, and the Fifth Circuit has identified four factors to consider: (1) the length of time the intervenor knew or should have known of his interest in the case; (2) prejudice to the existing parties resulting from intervenor's failure to apply for intervention sooner; (3) prejudice to the intervenor if his application for intervention is denied; (4) the existence of unusual circumstances." Trans Chemical Ltd. v. China Nat. Machinery Import & Export Co., 332 F3d 815, 822 (5th Cir. 2003). Under any standard previously articulated by the Courts, this Motion to Intervene is timely. After receiving notice of the action Intervenor moved to review the pleadings, confer with the attorney for the Plaintiffs.
B. Intervention Will Not Prejudice the Plaintiffs The Plaintiffs will not suffer any prejudice as a result of the request for intervention. The lawsuit was only recently filed. No answers or discovery have yet been filed. No motions or hearing have yet been heard in this case. The case is at its inception.
C. Intervenor Will Suffer Significant Prejudice If Intervention is Denied Intervenor could well suffer significant harm if intervention is not permitted. The allegations of
the Plaintiffs implicate the Civil Rights of Latinos. The allegations relate the bedrock of Constitutional Rights. The proposed Intervenors in this case are members of Association of Hispanic Judges and Commissioners whose duties as elected officials will suffer greatly if SB4 is implemented.
5

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 6 of 8
D. Interest of the Intervenor
E.
Because of the impending enforcement of SB4, this case must be tried on an extremely expedited basis. Important distinctions in the interests of the elected officials and the Hispanic electorate could
become a very serious problem later in the litigation and intervention at that point would necessarily delay
the litigation and prejudice the rights of the Intervenor. Unless intervention is granted the Intervenor will be substantially impaired in the ability to insure that the harms of SB4 are vitiated.
E. Unusual Circumstances Exist that Would Militate Against Intervention. Proposed Intervenors knows of no circumstances that would operate to work against its intervention.
F. Proposed Intervenors Have a Substantial and Legally Protected Interests in the Case That It Cannot Protect Without Intervention and Is Inadequately Protected by the Named Plaintiffs
Proposed Intervenors have a substantial and legally protected interest that the law recognizes in the matters raised by this action. The Courts have recognized that state laws can be fashioned to
compromise the constitutional rights of Latinos. See LULAC v. Periy, 548 U.S. 399 (2006). The history of racial discrimination in the State of Texas in the past four decades allow intervention where no one would
be hurt and greater justice could be attained. ) (internal citation and quotation omitted). Texas statutes have often been struck down by federal courts because they have been found violate the Fourteenth Amendment to the US Constitution and various other Federal Civil Rights statutes including 42 USC Sec. 1983. See e.g. . White v. Register, 412 U.S.755 (1973); Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex. 1982); Texas v. United States, 785 F. Supp. 201 (D.D.C. 1992); LULAC v. Perry, 548 U.S. 399 (2006).

Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 7 of 8
II. ALTERNATIVELY, INTERVENOR SHOULD BE ALLOWED TO PERMISSiVELY INTERVENE

Alternatively, the Proposed Intervenors satisfies the requirements for this Court to permit
intervention. Permissive intervention, which is a matter of discretion for the Court, is appropriate when

the intervention is timely, the intervenor's "claim or defense and the main action have a question of law or

fact in common," and granting the intervention will not unduly delay or prejudice the original parties in the

case. Fed. R. Civ. P. 24(b)(2).

As discussed above, this intervention is timely. The Claims of the Proposed Intervenors have

common questions of law and fact. The State of Texas has acted often contrary to the interests of Latinos.

In the past four decades the Federal Court has stood at this important litigation juncture. In each event, the
Intervention of Latino named individuals and Hispanic elected officials such as Proposed Intevenors have

been allowed.

PRAYER

Plaintiff respectfully prays that this Court enter Judgment granting this Intervention and allow TEXAS

ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS to fully

participate in this litigation.

DATED: June 22, 2017

Respectfully Submitted,

ROLANDO L. RIOS 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Ph: (210)222-2102 Fax: (210) 222-2898 E-mail:rios@sbcglobal.net

EJOS

ROLANDO L. lbS
Attorney for the TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS

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Case 5:17-cv-00404-OLG Document 80 Filed 06/22/17 Page 8 of 8
I hereby certify that all the parties to this Cause have been notified of i Proposed Intervention
through the electronic filing system used by the federal courts. I Rolan o L. Rios
Ro ando L. Rios

 
 Case 5:17-cv-00404-OLG Document 144 Filed 07/08/17 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et.al.

§

§

EL PASO COUNTY; RICHARD WILES,

§

SHERIFF OF EL PASO COUNTY in his official §

capacity; and the TEXAS ORGANIZING

§

PROJECT EDUCATION FUND,

§

Plaintiffs,

§

§

TEXAS ASSOCIATION OF HISPANIC

§

COUNTY JUDGES AND COUNTY

§

COMMISSIONERS,

§

Proposed Plaintiff/Intervenor

§

§

V.

§

STATE OF TEXAS

§

Defendants,

§

Civil Action No. 5:17-CV-00404-OLG (Lead Case) Case No. 5:17-CV-00459-OLG Consolidated

PLAINTIFF-INTERVENOR TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS POST HEARING BRIEF
______________________________________________________________________________ The Texas Association of Hispanic County Judges and County Commissioners (HJ&C) is
an association of elected officials from counties throughout Texas. We have members from counties as diverse as Zapata County in the border area and Midland County, in West Texas. Some of our counties have high concentrations of noncitizen population; some of our counties have populations with racial attitudes that SB 4 could be used as a tool to harass the Latino population. Moreover, when local residents are afraid of being reported, detained, or deported by local law enforcement, they are less likely to report crimes against them and are afraid to cooperate with police in criminal investigations. SB 4 applies to all 254 counties in Texas; every county in Texas has four (4) elected county commissioners and an elected county judge – all are
1

Case 5:17-cv-00404-OLG Document 144 Filed 07/08/17 Page 2 of 6
subject to removal if they violate SB 4. RACIAL ANIMUS LEADING TO PASSAGE OF SB 4
It is impossible to detach SB 4 from the cultural context in which it was passed; the perniciousness and insidious potential harm unleashed by SB 4 can only be understood in the context of the recent political winds whirling across the country. The 2016 election both in Texas and in the United States was riddled with nativist and anti-immigrant appeals. For instance, then-candidate Trump repeatedly claimed that illegal immigrants were “rapists,” “criminals” roaming the streets, killing people and stealing jobs from American workers. He also publicly attacked persons of Hispanic descent, including by questioning the impartiality of a United States federal judge presiding over a lawsuit related to Trump University.
Likewise, Texas lawmakers and members of the State’s leadership have made racial and xenophobic appeals in supporting laws like SB 4. In campaigns, Lieutenant Governor Dan Patrick called immigration into Texas an “invasion” and said that immigrants coming to Texas bring “third world diseases,” such as leprosy. Without factual data, Patrick blamed immigrants for “a rising crime rate, overcrowded schools, an overburdened health-care system, and runaway growth in the state budget,” and characterized illegal immigrants as “terrorists and drug runners.”
Texas Legislatures have considered so-called “Sanctuary Cities” and “Show Me Your Papers” bills in several forms in past legislative cycles, but SB 4 is the first, and most extreme, anti-immigrant measure to be enacted into law in Texas. It flew through the legislative process at an unusually fast pace, despite a chorus of public cries against it.
SB 4 was filed by Senator Charles Perry on November 15, 2016, as a pre-filed bill. In
2

Case 5:17-cv-00404-OLG Document 144 Filed 07/08/17 Page 3 of 6
Committee, the Senate State Affairs Committee held a day long committee hearing in which hundreds of people testified in person. Despite the volume of testimony, only a few people testified in person in support of the bill.
On February 7, 2017, SB 4 was passed to engrossment and sent to the House. SB 4 was referred to the House Committee on State Affairs and was heard on March 15, 2017. Again, hundreds of people testified in person against the bill. Again, only a few testified in favor. On April 12, 2017, the bill was voted out of the House State Affairs Committee as substituted and sent to the Calendars Committee on April 20, 2017 at 2:22 PM. Just 48 minutes later, the bill was placed on the Emergency Calendar.
The House considered SB 4 on April 26, 2017. Chairman Charlie Geren was the House sponsor for SB 4. In all, the House considered 145 amendments, accompanied by emotional debate, in a session that extended until 4:30 AM on April 27, 2017.
THE ACT AND PREEMPTION States cannot properly evaluate the international implication of the sovereign interests of
the United States.
I. INJUNCTIVE RELIEF:
SB 4 was enacted for the “enforcement by campus police departments and certain local governmental entities of state and federal laws governing immigration and to related duties and liability of certain persons in the criminal justice system; providing a civil penalty; creating a criminal offense.” (Dkt #77-2 p 2) [ Emphasis added] Moreover, SB 4 makes the failure of a jail official to honor any detainer request a Class A misdemeanor, even when doing so would, in the view of the Detention Center officials, violate the Fourth Amendment. Tex. Penal Code §39.07. A misdemeanor exposes employees of the Detention Center to arrest, a jail term of up
3

Case 5:17-cv-00404-OLG Document 144 Filed 07/08/17 Page 4 of 6
to one year and a fine of up to $4,000. Texas Penal Code § 12.21. Furthermore, SB 4 exposes the City, its Detention Center and employees to penalties under Section 752.056, and officials could face removal from elected or appointed office. Tex. Gov't Code §752.0565.
A determination by this Court that federal law preempts passage of SB 4 will, in effect, cover the requirements for this Court to issue preliminary injunctive relief. 1 A finding of preemption by this Court will meet all the requirement for preliminary injunctive relief. A finding of preemption means that SB4 is a nullity, it is “void”2; by definition and a clear reading of SB 4, it encroaches on an area of law left exclusively to the federal government; therefore, by definition SB 4 meets the likelihood of “success”, “injury”, and “public interest” criteria justifying preliminary injunctive relief.
II. PREEMPTION
The familiar and fundamental frameworks for assessing conflicts between federal and state power are the Supremacy Clause of the Constitution and the corresponding doctrine of preemption. Preemption of state law comes in three forms: field preemption, whereby federal authority implicitly occupies an entire area; express congressional preemption by statute; and conflict preemption, which occurs when state and federal laws impose conflicting duties, especially when those conflicts are irreconcilable. Immigration falls within the first form – federal authority implicitly occupies the entire area.
When it comes to immigration law, even when considered in light of states police
1 A plaintiff seeking a preliminary injunction must establish: (1) a substantial likelihood of success on the
merits, (2) a substantial threat of irreparable injury if the injunction is not issued (3) that the threatened
injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Id. Preliminary injunctions favor the status quo and preserve the relative positions of the parties until a trial on the merits can be held. Wenner v. Tex. Lottery Comm'n, 123 F.3d 321,326 (5th Cir. 1997); Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). 2 [W]henever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States, Henderson, 92 U.S., at 271-72
4

Case 5:17-cv-00404-OLG Document 144 Filed 07/08/17 Page 5 of 6
powers:
“no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution. . . . [W]henever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States. Henderson v. Mayor of N.Y.,, 92 U.S.259 at 271-72
Federal control over immigration is granted by the Constitution’s provisions that
explicitly authorize Congress to regulate interstate commerce3, to establish a ‘Uniform Rule of
Naturalization,” 4 and to conduct foreign affairs.5 Clearly, federal immigration policy has
international implications that can only be assessed by the federal government; because of their
limited view and interests, states are not capable of evaluating the international impact of federal
immigration policy. According to the Henderson Court’s reasoning, immigration “belongs to that class
of laws which concern the exterior relation of this whole nation with other nations and governments,”6
State “classifications based on alienage,” the Court has said, “are inherently suspect and
subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372 (1971)
invalidating an Arizona law that restricted legal aliens’ access to benefits). “The laws which
govern the right to land passengers in the United States . . . ought to be the same in New York,
Boston, New Orleans, and San Francisco.” Henderson, 92 U.S. at 273.
3 U.S. CONST. art. I, § 8, cl. 3; The Head Money Cases, 112 U.S. 580, 599 (1884) (“Congress [has] the power to pass a law regulating immigration as a part of commerce of this country with foreign nations . . . .”). 4 U.S. CONST. art. I, § 8, cl. 4. The power is also recognized by implication in Article V, which prohibited, until 1808, amendment of the provision of Article I that denies Congress the authority to prohibit the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” id. art. I, § 9, cl. 1. That is, but for the prohibition before 1808, Congress may prohibit the migration or importation of certain persons. 5 See U.S. CONST. art. I, § 8, cl. 3 (granting Congress the power “[t]o regulate Commerce with foreign Nations”); Toll v. Moreno, 458 U.S. 1, 10 (1982) (holding that federal authority to regulate the status of aliens arises out of the constitutional power to regulate commerce with foreign nations, the broad authority over foreign affairs, and the power to establish a uniform rule of naturalization). Because the foreign-affairs power is at least partly in the hands of the president, some authority exists for the notion that the president has some inherent power in the immigration context. See infra Part III.B.
6 Henderson, 92 U.S. at 268.
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SB 4 does the complete opposite of what Graham and Henderson dictate: it creates a whole new structure for state officials to interpret, apply and enforce immigration law that may be completely at odds with what is done in the other 49 states. Clearly, SB 4 and the policies it is attempting to propagate are completely preempted by the United States Immigration laws and the United States Constitution.
III. CONCLUSION Given the strong body of federal law on preemption concerning immigration matters, this Court should immediately issue a preliminary injunction; there is no reason to delay the striking down of a state law that is clearly not within the authority of Texas to enact.

DATED: July 8, 2017 Ph:

Respectfully Submitted,
ROLANDO L. RIOS 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Ph (210) 222-2102 Fax: (210) 222-2898 E-mail:rios@sbcglobal.net LAW OFFICES OF ROLANDO L. RIOS

By: /s/ Rolando Rios ROLANDO L. RIOS Attorney for the TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS

CERTIFICATE OF SERVICE
I hereby certify that all the parties to this Cause have been notified of this Post Hearing Brief through the electronic filing system used by the federal courts.
/s/ Rolando L. Rios_ Rolando L. Rios

6

 
 Case 5:17-cv-00404-OLG Document 146 Filed 07/10/17 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al.; §

Plaintiffs,

§

§

CITY OF AUSTIN, et al.,

§

Plaintiff-Intervenors,

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404-OLG

CITY OF AUSTIN’S POST-HEARING BRIEF IN SUPPORT OF INJUNCTIVE RELIEF

TO THE HONORABLE JUDGE ORLANDO L. GARCIA:

The City of Austin (“Austin”) files this post-hearing brief in support of its motion for

preliminary injunction (Doc. 57) to discuss (1) the relevance of the uncontested evidentiary record

to showing plaintiffs’ likelihood of success on the merits and (2) how Texas’ evidence reveals

Fourth Amendment deficiencies in the “show me your papers” provision of SB 4.

ARGUMENT

I. Uncontested Evidence Demonstrates that Plaintiffs are Likely to Succeed on the Merits and Injunctive Relief is Necessary to Prevent Imminent Harm

Generally, to obtain injunctive relief, plaintiffs and plaintiff-intervenors (collectively,

“plaintiffs”) must show a likelihood of success on the merits; a threat of irreparable harm; that the

balance of equities tips in their favor; and that injunctive relief would serve the public interest.

Winter v. NRDC, 555 U.S. 7, 20 (2008). In regard to their Supremacy Clause claims, however,

plaintiffs need only show a likelihood of success on the merits. See Tex. Midstream Gas Servs.,

LLC v. City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010).

Through written submissions and witness testimony, plaintiffs established a robust record

including evidence that SB 4 will likely cause economic and social harm. The State made

Case 5:17-cv-00404-OLG Document 146 Filed 07/10/17 Page 2 of 9
objections to relevance, and at the hearing attempted to limit witness testimony; Texas did not present contrary evidence, however. The undisputed factual record supports plaintiffs’ claims under the Supremacy Clause as well as Austin’s home rule claim under the Texas Constitution.
A. SB 4’s likely negative impact on U.S. economic and diplomatic interests demonstrates the necessity of field preemption.
In Arizona v. U.S., the Court explained why federal authority preempts state action in the field of immigration:
Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. Arizona v. U.S., 132 S.Ct. 2492, 2498 (2012) (citations omitted). These national concerns, in addition to local public safety concerns, provide “the background” for formal preemption analysis. Id. at 2500. In Arizona, the Court considered threatened economic impacts identified by Argentina and other foreign nations, as well as diplomatic concerns identified by former Secretary of State Madeleine Albright. Id. at 2498. Here, plaintiffs have established a record of likely negative economic impacts as well as negative social impacts for foreign nationals residing within the United States. In regard to economic impacts, plaintiffs presented evidence of likely harm including: (1) cancellation of and diminished participation in major events, with resulting economic losses; (2) loss of clients and employees for local businesses; (3) labor shortages across major industries including agriculture and construction; (4) lower student attendance and academic achievement at public schools, leading to losses of funding based upon student attendance; (5) and an overall perception that Texas is anti-immigrant, which will discourage business relocation and
2

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development, scare away national conventions, suppress consumer spending, weaken student
enrollment at public universities, and hamper economic development.1
In regard to diplomatic impacts, plaintiffs presented evidence that foreign nationals in
Texas will likely be denied access to essential public services, including (1) health care, (2)
education, (3) housing, and (4) police protection.2 Austin also presented evidence that foreign
nationals will be denied the ability to practice their chosen religion.3 Finally, plaintiffs presented
evidence that SB 4 would penalize foreign nationals who are present in the United States pursuant
to the trilateral NAFTA treaty, in direct contradiction to the will of Congress.4 See Crosby v. NFTC,
530 U.S. 363, 378 (2000) (state immigration law violated Supremacy Clause by “penalizing
individuals and conduct that Congress has explicitly exempted or excluded from sanctions”).
This evidence supports plaintiffs’ argument that the field of immigration is preempted by
federal authority due to the national interests at stake, including the vitality of the national economy
and the proper treatment of foreign nationals within U.S. borders.5
1 P-416 (harm to SXSW international festival) and P-417 (cancellation of major convention in Grapevine, Texas); P-407 (loss of restaurant’s customers and employees); P-317 (expert opinion concerning likely labor shortages); P-410, P-411 and P-423 ¶¶ 36-55 (decreased student attendance leading to loss of public funding for schools); P-429 (expert opinion concerning negative economic impacts due to perception that Texas is anti-immigrant). 2 P-404 (mixed status family cannot take child to doctor), P-405 (denial of access to medical clinic), P-426 (same), 427 (same), P-406 (denial of access to violence prevention counseling and support), P-424 ¶¶ 6-35 (denial of access to WIC services), P-425 (same); P-402 (parents cannot participate in child’s school), P-403 (same), P-428 (foreign national teachers and students are impacted), P410 and P-411 (students denied access to high-performing school), and P-423 ¶¶ 36-55 (students denied access to school during immigration enforcement actions); P-408 (denial of decent housing); P-412 (denial of police services), P-403 (same). 3 P-414 (foreign national parishioners denied access to place of worship) 4 P-1 ¶¶ 49-50 (local officers are not trained to understand NAFTA treaty status). 5 The Department of Justice argued at hearing that the Executive Branch supports Texas’ enactment of SB 4, but the Administration cannot delegate authority it does not have. Congress is responsible for enacting the Immigration and Nationality Act, including the carefully calibrated treatment of foreign nationals who reside in the United States. Further, only Congress has ratified
3

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B. The record shows how SB 4 conflicts with the First, Fourth, and Fourteenth Amendments of the U.S. Constitution.
“[A] political subdivision has standing to bring a constitutional claim against its creating state when the substance of its claim relies on the Supremacy Clause and a putatively controlling federal law.” Branson School Dist. RE-82 v. Romer, 161 F.3d 619, 628 (10th Cir. 1998); see also Rogers v. Brockette, 588 F.2d 1057, 1069-1071 (5th Cir. 1979).
Here, Austin argues that SB 4 would impede the First Amendment-protected conduct of its officials and would require local police to conduct immigration inquiries in violation of the 4th Amendment and Equal Protection. Because SB 4 directly conflicts with controlling federal law embodied in these constitutional amendments, Austin may sue Texas under the Supremacy Clause.
Local officials possess the First Amendment right to speech as part of their formulation of public policy. Bond v. Floyd, 385 U.S. 116, 136 (1966). Here, the undisputed record establishes how SB 4 will inhibit the policy-making activities of local officials, and thus injure plaintiffs such as Austin, San Antonio, and Bexar County.6 In regard to conflicts with the Fourth and Fourteenth Amendments, Austin presented evidence showing how SB 4’s reliance on state identification as proof of lawful status will lead to unreasonable detention and discrimination against Hispanic residents.7 Co-plaintiffs also presented substantial and compelling evidence for these claims.8
treaties that are impacted by SB 4 enforcement, such as NAFTA. Accordingly, counsel for the United States has no authority to “delegate” immigration powers to Texas. 6 P-401 (Austin council member’s policy objections to SB 4), P-409 (same), P-412 (Austin mayor’s policy objections to SB 4); see also P-305 (San Antonio council member’s policy objections to SB 4); Transcript of Preliminary Injunction Hearing at 208-230 (Bexar County judge’s policy objections to SB 4). 7 P-415 (expert report showing that (1) many lawful residents are unable to acquire state identification and (2) driver’s license requirements negatively and disproportionately impact Hispanic and African-American Texans). 8 See, e.g., P-202 (discrimination in the legislative process), P-203 (same), P-301 through P-302 (same).
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Based upon this record, the Court should find that SB 4 is preempted by the First, Fourth, and Fourteenth Amendments to the Constitution.
C. The record shows how SB 4 violates the Home Rule Amendment of the Texas Constitution by withdrawing local control over police while failing to advance any legitimate state interest.
Texas is not authorized to pass SB 4 unless it can show that the law is “reasonably related to public health and welfare” as a “valid exercise of the police power.” See Gibson Distrib, Inc. v. Downtown Develop. Ass’n of El Paso, Inc., 572 S.W.2d 334, 335 (Tex. 1978). The overwhelming and undisputed evidence shows that SB 4 will make Texas less safe, however.
Texas provides no direct evidence that SB 4 will make the State safer. Rather, the State cites to statistics that unauthorized immigrants have committed crimes while present in Texas. See Doc. 91 at 110. Crucially, the State makes no effort to show that SB 4 will improve the crime rate.9
On the other hand, Austin and its co-plaintiffs have provided ample evidence that SB 4 will make Texas less safe. Victims of crime will not come forward to testify, and will not take advantage of available support services; witnesses will not cooperate; and successful community policing strategies will be sabotaged due to a breakdown in public trust.10 Austin’s expert conducted a statistical analysis of every so-called “sanctuary” county identified by the Department of Homeland Security, and found that the “sanctuaries” were safer than the others.11
9 In fact, an Immigration and Customs Enforcement (ICE) memorandum dated February 21, 2017 (which was recently released in response to a public information request), indicates that criminal conduct is not the focus of immigration enforcement. See “ICE Officers Told to Take Action Against All Undocumented Immigrants Encountered While on Duty,” https://www.propublica.org/article/ice-officers-told-to-take-action-against-all-undocumentedimmigrants (last accessed July 10, 2017). Austin asks the Court to take judicial notice of the February 21, 2017 memorandum, a true copy of which is attached as Exhibit 1. 10 P-413 ¶¶ 8-9; P-406; P-412; P-303. 11 P-423 ¶¶ 56-64 and Hearing Transcript at 189:9-191:10.
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In sum, the plaintiffs’ evidence undisputed shows that Texas cannot substantiate any legitimate governmental interest that supports enactment of SB 4. Accordingly, Austin is likely to prevail on its Home Rule claim, and the Court should enjoin enforcement of SB 4.
II. Texas’ Evidence Reveals Fourth Amendment Deficiencies in SB 4’s “Show Me Your Papers” Provision
By its letter, SB 4 will, with limited exceptions for crime victims or witnesses, prohibit Austin from enacting any policies (formal or informal) that prohibit or materially limit its police officers from inquiring into a lawful detainee’s or arrestee’s immigration status. TEX. GOV’T CODE § 752.051(4); TEX. CODE OF CRIM. PROC., ART. 2.13(d), (e). This provision will effectively prevent Austin—along with every other Texas city, county, and police force at an institution of higher education—from enacting policies that would permit officers to inquire into a detainee’s immigration status only when there is reasonable suspicion to do so. In the absence of such a policy, Austin police officers will inevitably violate the Fourth Amendment rights of citizens when they, for example, unreasonably prolong a Terry stop for the sole purpose of inquiring into an assault suspect’s immigration status without any reasonable basis to do so. See Arizona, 132 S.Ct. at 2509 (“Detaining individuals solely to verify their immigration status would raise constitutional concerns”). Therefore, SB 4 is constitutionally flawed and, if it is allowed to go into effect, Texas counties and cities will pay the price.
This inherent flaw of SB 4 becomes even more apparent in light of the evidence introduced by Texas at the preliminary injunction hearing. In support of its opposition, Texas introduced the declarations of Steven McGraw, the Director of the Texas Department of Public Safety (DPS); Bill E. Waybourn, Sheriff of Tarrant County, Texas; and Rand Henderson, Sheriff of Montgomery
6

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County, Texas.12 In similar declarations, each law enforcement official states that officers they manage may inquire into a detainee’s immigration status only when doing so is based on reasonable suspicion that the detainee is in the country without lawful status.13 Moreover, the McGraw Declaration includes an excerpt from DPS policy. DPS policy 98.03 provides that DPS officers will inquire into a detainee’s immigration status when, in the course of investigating the underlying state law offense, the officer develops suspicion that the detainee does not have lawful immigration status.14
This evidence is remarkable not because it violates any constitutional or policing norms. To the contrary, these policies or statements seem to comport with the basic Fourth Amendment requirement that police officers cannot detain a person, or prolong that detention, without reasonable suspicion. See, e.g., United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). Instead, what makes these policies and statements illustrative is that local law enforcement officials (including Sheriffs Waybourn and Henderson) actually would violate SB 4 by requiring their officers to develop reasonable suspicion that a detainee might be undocumented before inquiring into the detainee’s immigration status.15
The DPS policy, and the practice described by Sheriffs Waybourn and Henderson, violates SB 4 because it places a “material limit” on when officers can inquire into a detainee’s immigration
12 D-1 (McGraw Dec.); D-5 (Waybourn Dec.); D-7 (Henderson Dec.). 13 D-1, ¶ 13; D-5, ¶ 9; D-7, ¶ 9. The McGraw Declaration refers to detainees, whereas Sheriffs Waybourn and Henderson refer to persons. Presumably, any peace officer is permitted, during a consensual encounter, to inquire into any person’s immigration status for any reason. This is because a strictly consensual encounter would not implicate the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991). SB 4 is concerned with detainees. Accordingly, Austin presumes that Sheriffs Waybourn and Henderson are speaking, at least in part, as to how their deputies might question detainees. 14 D-1, Ex. 3. 15 Of course, DPS is not a “local entity” covered by SB 4. But if its policy were to adopted by a local entity, that policy would violate SB 4.
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Case 5:17-cv-00404-OLG Document 146 Filed 07/10/17 Page 8 of 9
status. Specifically, under the policy, an officer may make the inquiry (and thereby prolong the detention) only when the officer has a reasonable suspicion that the detainee has unlawful immigration status. On the other hand, SB 4 provides that law enforcement agencies will violate SB 4 when they prohibit or materially limit officers from inquiring into the immigration status of any lawful detainee (save victims or witnesses). TEX. GOV’T CODE § 752.051(4); TEX. CODE OF CRIM. PROC. ART. 2.13(d),(e).
This analysis demonstrates that Texas law enforcement agencies will not be able to comply with SB 4 without their officers inevitably running afoul of the Fourth Amendment. Even sensible, constitutional limits on officers—like those adopted by DPS and espoused by Sheriffs Waybourn and Henderson—would violate SB 4. In fact, during the hearing, Texas’ lawyers referenced the Arizona “show me your papers” law, SB 1070, arguing that SB 4 was not nearly as severe.16 While it is true enough that SB 1070 goes further than SB 4 by requiring officers to make immigration status inquires of all detainees, it is also true that SB 1070 demands such inquires only “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” ARIZ. REV. CIV. STATUTE 11-1051(B). SB 4, on the other hand, does not even permit law enforcement agencies to demand that officers have reasonable suspicion before making an immigration inquiry of a detainee. And it prohibits law enforcement agencies, like the Austin Police Department, from placing this reasonable and constitutional restriction on their officers – the very same restriction DPS places on its officers.17 This flaw puts SB 4 into irreconcilable
16 See, e.g. Hearing Transcript at 120:11-17 (arguing that SB 4 occupies a middle ground between 8 U.S.C. § 1373 and Arizona’s SB 1070). 17 Austin also supports the argument made separately, by the El Cenizo plaintiffs among others, that SB 4 effectively requires police officers to make immigration inquiries because individual officers are included within the definition of “local entities” and the penalties for non-compliance are severe.
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Case 5:17-cv-00404-OLG Document 146 Filed 07/10/17 Page 9 of 9
conflict with the Fourth Amendment.18 Accordingly, Austin respectfully asks the Court to issue a
preliminary injunction against SB 4.
CONCLUSION
Austin asks the Court protect the people of Texas from the unconstitutional deprivations
threatened by the State’s pending enforcement of SB 4 by issuing a preliminary injunction.
Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Michael Siegel MICHAEL SIEGEL State Bar No. 24093148 CHRISTOPHER COPPOLA State Bar No. 24036401 Assistant City Attorneys City of Austin – Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 10th day of July, 2017.
/s/ Michael Siegel MICHAEL SIEGEL
18 Whereas the Arizona Court found that section 10-1051(B) of SB 1070 could survive a facial challenge, this provision of SB 4 cannot. Unlike with SB 1070, there is no way that a law enforcement agency could adopt a policy that permits officers to make an immigration inquiry only when doing so is supported by reasonable suspicion.
9

 
 Case 5:17-cv-00404-OLG

Document 146-1

Filed 07/10/17
0/jicc! of Lnjun..\

Page 1 of 4 '1/U..'IIl and Rc:mOI'al

Opermiom

l'.S. Departmcnl of Homclanu Scl·urity 500 12th Street. S\V Wa~hington, D.C. 2053(l

U.S. Immigration and Customs Enforcement

1v1E\r10RANDCM FOR: fROM:

February 21, 101 7

SUBJECT:

Implcmcnting the President· s Border Security and Interior Immigration Enforcement Policies

On February 21. 1017. Sccn:tary Kelly issued the attached rncmoranda. "hnplen1cnting the President~ s Border Security and Imm igrat ion Enforcement Irnprovemcnts Po1icies,.. and "Enforccn1cnt of the hnmigration Laws to Serve the National Interest.·· These nC\\' polices outline the role of the Department of Homeland Security (01-IS} in the implctncntation of Executive Order (E.O.) 13767, ··Border Security and Immigration Enforcement ln1provemcnts~.. 81 Fed. Reg. 8793 (Jan. 25~ 20 17)~ and E.O. 13 768. "Enhancing Public Safety in the Interior of the United States,·~ 82 Fed. Reg. 8799 (Jan. 25~ 20 17). Ertectivc irnmcdiatcly~ Enforcernenl and Removal Operations (J~RO) \viii in1plen1ent this direction from the Secretary. \Vith particular guidance as set forth bclo\v. Additionally. U.S . Immigration and Customs Enforcen1cnt (ICF) is rc,·icwing all existing policies and guidance documents and ~·il1 revise or rescind relevant policies in order to ensure consistency \Yith the I:.0.1
A. Enforcement Policy Effective in1mcdiatcly~ ERO of!'iccrs will take enforcement action against al! removable aliens
or encountered in the course their duties. As always~ ERO officers n1ust n1akc an indi\·idualized
custody detern1ination in every case. prioritizing detention resources on aliens subject to e:-\pedited removal and aliens rcn1ovable on any criminal ground. security or rciated ground~ or
or for grounds related to fraud or material misrepresentation. Under the terms of the 1·:.0.~ DJ IS
'"'ill no longer exempt dasscs or categories removable aliens from potential en forccmcnt. Additionally, regardless of the basis of removability. ERO ofliccrs should prioritize efforts to remove aliens who:
1 With the exception of the June 15. 20 i 2 memo . "1 ::\erc ising Prosccutorial Discretion with Respect to Individuals \Vho Came to the United States as Children." and th~ November 20 . .2014 memo, "Exercising Prosecutorial Discretion \vith Respect to Individuals Who Came to the United States as Children and with Respect to Ce11ain Individuals \Vho Arc the Parents of U.S . Citizens or Permanent Residents:·

Case 5:17-cv-00404-OLG Document 146-1 Filed 07/10/17 Page 2 of 4 FOR OFFICIAL USE ONLY
Subject: Implementing the President's Border Security and Interior Immigration Enforcement Policies
(1) Have been convicted of any criminal offense; (2) Have been charged with any criminal offense that has not been resolved;
(3) Have committed acts which constitute a chargeable criminal offense;
(4) Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
(5) Have abused any program related to receipt of public benefits; (6) Are subject to a final order of removal but have not complied with their legal
obligation to depart the United States; or (7) In the judgment of an immigration officer, otherwise pose a risk to public safety or
national security.
Aliens listed above do not necessarily have to be placed in removal proceedings based on a criminal ground of inadmissibility or removability. Instead, ERO officers should prioritize individuals within the above priorities for removal proceedings based on any lawfully available removal grounds.
B. Detention Policy
The agency is currently expanding detention space to support the E.O.' s termination of "catchand-release" policies.2 ERO will work to detain aliens pending a final determination of whether they will be removed from the United States, including a determination regarding eligibility for immigration relief and protection. ERO officers should only release from detention an alien detained pursuant to section 235(b) of the Immigration and Nationality Act (INA) on a case-bycase basis, in accordance with applicable statues and regulations, in the following situations:
(1) When removing the alien from the United States pursuant to statute or regulation; (2) When the alien obtains an order granting relief or protection from removal or DHS
detennines that the individual is a U.S. citizen, national of the United States, or an alien who is a lawful permanent resident, refugee, asylee, holds temporary protected status, or holds a valid immigration status in the United States; (3) A Field Office Director consents to the alien's withdrawal of an application for admission, and the alien contemporaneously departs from the United States; (4) When required to do so by statute, or to comply with a binding settlement agreement or order issued by a competent judicial or administrative authority; (5) A Field Office Director authorizes the alien's parole pursuant to section 212(d)(5) of the INA with the written concurrence of the Deputy Director of ICE, except in exigent circumstances such as medical emergencies where seeking prior approval is not practicable. In those exceptional instances, any such parole will be reported to the Deputy Director as expeditiously as possible; or (6) When an arriving alien processed under the expedited removal provisions of section
2 The implementation of this provision may be dependent upon the deployment of a surge of immigration judges and asylum officers and the acquisition of additional detention space, as determined by the Secretary.
Page 2 of4
FOR OFFICIAL USE ONLY

Case 5:17-cv-00404-OLG Document 146-1 Filed 07/10/17 Page 3 of 4 FOR OFFICIAL lJSE ONLY

Subject: In1plcmenting the Presidcn(s Border Security· and Interior hnmigration Enforcen1ent Policies
].J 5(b) has been f~)Und tO have cstab[ ished a ··credi blc rea{" 0 f persecution Or torture by an asylm11 ofi1ccr or an in1migration j udgc. provided that such an alien aftirmatively
or establishes to the satisfaction an immigration ofticcr his or her identity. that he or she
presents neither a security risk nor a risk or absconding. and provided that he or she agrees to comply v.,•ith any additional conditions of release imposed to ensure public safety and appearance at any removal hearings.

As the agency works to expand its detention capacity. detention of all such individuals may not be possible. Detention resources should be prioritit-cd based upon potential danger and risk of
flight if an individual alien is not detained.

C. Release and Parole Policy

ERO officers should process requests for parole or other release sparingly. and only in individual
or cases where. after careful consideration or the circumstances. the ollicer believes that the release
\VOuld serve the best interests of the United States because dcn1onstratcd urgent hu!nanitarian reasons or significant public benefit. Parole or other release. with all available safeguards. may· also be warranted in instances \vhere detention capacity limits the agency· s abi Iity to detain the alien consistent with legal requirements. including court orders and settlement agreetncnts.

or Agency policy establishing standards and procedures for the parole certain arriving aliens

found to have a credible tear of persecution or torture wiJI remain in full force and effect until further evaluation is cornplctcd and additional guidance is issued:~ LRO otliccrs arc reminded,

however. to apply ICE policy consistent with its plain language. and to ensure that the alien is

he1d to his or her burden or establishing identity and that his or her release vvill not pose a danger

or or risk night. There is no presumption that an individual a] icn- s release \VOUld not pose a

dani_!er or risk or llioht

l_.;

::;;,

..

D. Processing and Trcatntent of Unaccompanied Alien l\'linors
or ERO officers will continue to comp!y with the requirements the \\'illiam \\.'ilhcrforcc
Trafficking Yictin1s Protection Reauthorization Act of 2008 (TVPRA) and the Flores Settlement Agreement including all impletncnting policies and procedures. to ensure that all children~ including unaccon1panicd alien children. arc provided special protections to ensure that they arc properly processed and receive appropriate care and placement \vhen they arc encountered by Dl IS officers and agents. \1cxican and Canadian unaccompanied alien children may be permitted to \Vithdra\v their application f()r admission and return to rvlcxico or Canada after proper coordination \Vith the Mexican or Canadian Consulate has bl'en completed.

3 Current agency policy is sd CtH1h in ICI: Policy No. 11 00~.1: Parole or Arriving Aliens Found to !lave a Credible
Fear of Persecution or Tmture. dated Dctember 8. 2009. which is available here . The policy is implicated by pending litigation before the U.S. Supreme Coun in Jennings l'. l?odrigue::. No. 15-1.:204. and as noted in the Secrewry's February \7. 2017 memorandum. "Implementing the President's Border SccuriLy and Immigration Enforcement Improvements Policies." is subject to further review and evalumion pending ongoing implementation of Executive Order 13767.
Page 3 of 4
FOR Of-FICIAL USE ONLY

Case 5:17-cv-00404-OLG Document 146-1 Filed 07/10/17 Page 4 of 4 FOR OFFICIAL USE ONLY
Subject: Implementing the President's Border Security and Interior Immigration
Enforcement Policies
Unaccompanied alien children who are permitted to withdraw may be repatriated at the nearest port of entry to Mexican or Canadian Consulate officials at a time designated by the consulate
official. E. No Private Right of Action
This document provides only internal ICE policy guidance~ which may be modified~ rescinded, or superseded at any time without notice. This guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise~ no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of ICE. In implementing these policies, 1direct all ERO employees to consult with legal counsel through
proper chain of command, to ensure compliance with all applicable laws, including the Administrative Procedure Act.
Page 4 of4
FOR OFFICIAL USE ONLY

 
 Case 5:17-cv-00404-OLG Document 148 Filed 07/10/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.
EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.
CITY OF SAN ANTONIO, et al. Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

NO. 5:17-cv-404-OG [Lead Case]
No. 5:17-cv-459-OG [Consolidated Case]
No. 5:17-cv-489-OG [Consolidate Case]
SUPPLEMENTAL BRIEF OF TRAVIS COUNTY PLAINTIFF-INTERVENORS

Supplemental Brief of Travis County Plaintiff-Intervenors

508642_1

1

Case 5:17-cv-00404-OLG Document 148 Filed 07/10/17 Page 2 of 13

SUPPLEMENTAL BRIEF OF PLAINTIFF-INTERVENORS TRAVIS COUNTY, TRAVIS COUNTY JUDGE SARAH ECKHARDT, AND TRAVIS COUNTY SHERIFF
SALLY HERNANDEZ
TO THE HONORABLE JUDGE ORLANDO L. GARCIA: Plaintiff-Intervenors Travis County, Travis County Judge Sarah Eckhardt, in her official
capacity, and Travis County Sheriff Sally Hernandez, in her official capacity (“Travis County”), file this Supplemental Brief pursuant to this Court’s Order authorizing supplemental briefing [Dkt. 140].
I. INTRODUCTION The State argues Senate Bill 4 (“SB 4”) sets simple requirements for law enforcement officials to follow. However, the interplay between terms that are undefined or poorly defined and oddly phrased mandates and prohibitions fails to provide the necessary clarity and will subject individuals to the severe penalties articulated in SB4 for even the slightest misstep. These requirements, at best, are unclear as to the actual meaning and to whom they apply. In reality, the statute requires officials to ignore their subjective knowledge of a potential constitutional violation or suffer criminal penalties, removal from office, or civil penalties. In light of the open threats and subsequent consequences suffered by Travis County, it is imperative the statute is not vague so that individuals are not subject to the whims of a temperamental state official. Travis County Plaintiff-Intervenors submit the following briefing and adopt by reference the arguments, authorities, evidence and exhibits filed prior to or offered at the hearing in support of all plaintiffs’ applications for preliminary injunction as additional support, or as alternative theories to those set forth previously and herein.

Supplemental Brief of Travis County Plaintiff-Intervenors

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Case 5:17-cv-00404-OLG Document 148 Filed 07/10/17 Page 3 of 13

II. SB 4 MANDATES IMMIGRATION ACTIVITIES BY LOCAL OFFICERS AND EMPLOYEES

a. SB 4 mandates compliance by all employees.

SB 4 enacts Chapter 752 of the Texas Government Code, which mandates certain acts by
“local entities” as follows:
Sec. 752.053. POLICIES AND ACTIONS REGARDING IMMIGRATION ENFORCEMENT. (a) A local entity or campus police department may not:
(1) adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws; (2) as demonstrated by pattern or practice, prohibit or materially limit the enforcement of immigration laws; or (3) for an entity that is a law enforcement agency or for a department, as demonstrated by pattern or practice, intentionally violate Article 2.251, Code of Criminal Procedure.

(b) In compliance with Subsection (a), a local entity or campus police department may not prohibit or materially limit a person who is a commissioned peace officer described by Article 2.12, Code of Criminal Procedure, a corrections officer, a booking clerk, a magistrate, or a district attorney, criminal district attorney, or other prosecuting attorney and who is employed by or otherwise under the direction or control of the entity or department from doing any of the following:
(1) inquiring into the immigration status of a person under a lawful detention or under arrest; (2) with respect to information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest, including information regarding the person's place of birth:
(A) sending the information to or requesting or receiving the information from United States Citizenship and Immigration Services, United States Immigration and Customs Enforcement, or another relevant federal agency; (B) maintaining the information; or (C) exchanging the information with another local entity or campus police department or a federal or state governmental entity;

Supplemental Brief of Travis County Plaintiff-Intervenors

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Case 5:17-cv-00404-OLG Document 148 Filed 07/10/17 Page 4 of 13

(3) assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance; or (4) permitting a federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration laws.1 (emphasis added)
The State argues that while this new section prohibits local political subdivisions from
adopting or enforcing policies that “materially limit” immigration enforcement, it only
authorizes, and does not mandate, line officers or employees to “inquire into the immigration status of a person under a lawful detention or under arrest.”2 The State further argues that each
line officer or employee is allowed to make the decision about whether to inquire about
immigration status or not. The State insists that SB 4 only says that if a line officer or employee decides he will engage in immigration activities, he cannot be prevented from doing so.3
This reading ignores SB 4’s definition of “local entity” in new §752.051(5), which reads
in pertinent part as follows::
(5) "Local entity" means: … (B) an officer or employee of or a division, department, or other body that is part of a municipality, county, or special district or authority, including a sheriff, municipal police department, municipal attorney, or county attorney; and (C) a district attorney or criminal district attorney.4 (emphasis added)
Line officers and employees are included in this definition of “local entity,” and a “local
entity” is prohibited from adopting, enforcing, or endorsing policies that materially limit
immigration enforcement. Consequently, line officers and employees are restricted from
adopting, enforcing, or even endorsing their own practices that “materially limit” immigration

1 Act of May 7, 2017, 85th Leg., R.S., S.B. 4, to be codified as an amendment to Tex. Gov’t Code at § 752.053. 2 PI Hr’g Tr. 105:15-19, Jun. 26, 2017. 3 Dkt. 91, Def.’s Resp. to Mot. for PI. 58; PI Hr’g Tr. 117:21-24. 4 S.B. 4, to be codified at Tex. Gov’t Code § 752.051 (5).

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Case 5:17-cv-00404-OLG Document 148 Filed 07/10/17 Page 5 of 13
enforcement, a restriction which applies to all immigration enforcement activities, not merely inquiries about immigration status.
b. State’s interpretation of SB 4 would have an illogical result. Even if the State’s argument were true, allowing each officer or employee to make his
own independent decision about whether to inquire into the immigration status of persons he has detained will create a crazy patchwork within a local political subdivision where in certain areas, officers will make inquiries, and in others, they may not. This is contrary to the State’s expressed goal of consistent enforcement across the State.5
Supervisors will have no control over the everyday activities of their officers, lacking the ability to provide guidance in this area for fear such guidance will be construed as an informal, unwritten policy that will subject them to the statute’s severe penalties. For example, if a Sheriff prohibits overtime or specific assignments, it may materially limit a line officer’s cooperation with federal immigration authorities in violation of the statute, and consequently subject the Sheriff to penalties. In fact, even disciplining employees for actions or decisions that in some manner touch on immigration may fall within the prohibited activity. Arguably, this lack of control would extend to attempts to discipline officers who deliberately abuse the inquiry process in order to assist immigration agents.
Even murkier under SB 4 is what a line officer is expected to do with the immigration status information he collects. Texas asserts that the line officer or employee doesn’t have to do anything with it,6 but they clearly expect that he will, or there would be no reason to require him to collect the information.

5 Dkt. 91, Def.’s Resp. 16, 56, 73; PI Hr’g Tr. 103:13-15 & 23-25. 6 PI Hr’g Tr. 115:3 – 116:1.

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Clearly, the plain language of SB 4 imposes statutory obligations upon “local entit[ies]” such as the Sheriff, Constables, County Attorney, and District Attorney of Travis County and their employees. The statutory obligations include requirements to: exchange immigration information with “relevant federal agenc[ies]”7; maintain immigration information8; exchange immigration information with local, state, and federal entities9; assist or cooperate with federal immigration officers, “including providing enforcement assistance”10; and permit ICE to “enter and conduct enforcement activities at a jail to enforce federal immigration laws.”11 The duties imposed by SB 4 on local entities in this regard involve far more than just facilitating an individual peace officer’s ability to make immigration inquiries if he/she chooses to do so. Such statutory obligations blur, if not completely obliterate, the lines between federal immigration law and local law enforcement.
Moreover, SB 4 provides no guidance to officers in carrying out the statutory duties the Act imposes with respect to “immigration information.” In argument offered during the Preliminary Injunction hearing, the State suggested that an officer might call the federal government’s Law Enforcement Services, open 24 hours a day, 7 days a week, every day of the year.12 However, making this call is not a resolution to the problem of having a person detained by the side of the road. Even if federal agencies can inform the officer that the person is not documented, the officer is still left standing by the side of the road detaining a person, with no way to move forward short of arresting the person without probable cause or a warrant, or at

7 S.B. 4, to be codified at Tex. Gov’t Code § 752.053(b)(2)(A).
8 S.B. 4, to be codified at Tex. Gov’t Code § 752.053(b)(2)(B). 9 S.B. 4, to be codified at Tex. Gov’t Code § 752.053(b)(2)(C). 10 S.B. 4, to be codified at Tex. Gov’t Code § 752.053(b)(3). 11 S.B. 4, to be codified at Tex. Gov’t Code § 752.053(b)(4). 12 PI Hr’g Tr. 110:11-16.

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least continuing to detain him for intervention by ICE, both of which risk violating the person’s Fourth Amendment rights.
III. TRAVIS COUNTY PLAINTIFFS HAVE STANDING TO ASSERT FOURTH AMENDMENT CLAIM
The State has argued that Plaintiffs lack standing to assert a Fourth Amendment claim because such claims must be asserted by individuals suffering the deprivation.13 Contrary to this assertion, Travis County Plaintiffs, specifically Sheriff Hernandez, has standing to assert the claims asserted pursuant to the Fourth Amendment.
a. Sheriff Hernandez has standing.14 SB 4 mandates that local entities honor any immigration detainer request, which is defined by the law itself as any “federal government request” to maintain custody, whether verbal or written, “including a United States Department of Homeland Security Form I-247 document.”15 By requiring the Sheriff (and her employees) to honor all ICE detainers, and by also imposing the threat of enormous civil penalties, removal from office, and criminal sanctions for not honoring ICE detainers, SB 4 places them in the untenable position of having to choose between violating the Fourth Amendment rights of persons in their custody and their own oaths to support the U.S. Constitution or facing serious personal consequences that could even include jail time. As the sheriff whose policy on ICE detainers drew the ire of the Governor and the Legislature and hardened their resolve to enact SB 4,16 Sheriff Hernandez has clearly established her “personal stake” in the outcome of this litigation such that her involvement assures a concrete adverseness which sharpens the presentation of issues. Bd. Of Education v. Allen, 392 US.

13 PI Hr’g Tr. 122:2-8. 14 The State sued Travis County and Sheriff Hernandez in Travis County within hours after SB4 was signed by the
Governor seeking a declaratory judgment regarding the constitutionality of SB4. Dkt. 14-1, Def.’s Memo. in Supp.
of Opp. Mot. to Dism. or Transf. 1. 15 S.B. 4, to be codified at Tex. Gov’t Code § 772.0073(a)(2). 16 Dkt. 91, Def.’s Resp. 73; PI Hr’g Tr. 134:17-21.

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236, 241 n.5 (1968). See also, Baker v. Carr, 369 U.S. 186, 204 (1962); U.S. Const. art VI; Tex. Const. art. 16, §1 (a). As noted by the Supreme Court in Bd. of Education, “having to choose between violating their oath” or “refusal to comply” with a statute believed to be unconstitutional when such refusal would likely result in expulsion from office is sufficient to establish standing (citing Baker). Although the Fifth Circuit has declined to extend standing to those officials whose only injury is violating an oath, the Fifth Circuit has recognized that the danger of expulsion and other injuries would satisfy an injury sufficient for standing. See, Finch v. Mississippi State Med. Ass'n, Inc., 585 F.2d 765, 774 (5th Cir. 1978), modified, 594 F.2d 163 (5th Cir. 1979) (plaintiff was “in no danger of expulsion from office”); Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir. 2008) (similar). In this instance, Sheriff Hernandez’s standing is further supported by the fact that failure to comply with SB4 may result in criminal charges and civil penalties. In light of the State’s well documented history of actions and statements regarding “hammering” Travis County, the risk of losing further funding also strengthens her standing, as well as that of Travis County. The Attorney General’s assurances that they do not read the statute a particular way and that they would not proceed that way does not negate the Sheriff’s standing.
b. Travis County and Sheriff Hernandez also assert the rights of their officers and employees because they are intertwined.
SB 4’s definition of “local entities” includes their individual employees and may subject those employees to SB 4’s crushing civil penalties of not more than $1,500 for the first violation and not more than $25,000 for each subsequent violation. The law further fails to articulate whether the entity or the individual would be responsible for the fine. As such, Travis County establishes a personal stake in the outcome of this litigation. Plaintiffs’ standing on the Fourth Amendment issue arises from the SB 4’s requirement that Plaintiffs completely disregard the

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Fourth Amendment rights of individuals in their custody, potentially violating their oaths, and suffering civil penalties and/or criminal charges.
IV. SB4 DOES NOT MITIGATE RISKS TO COUNTY FOR VIOLATION OF THE CONSTITUTION
The State essentially asks this Court to ignore the constitutional deficiencies of the statute because the statute provides mitigation strategies to assist the Plaintiffs. A cursory review of SB4 reveals the inadequacies of the statute to mitigate the Plaintiffs concerns. Neither the statute nor the State’s representations provide adequate mitigation for the constitutional concerns that have been raised.
a. The State claims grant money will be a cost savings to counties. When some witnesses expressed concerns about the additional costs of complying with SB 4’s mandates, the State made a great show of asking the witnesses whether they had made application for grant funds authorized by the bill. Not surprisingly, none of the witnesses was aware that grant funds were currently available. Why? Although SB 4 provides for establishment of a grant program, the bill does not go into effect until September 1, so of course this program does not yet exist. There is currently no evidence that the grant program has been established or funded.17 Although SB 4 provides that the Governor’s Criminal Justice Division (“CJD”) must establish and administer a competitive grant fund to provide assistance to local entities to offset costs related to enforcing immigration laws or honoring ICE detainer requests, Travis County has particular reason to doubt the availability of such funds to them, as the Governor terminated all of Travis County’s 2016-2017 CJD grants mid-term on March 1, 2017, and subsequently denied Travis County’s applications for CJD grants for the upcoming 2017-2018 grant cycle. The Governor threatened to “hammer” Travis County, and he did. The awarding of grants is at the

17 See CJD’s List of Grant Programs at https://egrants.gov.texas.gov/fundopp.aspx

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discretion of the Governor’s Office. No reason is required for not awarding a grant to a particular applicant, and the Governor’s Office has clearly demonstrated that it regards and will use grants as a tool to control and express the Governor’s displeasure with local entities, especially Travis County.
b. Attorney General will defend local entities if sued. Obviously anticipating Fourth Amendment challenges to SB 4, the Legislature included a section that allows the Attorney General (“AG”) to represent a local entity that is sued for a Fourth Amendment violation. Although the State would like to proceed with the premise that this provision is couched in mandatory terms, “[t]he attorney general shall defend…,” the statute actually provides a great deal of latitude to the Attorney General because it requires an application from the local entity, and it requires representation only “if the attorney general determines the cause of action arises out of a claim involving the local entity’s good-faith compliance with an immigration detainer request required by Article 2.251, Code of Criminal Procedure.”18 It does not provide a mechanism to challenge the AG’s decision. Further, it does not provide representation for any other claims arising out of the compliance with required policies and for the enforcement of immigration inquiries by line officers or employees. Further, it requires the local entity or individual to release all control of the matter to the AG, allowing a settlement with a finding of liability against the local entity. In Travis County’s case, the State’s position of wanting to “hammer” Travis County could result in various situations resulting in criminal charges, removal, or civil penalties as a result of the AG’s complete control of the civil matter, or a decision to leave Travis County to fend for itself when faced with litigation related to SB 4 and its consequences, intended or incidental.

18 S.B. 4, to be codified at Tex. Gov’t Code § 402.0241 (b).

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c. The federal government will take custody of inmates the last seven days of their state sentences.
Texas touted SB 4’s provision for sending inmates with ICE detainers to serve the final seven days of their state sentences in federal custody as a huge money-saver for local entities. However, Texas failed to mention that “[t]his subsection applies only if appropriate officers of the federal government consent to the transfer of the defendant into federal custody….”19 (emphasis added) The Texas Legislature cannot mandate the federal government to take these inmates, and there is no evidence that the federal government will take them, that they have the capacity to house them, or that they have authority to supervise inmates serving State sentences. This “solution” appears to be nothing more than wishful thinking or smoke and mirrors, and is just too speculative for a reasonable person to rely on.
d. The Attorney General “would never…” The Attorney General made repeated statements to the effect that, “We would never prosecute anyone for that,” and “Nothing would ever happen to someone who did that.” In making such statements, the AG used egregious examples of conduct under the statute, but there are a multitude of less egregious examples of conduct that a representative of the State may or may not find to violate the law. A different representative of the State might find even those very egregious examples of conduct to violate the law. Even assuming the representations of the AG are genuine, these statements are subject to change and interpretation and cannot bind future attorneys general. The statute is vague. Local entities, their officials, officers, and employees cannot operate effectively in a situation where they are afraid to take actions because they are unsure whether those actions might violate this law. They are effectively constrained to a very mandatory and

19 S.B. 4, to be codified at Tex. Code Crim. Pro. art. 42.039.

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very broad reading of the law that severely limits even activities that they would normally be expected to perform in the positions they occupy (training, oversight, supervision, even answering questions). The consequences they face should someone decide that something they have done violated the law are dire, and affect their livelihoods, their careers, and their freedom.
V. CONCLUSION As set forth in the El Cenizo Plaintiffs’ Memorandum in Support of Application for Preliminary Injunction, [Dkt. 24-1] and in Plaintiff-Intervenor Travis County, et al.’s Application for Preliminary Injunction [Dkt. 70], Plaintiffs and Travis County PlaintiffIntervenors have established that they are likely to succeed on the merits of their claims that SB 4 violates the Constitution; that Plaintiffs and Travis County Plaintiff-Intervenors will suffer irreparable harm if the Court does not enjoin SB 4; that the Defendants will suffer no harm if the Court preserves the status quo pending adjudication of this matter on the merits; that the balance of hardships tips strongly in favor of Plaintiffs and Travis County Plaintiff-Intervenors, and that a preliminary injunction in this case advances the public interest. For these reasons, Travis County Plaintiff-Intervenors respectfully request that the Court grant the Plaintiff Intervenors Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Hernandez’s Application for Preliminary Injunction.

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Dated: July 10, 2017.

Respectfully Submitted,
DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY P. O. Box 1748 Austin, Texas 78767 (512) 854-9415 (512) 854-4808 FAX
By: /s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon K. Talley Assistant County Attorney State Bar No. 19627575 sharon.talley@traviscountytx.gov Anthony J. Nelson Assistant County Attorney State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh Assistant County Attorney State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie Assistant County Attorney State Bar No. 11784853 tim.labadie@traviscountytx.gov
ATTORNEYS FOR TRAVIS COUNTY PLAINTIFF-INTERVENORS

CERTIFICATE OF SERVICE I hereby certify that on July 10, 2017, I served a copy of the foregoing document on all counsel registered to receive NEFs through this Court’s CM/ECF system. All attorneys who are not registered to receive NEFs have been served via email.
/s/ Sherine E. Thomas Sherine E. Thomas

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al.,

§

§

EL PASO COUNTY; RICHARD WILES,

§

SHERIFF OF EL PASO COUNTY; JO ANN §

BERNAL, EL PASO COUNTY ATTORNEY in §

their official capacity; TEXAS ORGANIZING §

PROJECT EDUCATION FUND; and MOVE §

SAN ANTONIO,

§

§

CITY OF SAN ANTONIO, et al.,

§

§

Plaintiffs,

§

§

v.

§

§

THE STATE OF TEXAS, et al.,

§

§

Defendants.

§

Civil Action No.: 5:17-CV-00404-OLG (Lead Case)
Civil Action No: 5:17-CV-00459-OLG (Consolidated case)
Civil Action No: 5:17-CV-00489-OLG (Consolidated case)

CONSOLIDATED PLAINTIFFS EL PASO COUNTY, ET AL.’S POST-HEARING BRIEF IN SUPPORT OF THEIR APPLICATION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 149 Filed 07/10/17 Page 2 of 23
Table of Contents ARGUMENTS AND EVIDENCE............................................................................................... 2
I. Plaintiffs are Substantially Likely to Succeed on Their Claim that SB 4 Violates the Fourteenth Amendment’s Equal Protection Clause. ............................................................. 2
A. Plaintiffs Have Shown That SB 4 Violates the Fourteenth Amendment’s Equal Protection Clause. ................................................................................................................... 2 B. Supplemental Evidence of Disparate Impact ................................................................... 2 C. Additional Arlington Heights evidence showing that SB 4 was adopted with a discriminatory purpose............................................................................................................ 3
1. Historical background of and atmosphere surrounding SB 4........................................ 3 2. Sequence of events leading to the law’s enactment ...................................................... 4 3. Departures from the normal procedural sequence......................................................... 5 II. SB 4 Violates the First Amendment and Defendants Have Sued TOPEF in Retaliation ................................................................................................................................ 13 A. Testimony at the Preliminary Injunction Hearing confirmed that SB 4 will impermissibly restrict public servants’ freedom of speech. .................................................. 13 B. Defendants retaliated against TOPEF in violation of the First Amendment ................. 14 III. Plaintiffs’ Fourth Amendment Claims are Properly Brought and SB 4 will Result in Unconstitutional Seizures. ...................................................................................................... 15 A. Facial challenges to the Fourth Amendment are permitted and can succeed. .............. 15 B. SB 4 violates the Fourth Amendment ............................................................................. 16 IV. SB 4 is Unconstitutionally Vague. ................................................................................. 18 V. SB 4 Will Irreparably Harm Plaintiffs. ......................................................................... 18 CONCLUSION ........................................................................................................................... 20
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SB 4 is the culmination of a deliberate campaign against Latino immigrants in Texas, who are the fastest growing ethnic minority group in the state and poised to come into a position of greater power in Texas. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation.” League of United Latin American Citizens v. Perry, 548 U.S. 399, 440 (2006). It was fueled by an ugly national rise in nativist and anti-immigrant sentiment in recent years, but tailored to target persons of Latin American descent here in Texas.
The record evidence in this case, including the evidence presented to the Court at the Preliminary Injunction hearing, confirms that SB 4 was motivated, at least in part, by illicit racial animus. This discriminatory intent has been evident since the bill was proposed, lurking in contemporaneous statements of high-ranking Texas officials, coloring its consideration in the Texas Senate and its tumultuous debate in the Texas House of Representatives, and culminating in how SB 4 was signed into law before a national online audience amidst fervent opposition on the ground in Texas. Defendants failed to present, either in their written submission or at the hearing, any evidence that would support a legitimate policy rationale for the adoption of SB 4. The dearth of such evidence further confirms SB 4’s invidious purpose.
Rather than reiterate arguments previously made before this Court, the Plaintiffs1 write to respond to certain of Defendants’ arguments that pertain specifically to their claims and to highlight salient evidentiary points that confirm that Plaintiffs have a substantial likelihood of success on the merits—particularly on Plaintiffs’ Equal Protection Clause claim— and that SB 4
1 This brief is submitted on behalf of El Paso County; Richard Wiles, Sheriff of El Paso County, in his official capacity; Jo Anne Bernal, County Attorney of El Paso County, in her official capacity; the Texas Organizing Project Education Fund, and MOVE San Antonio.
1

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will cause irreparable harm to Plaintiffs and thousands of individuals in Texas. For these reasons, and for the reasons set forth by the other plaintiffs, the Court should enjoin SB 4 in its entirety.
ARGUMENTS AND EVIDENCE I. Plaintiffs are Substantially Likely to Succeed on Their Claim that SB 4 Violates the
Fourteenth Amendment’s Equal Protection Clause. A. Plaintiffs Have Shown That SB 4 Violates the Fourteenth Amendment’s Equal
Protection Clause. Plaintiffs’ submissions and the evidence presented at the June 26, 2017 hearing show that SB 4 violates the Fourteenth Amendment because it impermissibly disparately affects Latino Texans based on their ethnicity and was enacted, at least in part, with discriminatory intent.
B. Supplemental Evidence of Disparate Impact The evidence presented thus far shows that SB 4 disproportionately and impermissibly targets and affects Latino Texans. Of the estimated 4.6 million foreign-born Texas residents, an estimated 3.2 million are Latino. El Paso County, et al.’s Memorandum in Support of Application for Preliminary Injunction, ECF 56-1, at 6. In El Paso, the Latino population comprises 82% of the total population. Decl. of Jo Anne Bernal, ECF 56-2, at 4; Hr’g Tr. 9:4 (June 26, 2017). In the House Debate on SB 4, Chairman Charlie Geren equated Latino immigrants with undocumented immigrants—“illegals,” as he derogatorily called them—when talking about the impetus for his sponsorship of SB 4. ECF 56-1 at 9; H.J., 85th Leg., R.S. S14-S15 (57th Legislative Day) (Tex. 2017). The House sponsor of SB 4 conceded both that the vast majority of immigrants in Texas are Hispanic and that law enforcement officers are not trained in immigration law or types of visas available in the United States. ECF 56-1 at 8-9. This conflation of Hispanic Texans and “illegals” shows that Chairman Geren, in supporting SB 4, saw no
2

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difference between undocumented immigrants and Latino Texans, thus showing that the intent behind this bill is to target Latino Texans under the guise of race-neutral language. See Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir.), aff'd sub nom. Rogers v. Lodge, 458 U.S. 613 (1982) (discriminatory motives are often “cleverly cloaked in the guise of propriety.”).
At the hearing, El Paso County Attorney Jo Anne Bernal and Bexar County Judge Nelson Wolff explained this disparate impact based on their decades of experience as public servants. County Attorney Bernal explained that, in El Paso County, a vast majority of the applicants for protective orders are Latino, and about half are undocumented or of undetermined immigration status. Tr. 14:2-4.2 Similarly, Judge Wolff testified that when 71,000 people in Bexar County are undocumented and 66,000 of them are Hispanic, “it would stand to reason … that [law enforcement officials] would ask a Hispanic. And, obviously, a Hispanic may have a little accent, a little darker skin. I call that racial profiling and so does the sheriff and so does the police chief.” Tr. 221:25-222:5.
Defendants cannot seriously dispute that SB 4 will have a disparate impact on Latinos. C. Additional Arlington Heights evidence showing that SB 4 was adopted with a
discriminatory purpose. 1. Historical background of and atmosphere surrounding SB 4 SB 4 was not enacted in a vacuum. It is just the latest and harshest in a long line of statelevel anti-immigrant legislation rooted in anti-Latino bias. SB 1070 in Arizona, for example, was directly rooted in fears of an increasing Latino population in the State, and the Supreme Court
2 Count Attorney Bernal’s sworn declaration explains how local law enforcement officers will have no choice but to engage in racial profiling because officers would be tasked with parsing and questioning Texans’ compliance with federal immigration laws, which are based on nationality. ECF 56-3, at 5. Because officers are not trained in immigration law and the vast majority of Texas immigrants are Latino, officers will inevitably feel compelled to question Latinos on their immigration status. See id.
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invalidated most of that law. See Arizona v. United States, 567 U.S. 387 (2012). In Alabama, the State tried to pass an “anti-immigrant” bill that was so clearly actually an anti-Latino bill, that U.S. District Judge Myron Thompson found the entire law likely discriminatory because of the numerous examples of lawmakers using ethnic stereotypes and using “Hispanic” and “illegal immigrant” interchangeably during the bill’s debate.3 SB 4 is similarly racially motivated, and is an attempt by Defendants to discriminate against Latinos under the guise of immigration enforcement legislation. This historical context shows that SB 4 was enacted with an impermissibly discriminatory intent.4

At the hearing, Representative Ana Hernandez emphasized that the Legislative Session leading up to the passage of SB 4 had an unusual focus on penalizing Latino immigrants, not only in the debate around SB 4, but also in the debate of other non-immigration related bills. Tr. at 155. In fact, after the incident in which Rep. Matt Rinaldi racially profiled Latino protesters at the Capitol and called ICE on them, Rep. Cesar Blanco received a call to his office in which the caller stated: “I stand with Matt Rinaldi and fuck the illegal alien spicks […] White power!”5 This was the discriminatory and hateful anti-Latino environment in which SB 4 came to be.

2. Sequence of events leading to the law’s enactment

The testimony of Rep. Hernandez, the declaration of former Representative Trey

Martinez Fisher (Ex. P-213), and other evidence presented at the hearing show that the adoption

3 Alabama’s Anti-Immigrant Law Dealt Yet Another Major Blow, SOUTHERN POVERTY LAW

CENTER, Dec. 11, 2011, https://www.splcenter.org/news/2011/12/12/alabama%E2%80%99s-

anti-immigrant-law-dealt-yet-another-major-blow.

4 See also ECF 56-1 at 11-13.

5 Peter W. Stevenson, A Texas Republican is accused of threatening to ‘put a bullet in one of my

colleagues’

heads,

WASHINGTON

POST,

May

30,

2017,

https://www.washingtonpost.com/news/the-fix/wp/2017/05/29/a-texas-republican-called-ice-on-

protesters-then-lawmakers-started-to-scuffle/?utm_term=.ed9038cb59bb.

See

also

https://twitter.com/CesarJBlanco/status/869402867052023808.

4

Case 5:17-cv-00404-OLG Document 149 Filed 07/10/17 Page 7 of 23
of SB 4 was a clear departure from established norms. Rep. Hernandez testified at length about the “racial tension” early on in the Legislative Session, and in particular, how the “the issue of immigration [was] injected into” unrelated topics from the outset. Tr. 155:20-156:5. Specifically, an amendment to a childcare reform bill would have prohibited monetary payments to undocumented caregivers, when the substance of the bill was wholly unrelated to immigration matters. Tr. 155:13-22.6 Again, these events illustrate that SB 4’s enactment was predicated on anti-Latino animus.
Former Rep. Martinez Fisher described the “truly bizarre and genuinely dangerous way” in which the Legislature handled SB 4, including its debate and amendments (see Sec. I.C.3, infra). Senator José Rodríguez, with years of experience in the Legislature, described the 2017 Legislative Session as “the most anti-Latino in modern Texas history.” ECF 56-5, Decl. of Sen. José Rodríguez, ¶13. At the Preliminary Injunction hearing, counsel for Defendants strongly suggested that SB 4 directly targeted Travis County Sheriff Sally Hernandez. Tr. 134:17-25.7
3. Departures from the normal procedural sequence Core procedural irregularities in the enactment of SB 4, both submitted as evidence and testified to at the hearing, further reveal the true discriminatory intent behind the law. Veasey v.
6 During the debate of this specific amendment, at one point the proponent of the amendment was surrounded at the front microphone of the House chamber by White/Caucasian Members. Tr. 155:6-156:2. At the rear microphone, typically used to ask questions of the Member at the front microphone, a Latino representative who opposed to the amendment was surrounded by Latino and African-American Members. Tr. 156:2-5. This visual juxtaposition was emblematic of the intent behind SB 4. 7 At the hearing, Counsel for Defendants purported to give rationales for the passing of SB 4, citing the Kate Steinle murder in San Francisco (in California, not Texas) and “public safety, because of the important debate on compliance with ICE detainers.” Tr. 134:25-135:1. These post-enactment statements of counsel are belied by the record evidence and, regardless, are not at all probative of legislative intent.
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Abbott, 830 F.3d 216, 238 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017).8 (i) The Senate Process
SB 4 was an exceptionally important and urgent bill to its proponents and their leadership. ECF 56-4, Decl. of Rep. E. Rodríguez, ¶ 5; ECF 56-5, ¶ 16. Normally, a bill is given a number in sequential order based on when it is filed.9 The Speaker of the House and the Lieutenant Governor, however, traditionally assign low bill numbers to the bills that are their personal priorities. Id. SB 4’s low number designation meant that the “show-me-your papers” bill was a priority for the Lt. Governor from the get-go.
The Texas Constitution strictly proscribes the timeframe for a regular legislative session. In addition to prohibiting either chamber from passing legislation during the first 60 days of a 140-day legislative session, the Constitution forbids any action from being taken on a bill other than introduction and referral to committee during the first thirty days. This includes a prohibition on committees holding hearings on a bill. The exception to this constitutional rule is that matters declared “emergency” by the Governor may be considered at any time during that 60 day period. See Tex. Const. Art. 3 § 5(b). On January 31, 2017, Governor Abbott, in an official message to the legislature, declared banning so-called “sanctuary cities” an emergency item.
In language that bore a striking resemblance to already filed SB 4, Governor Abbot listed “legislation relating to state or local government cooperation with federal immigration law or
8 The Veasey Court analyzed “numerous and radical” departures from the regular process in the adoption of state law that may show discriminatory intent. 830 F.3d at 238. Many similar departures plagued SB 4’s legislative process. 9 Aman Batheja and Becca Aaronson, TEXAS TRIBUNE, Here’s a Look at What Happened With Straus’ and Patrick’s Priority Bills, July 18, 2015, https://www.texastribune.org/2015/07/08/what-happened-patrick-and-straus-priority-bills/.
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federal immigration officials” as one of four state “emergency matter[s].”10 This allowed SB 4 to “cut in line” ahead of the bulk of legislation that was not an “emergency” item, thus bypassing the strict requirements other bills in Texas must go through and allowing SB 4 to be passed with extraordinary speed.
There is also ample evidence that the Governor’s office was working closely with the Legislature and Lt. Governor Patrick to move SB 4 outside of typical channels. In addition to assigning SB 4 a low bill number and declaring it an emergency item, a troublesome sequence of events shows atypical efforts on behalf of both the Governor and the Legislature to set SB 4 for hearing and pass the bill as quickly as possible. On January 25, 2017, almost a full week before the Governor’s January 31, 2017 designation of SB 4 as an emergency item, the Senate Committee on State Affairs posted its notice of their intent to consider SB 4 on February 2, 2017.11 Had SB 4 not been designated an emergency item by the Governor before February 2, no action on SB 4 could have been taken in the State Affairs Committee. At the time the February 2 hearing was scheduled, SB 4 had not yet been designated an emergency item and therefore no action could have been taken on it. Thus, the Senate Committee on State Affairs clearly knew that SB 4 would indeed be designated as an emergency item before the Governor declared it as such. This backwards sequence shows close collusion between the Governor and the Legislature to push SB 4 through to passage.
But utilizing Constitutional and Senate rules in novel ways was not enough for the Texas Senate and Lt. Governor Patrick. The Senate went a step further and broke with both Senate
10 Letter from Greg Abbott, Texas Governor, to Patsy Spaw, Texas Secretary of the Senate (January 31, 2017), available at http://www.lrl.state.tx.us/scanned/govdocs/Greg%20Abbott /2017/message01312017_immigration.pdf. 11 Lt. Governor Patrick assigned SB 4 to the Senate Committee on State Affairs.
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Rules and well-established practice to pass SB 4. On February 2, 2017, the Senate State Affairs Committee held a daylong committee hearing that included testimony from hundreds of opponents of the bill. ECF 56-5, ¶¶ 20-22. Only around 10 people testified in favor. Id.; Tr. 162:3.
As mentioned before, the denial of a seat at the table to Senators who opposed the bill was a departure from the Senate’s long-standing practice. This limited the ability of Senators who opposed the bill to effectively test the evidence offered by witnesses, especially in light of the fact that the overwhelming majority of the committee favored the bill, as shown in the tally reporting SB 4 to the full Senate with the recommendation that it pass as substituted. Moreover, public debate on the bill was cut short. ECF 56-5, ¶ 23-27. These actions deviated from longstanding Senate practice to permit sufficient time for the full consideration of legislation.
Tellingly, the State Affairs Committee violated Senate Rules in order to meet and pass SB 4. Under Senate Rule 11.13, Senate committees may not meet to consider bills and resolutions when the Senate is in session, “except by unanimous consent of the members present.”12 The Senate Journal shows that on Wednesday, February 1, 2017 at 10:30 a.m., the Senate was called to order for the ninth legislative day. While awaiting the receipt of committee reports, the Senate remained in session from Wednesday, February 1 until Friday, February 3, 2017 at 1:47 p.m., when the ninth legislative day adjourned. See S.J., 85th Leg., R.S. 153-176 (Tex. 2017).13 While the Senate was in session during the ninth legislative day, the Senate
12 S. Res. 3, 85th Leg., R.S. (Tex. 2017) (see http://www.senate.state.tx.us/rules.php). 13 A “legislative day” may extend over more than one calendar day. Senate Rule 5 contains the order of business for a new legislative day. On the two days following Wednesday, February 1, 2017 none of the required actions that would indicate new legislative days of session took place. Instead, the Senate remained in session by motion until the receipt of committee reports, finally adjourning on 1:47 p.m. on Friday. See S.J., 85th Leg., R.S. 158-176 (Tex. 2017). This is
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Committee on State Affairs met to hold its public hearing and then passed SB 4 without
obtaining unanimous consent.
When this violation of Senate Rules was brought to the attention of the body by Senator José Menéndez through a point of order,14 Lt. Governor Patrick and his parliamentarian, in a completely unprecedented determination without support in any reported legislative precedent of the Texas Legislature or the United States Congress, told him that the body was in a state of “limbo,” and rather than ruling on the point of order, asked Sen. Menéndez to withdraw it. Id. ¶ 29. “Limbo,” whatever it may be, is not a technical term nor is it found in the Rules of the Texas Senate or in any other authority used by the Senate to determine questions of legislative procedure.15 The Senate was in session when the committee met to consider SB 4, and the committee met without unanimous consent of the Senators—a consent that Senators representing Latino communities would have certainly withheld. Again, this kind of disregard for wellestablished Senate rules shows that SB 4 was backed by a nefarious purpose, and its proponents
would see it passed, whatever it took.
One might wonder why the Senate would not simply adjourn on February 1, since the decision to stay in session on a single day precluded the hearing on SB 4 from being in
appropriate given that proper practice dictates that a legislative day continues until terminated by adjournment. See 71 S. J. 2d C.S. 554 (1989), 5 Hinds § 6738-6739. 14 “A point of order is an objection that the pending matter or proceeding is in violation of a [Senate] Rule.” See Hugh L. Brady, TEXAS HOUSE PRACTICE ¶ 22 (3d ed. newly rev. 2017). 15 Senate Rule 20.01 provides that “[t]he President of the Senate [e.g., the Lt. Governor] shall decide all questions not provided for by the standing Rules of Order of the Senate and Joint Rules of Order of both branches of the Legislature, according to parliamentary practice laid down by approved authors.” This includes rulings by prior Lt. Governors; prior rulings of the Texas House Speaker; Congressional practice as reflected in, among other, the U.S. Senate Manual, Jefferson’s Manual, and published Congressional precedents; and Mason’s Manual of Legislative Procedure. See Hugh L. Brady & Ross O. Peavey, TEXAS SENATE PRACTICE ¶ 482 (1st ed. newly rev. 2017)
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compliance with Senate rule 11.13, and the Senate did not convene or handle any business on February 2. Perhaps tellingly, on the final page of the 25-page Senate Journal for that legislative day (which spanned three full calendar days) was the receipt of the committee report for SB 4. See S.J., 85th Leg., R.S. 153-176 (Tex. 2017). The receipt of that report on Friday, while the Senate was in session, allowed SB 4 to be placed on the intent calendar by the Lt. Governor on the following Monday, again expediting the process for the bill at all costs and disregarding legislative rules.16
(ii) The House of Representatives Process The serious departures from the regular legislative process continued in the House of Representatives. On April 24, the Chairman of the Calendars Committee sought full House approval of a so-called “calendar rule” for SB 4 that would require Members to pre-file their amendments before SB 4 was laid before the House for debate; this was an attempt to cut-off meaningful policy discussions regarding the bill.17 ECF 56-4, ¶¶ 37-38; Tr. 164:15-23.
The proposed rule was called up for a vote just two days before SB 4’s scheduled consideration date; given the short time-frame, it would give Members roughly 24 hours to draft and file amendments to a committee substitute that had rocketed out of Calendars. Since the House committee substitute was different from the Senate version, Members would have to work specifically with the House version to propose appropriate amendments. The hoped-for effect was to drastically reduce the number of ameliorative amendments that could be proposed and
16 Senate Rule 5.14 states that any Senator “who desires [to place a bill on the intent calendar] shall give notice of such intent to the Secretary of the Senate, in a manner specified by the Secretary, not later than 3:00 p.m. on the last preceding calendar day that the Senate was in session.” 17 A “calendar rule” is typically sought to control and prepare for debate of the bill in question, as well as to pre-select amendments and their order.
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shorten floor debate. It is exceedingly rare for a Calendars rule to be proposed for bills that are not related to tax, appropriations, and redistricting matters, which is why the rule for SB 4 required two-thirds of the Members present and voting for approval; it did not receive the required vote and thus failed. ECF 56-4, ¶ 38. The vote was reconsidered, and it failed again. Id. In order to reconsider a vote under Texas House Rules, a Member who was on the prevailing side (here one of the Members who opposed the calendar rule) must request the reconsideration. In this case, Representative Tony Tinderholt requested reconsideration. See H.J., 85th Leg., R.S. 1772-1778 (Tex. 2017). He and two other Members of the self-proclaimed “Freedom Caucus” (Representative Kyle Biedermann and Representative Briscoe Cain) each switched their vote upon reconsideration to support the calendar rule on SB 4. Id. This sudden change of heart to support the House leadership’s attempt to limit debate on SB4 came from an unlikely source— namely, Members who typically opposed the leadership’s attempts to limit amendments directly and vocally.18 It is noteworthy that on SB 4, these Members found that, upon review, they supported this unique rule suspension. Again, the efforts to ram SB 4 through the process disregarded long-established rules and practice.
Regarding the House floor debate on SB 4, it should be noted that, in a radical departure from his current practice, the Speaker of the House presided over almost the entire debate himself and personally made the rulings on practically all of the points of order raised. Ordinarily, the Speaker presides intermittently during the day, with temporary presiding officers handling the vast bulk of the work. This departure shows the House leadership’s clear intention to ensure the passage of SB 4 at any cost.
18 See Patrick Svitek, House GOP Tensions Come to a Head with ‘Mother’s Day Massacre’, TEXAS TRIBUNE, May 12, 2017, https://www.texastribune.org/2017/05/12/house-gop-tensionscome-head-mothers-day-massacre/.
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Rep. Hernandez testified at the hearing that she had never seen a bill with so much opposition pass so quickly through the legislative process, Tr. 161:20-162:17, a substantial departure from normal procedure. Ex. P-213 at ¶¶ 19-20. She further explained the summary dismissal of over seventy ameliorative amendments to SB 4 without any individual consideration. Tr. 163-164. Defendants attempt to portray this as “a courtesy to opponents of SB 4,” because the House could have, instead, simply “foreclose[d] any vote on the pending amendments themselves.” ECF 91 at 100. But Defendants miss the point: the significance of the collective rejection of these amendments is that dozens of ameliorative amendments were not considered individually at all, regardless of what specific procedure was used to achieve that result. This was one of the most egregious departures from normal procedure in the House consideration of SB 4, and one that Rep. Hernandez “had never seen … utilized before” in her twelve years as a State Representative. Tr. 163:14.
Even at this early stage of the case, there is substantial evidence of discriminatory intent: deviations from normal procedure that accompanied recent “sanctuary cities” bills; huddles of Members of the Legislature facing huddles of racial-minority Members; heckling of Latino Members by racial-majority Members; grossly disproportionate opposition to SB 4 compared to its support; failure to enforce the House and Senate Rules and established practices; and wholesale disregard for ameliorative amendments offered by Latino Members. See Ex. 213 at ¶¶ 65-71. All this evidence indicates that SB 4 was passed with discriminatory intent, and Plaintiffs have a substantial likelihood of success on their Fourteenth Amendment Equal Protection claim.
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II. SB 4 Violates the First Amendment and Defendants Have Sued TOPEF in Retaliation. A. Testimony at the Preliminary Injunction Hearing confirmed that SB 4 will impermissibly restrict public servants’ freedom of speech. The evidence presented at the injunction hearing further illustrated that SB 4 will
significantly and unconstitutionally chill and restrict the freedom of speech of elected officials such as testifying witnesses El Paso County Attorney Jo Anne Bernal, Bexar County Judge Nelson Wolff, and San Antonio City Councilmember Rey Saldaña.
SB 4 prohibits local entities—including all their officers and employees—from “endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” Tex. Gov. Code § 752.053(a)(1). In addition to being unconstitutionally vague, see ECF 56-1 at 25-27, this prohibition chills the political speech of elected officials, which is a “a basic tenet of our constitutional democracy.” Cox v. Louisiana, 379 U.S. 536, 552 (1965).
As El Paso County Attorney Jo Anne Bernal explained, SB 4 would prohibit her “essentially from speaking out against such a practice [of not enforcing immigration laws] because the bill … prohibits [her] from taking any action or speaking out against it or it prohibits [her] from endorsing any conduct which is contrary to the provisions of the bill.” Tr. 16:2-7. Judge Wolff similarly described the “chilling effect on what [he] would be able to say” during the next re-election campaign regarding immigration enforcement, if SB 4 goes into force. Tr. 217:1-7. Laredo Rd. Co. v. Maverick Cnty., 389 F.Supp. 2d 729, 748, n.20 (W.D. Tex. 2005) (preliminarily enjoining ordinance that limited protected speech). Councilmember Saldaña highlighted “one of the most concerning” aspects of SB 4 for him as an elected official:
[I]t could be very difficult for me to withdraw my voice from a community that has given me my seat to speak on their behalf, and my experience has been that
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they have wanted me to speak up and be their voice. …[M]y side of town never had that voice, so it is incredibly important that the speech that I might have would be restricted in SB 4. We need to be able to speak our minds and speak our opinions; that means we are endorsing through public statements or adopting through our city budget.” Tr. 245:11-20. If allowed to go into force, SB 4 will irreparably harm the constitutionally-protected rights of these and other public officials. Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Despite Defendants’ attempts to argue away SB 4’s impermissible, content-based restraint on public officials’ freedom to express their views, the law is already chilling that constitutional freedom.
B. Defendants retaliated against TOPEF in violation of the First Amendment Defendants appear to—deliberately or not—misapprehend TOPEF’s First Amendment retaliation argument. ECF 91, at 45-47. Defendants argue that the State’s suing TOPEF in Travis County is not retaliation because Texas filed that “action before the El Paso plaintiffs’ lawsuit here.” ECF 91, at 45 (emphasis in original). But the relevant point in time for the retaliation analysis is not when Texas filed its lawsuit in Travis County, but rather when it sued TOPEF— and Defendants concede, as they must, that Texas sued TOPEF (or, as Defendants characterize it, “add[ed] as defendant”) after TOPEF had engaged in protected First Amendment speech by challenging SB 4 in this Court. See, e.g., Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997); Harrison v. Springdale Water & Sewer Commission, 780 F.2d 1422, 1428 (8th Cir. 1986). In other words, the retaliatory action is not the filing of the original lawsuit in Travis County, but rather adding TOPEF as a defendant in that action.19
19 See also Colson v. Grohman, 174 F.3d 498, 508 (5th Cir.1999) (“[T]he First Amendment prohibits not only direct limitations on speech but also adverse government action against an individual because of her exercise of First Amendment freedoms.”); Pickering v. Board of Educ., 391 U.S. 563, 574–75, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (holding impermissible under the First Amendment the dismissal of a high school teacher for speaking on “issues of public importance”).
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Defendants are correct that retaliation is actionable when it is the “but-for cause” of official action. Hartman v. Moore, 547 U.S. 250, 256 (2006). And here, TOPEF challenging SB 4’s constitutionality was the but-for cause of Texas suing TOPEF in Travis County: Put simply, had TOPEF not challenged SB 4 in this Court, Texas would not have sued TOPEF in Travis County. Defendants acknowledge as much when they explain that Texas “amended its complaint [in Travis County] to add as defendants entities that had challenged SB 4. …” ECF 91, at 45. That is, Texas sued TOPEF for no reason other than that TOPEF had exercised the petition rights of itself and its members by accessing the federal courts.
Despite Defendants’ attempts to downplay the significance of their lawsuit against TOPEF, they cannot avoid the crucial fact that confirms the retaliatory nature of their actions: under no circumstances can TOPEF possibly violate SB 4, even if it were in force today. TOPEF is simply not an entity regulated by SB 4, and thus could not violate it. Tex. Gov. Code, § 752.051(5) (definition of “local entity”).20 There is no scenario under which TOPEF may be deemed to violate this law, and Texas’ lawsuit against TOPEF is thus mere retaliation.
III. Plaintiffs’ Fourth Amendment Claims are Properly Brought and SB 4 will Result in Unconstitutional Seizures. A. Facial challenges to the Fourth Amendment are permitted and can succeed. In relation to SB 4’s ICE detainer mandate, Defendants insist that Plaintiffs cannot
succeed on their facial challenge because Fourth Amendment rights are personal and “may not be asserted vicariously.” ECF 91 at 67; see also Tr. 247:18. But Defendants ignore Supreme
20 Indeed, in the context of the Travis County litigation TOPEF has notified Defendants that their lawsuit against TOPEF is not only frivolous but may also subject them to sanctions under Federal Rule of Civil Procedure 11(b), which TOPEF has reserved the right to seek.
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Court precedent directly on point that explicitly allows facial challenges on Fourth Amendment grounds. City of Los Angeles v. Patel, 135 S. Ct. 2443, 2450, 192 L.Ed.2d 435 (2015).
In Patel, the Court “clarif[ied] that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.” Id. at 2449. “Any claim to the contrary reflects a misunderstanding” of Supreme Court jurisprudence in this regard. Id. (citing Sibron v. New York, 392 U.S. 40 (1968)). Particularly where, as here, members of Plaintiffs TOPEF and MOVE would be subject to and harmed by these unreasonable seizures, Plaintiffs clearly have standing to challenge SB 4 facially on Fourth Amendment grounds. Id. Defendants’ argument that Plaintiffs cannot mount a facial challenge to SB 4’s ICE detainer mandate is simply contrary to the law. Patel, 135 S.Ct. at 2450-51.
B. SB 4 violates the Fourth Amendment Defendants further assert—and argued at the hearing—that SB 4 cannot, on its face, violate the Fourth Amendment because there may be some constitutional applications of its detainer mandate. ECF 91 at 71; Tr. 247:18. Essentially, Defendants claim that because some ICE detainer requests may meet the probable cause standard, SB 4’s mandate that all detainer requests be honored will result in some seizures that comply with the Fourth Amendment, and therefore SB 4 cannot be facially enjoined.21 Defendants err.
21 In this regard, Defendants mischaracterize what SB 4 does. They claim “SB4 merely requires that local officials comply with federal immigration detainer requests that are backed by a finding of probable cause by a federal official and are consistent with the Fourth Amendment.” ECF 91, at 71. But the text of SB 4 contains no such requirements of probable cause or consistency with the Fourth Amendment. What SB 4 does require is that every law enforcement agency in the State “comply with, honor, and fulfill any request made in the detainer request provided by the federal government.” Tex. Code Crim. P. § 2.251(a)(1) (emphasis added). Further, the definition of “immigration detainer request” makes clear that SB 4 contemplates compliance with requests beyond formal detainer requests, and even informal requests, since it defines detainer requests as “including”—and therefore not limited to—an “ICE Form I-247
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When analyzing a facial challenge to a statute, courts look at whether the law is unconstitutional “in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). Importantly, however, “when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct.” Patel, 135 S.Ct. at 2451. In facial Fourth Amendment challenges, “the proper focus of the constitutionality inquiry is searches [or seizures] that the law actually authorizes, not those for which it is irrelevant.” Id. That is, if a seizure would take place regardless of SB 4’s detainer mandate, then that seizure is not an “application” of the law for purposes of a facial analysis. The law “is measured for consistency with the Constitution by its impact on those whose conduct it affects… not [on those] for whom the law is irrelevant.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 894 (1992).
Here, Defendants would have the Court focus the SB 4 analysis on ICE detainer request detentions supported by either criminal probable cause or by a warrant—i.e., those for which SB 4 is irrelevant. See ECF 91 at 71. A detention based on criminal probable cause would be constitutional, and a law enforcement agency may choose to conduct the detention based on that probable cause, irrespective of SB 4. The constitutional “applications” that Defendants insist prevent facial relief against SB 4 “are irrelevant to [the] analysis because they do not involve actual applications of the statute.” Patel, 135 S.Ct. at 2451.
In reality, however, SB 4 requires much more than that: it requires strict compliance with any and all detainer requests, formal or informal, regardless of whether they are backed by criminal probable cause or a warrant. Tex. Code Crim. P. § 2.251(a)(1); Tex. Gov. Code §
document or a similar or successor form.” Tex. Gov. Code § 772.0073(a)(2) (definition of “immigration detainer request”). See also Tr. 39:17-21.
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772.0073(a)(2).22 Those are the applications of the law that are relevant to the facial analysis, not the ones that comport with constitutional requirements. And in all of those applications, SB 4 will mandate seizures that violate the Fourth Amendment, and therefore can and should be facially enjoined.23
IV. SB 4 is Unconstitutionally Vague. Defendants also claim that SB 4 cannot be invalidated on vagueness grounds because the
law is not vague “in all applications.” ECF 91 at 33-34 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). As Defendants admit, that standard applies only when a statute does not implicate constitutionally-protected conduct. Id. at 34. But here, SB 4’s vagueness implicates multiple constitutionally protected rights: public officials’ freedom of speech and would-be detainees’ right to be free from unreasonable seizures, among others. ECF 56-1 at 23, 31. Thus, Defendants’ claim that SB 4 must be vague in all its applications in order for this Court to enjoin it must be rejected.
V. SB Will Irreparably Harm Plaintiffs. As previously explained, SB 4 will inflict irreparable injury on Plaintiffs as a matter of
law. Elrod, 427 U.S. at 373 (plurality opinion); De Leon v. Perry, 975 F. Supp. 2d 632, 663
22 The only purported exception to complying with an ICE detainer request applies when the person being detained provides “proof that the person is a citizen or the United States or that the person has lawful immigration status….” Tex. Code Crim. P. § 2.251(b). As Plaintiffs have explained, that exception is so vague and impractical so as to be nearly meaningless. ECF 56-1 at 27-30. 23 Further, Defendants’ logic, if correct, “would preclude facial relief in every Fourth Amendment challenge to a statute” authorizing detentions without requiring a warrant or probable cause. Patel, 135 S.Ct. at 2451. That is reason alone to reject Defendants’ argument. See id. Plaintiffs incorporate by reference their previous arguments and allegations regarding SB 4’s violation of the Fourth Amendment. See ECF 56-1 at 31-33.
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(W.D. Tex. 2014), aff’d sub nom. De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). The testimony presented at the injunction hearing illustrated some of those harms concretely.
As the elected County Attorney for El Paso County, Jo Anne Bernal is the primary legal advisor to County entities, and her statutory duties include obtaining protective orders for victims of domestic violence, sexual assault, harassment, and stalking. Tr. 9:7-8, 13-23. El Paso County has adopted a written policy prohibiting its personnel from enforcing civil immigration law. Tr. 10:15-21, 11:4-12. The County adopted this policy exercising its policing discretion, and because based on El Paso’s local prerogatives, such a policy strengthens bonds of trust between law enforcement and the community. Tr. 11:13-12:9. Similarly, Plaintiff and County Sheriff Richard Wiles’s declaration, offered at the hearing, provides additional examples of irreparable injuries Plaintiffs will suffer if SB 4 is not enjoined, including the destruction of the chain of command in the Sheriff’s Office and the frustration of El Paso County’s duty to protect the El Paso community. Ex. P-214, ¶ 13-15. Once this trust is breached—such as when one officer asks about a victim’s immigration status—“there really is no way to repair it.” Tr. 16:12.
Moreover, as the ICE arrest incident at the El Paso courthouse showed, immigration enforcement in County facilities has already had a chilling effect on the number of victims seeking protective orders. Tr. 14:10-15:9. If SB 4 goes in force, victims will now fear every Sheriff’s deputy and County employee they encounter at the courthouse, Tr. 15:10-16, and County Attorney Bernal and Sheriff Wiles will not be able to remedy that injury to community safety—the very safety they took an oath to protect. Tr. 16:12. SB 4 will injure Plaintiffs irreparably and should therefore be enjoined.
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CONCLUSION
For the foregoing reasons, Plaintiffs have a substantial likelihood of success on the merits
and respectfully request this Court to enjoin SB 4 in its entirety.
Respectfully submitted,
/s/ Efrén C. Olivares Efrén C. Olivares
TEXAS CIVIL RIGHTS PROJECT Efrén C. Olivares Texas Bar No. 24065844 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org
Mimi Marziani State Bar No. 24091906 1405 Montopolis Drive Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org
Attorneys for Plaintiffs TEXAS ORGANIZING PROJECT EDUCATION FUND and MOVE SAN ANTONIO
GARZA GOLANDO MORAN, PLLC Jose Garza Attorney-In-Charge garzpalm@aol.com Texas Bar No. 07731950 Michael Moran michael@ggmtx.com State Bar No. 2409285 Martin Golando Martin.golando@gmail.com State Bar No. 24059153 115 E. Travis St., Ste. 1235
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Case 5:17-cv-00404-OLG Document 149 Filed 07/10/17 Page 23 of 23 San Antonio, Texas 78205 (210) 892-8543 Attorneys for Plaintiffs EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY; and JO ANNE BERNAL, COUNTY ATTORNEY OF EL PASO COUNTY
CERTIFICATE OF SERVICE I certify that, on July 10, 2017, I filed the foregoing Plaintiffs El Paso County, et al.’s PostHearing Brief in Support of their Application for Preliminary Injunction via the Court’s ECF/CM system, which will serve a copy on all counsel of record.
/s/ Efrén C. Olivares Efrén C. Olivares
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 Case 5:17-cv-00404-OLG Document 152 Filed 07/10/17 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al., §

Plaintiffs,

§

§

v.

§

§

THE STATE OF TEXAS, et al.

§

Defendants.

§

§

CIVIL ACTION NO. 5:17-cv-00404-OLG

CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINITFFS’ APPLICATION FOR PRELIMINARY INJUNCTION

Now comes the City of Dallas (“Dallas”), and files this supplemental brief in support of

the Plaintiffs’ application for preliminary injunction and would show the Court the following:

I. Summary

SB4 becomes effective as Texas law on September 1, 2017. Dallas joins in support of the

various Plaintiffs’ and Intervenors’ applications for preliminary injunction (see El Cenizo plaintiffs

ECF Nos. 24, 24-1; San Antonio plaintiffs, ECF No. 55, 77, 77-1 to 77-8; El Paso County plaintiffs,

ECF Nos. 56, 56-1-56-7; City of Austin plaintiff, ECF Nos. 57, 57-1 to 57-18; Travis County

plaintiffs, ECF Nos. 58, 58-1). SB4 is a mandate by the Texas legislature to local governments to

enforce federal immigration law, to remain silent and not criticize federal immigration law, and to

ignore others’ constitutional rights. Through its commands, SB4 strips local governments of

discretion, shifts the cost of immigration law enforcement to local governments, and exposes local

governments to liability for complying with SB4. SB4 is unconstitutional under the United States

and Texas Constitutions. Plaintiffs and all local governments, including Dallas, will suffer

irreparable harm if the Court does not enjoin the application and implementation of SB4.

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II. Background A. The Plaintiffs
There are five groups of Plaintiffs consisting of various local governments, elected officials, and civil rights, educational, and service organizations who requested a preliminary injunction. Initially, there were three separate lawsuits but the cases were consolidated.
The El Cenizo plaintiffs consist of the City of El Cenizo; its mayor, Raul Reyes; Maverick County Sheriff Tom Schmerber; Maverick County Constable Marion Hernandez; and Texas State League of United Latin American Citizens (“LULAC”) (a non-profit civil rights organization). (ECF No. 31).
The El Paso plaintiffs consist of El Paso County, El Paso County Sheriff Richard Wiles, El Paso County Attorney Jo Anne Bernal, the Texas Organizing Project Education Fund (“TOPEF”) (an education organization), and MOVE San Antonio (“MOVE”) (a non-partisan nonprofit organization). (ECF No. 51).
The San Antonio plaintiffs include the City of San Antonio; its Council-member Rey Saldana; the Texas Association of Chicanos in Higher Education (“TACHE”) (a Texas-wide professional association); La Union Del Pueblo Entero (“LUPE”) (a community union); and Workers Defense Project (“WDP”) (a low-income workers membership-based organization). (Civil Action No. 5:17-CV-00489-OLG, ECF No. 1) .
The Austin plaintiff is the City of Austin. (ECF No. 37). The Travis County plaintiffs consist of Travis County, Travis County Judge Sarah Eckhardt, and Travis County Sheriff Sally Hernandez. (ECF No. 78).
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The City of Dallas, the City of Houston, and the Texas Association of Hispanic County Judges and County Commissioners have also intervened as plaintiffs. (ECF Nos. 96, 139, 141). Collectively, the Plaintiffs and Intervenors are referred to as “the Plaintiffs.”
B. The Defendants Defendant State of Texas is a sovereign state of the United States of America. Defendant
Greg Abbott is Texas’s Governor and Defendant Ken Paxton is Texas’ Attorney General and both are responsible for executing and defending the laws of the State of Texas and its Constitution. Hereafter the Defendants are collectively referred to as “the State Defendants.”
The United States has filed a statement of interest. (ECF No. 90). C. The Texas Law at Issue, SB4
The Texas legislature enacted and the Governor signed an act adding to and amending Texas statutes, generally referred to as Senate Bill Number 4 (“SB4”). Act of May 7, 2017, 85th Leg., R. S., S.B. 4. SB4 has two general prohibitions, a so-called “anti-sanctuary” provision and a provision requiring mandatory compliance with any federal immigration detainer request. The terms of SB4 have been detailed in earlier filings by all parties.
III. Plaintiffs’ Have Standing to Litigate the Constitutionality of SB4 Federal courts have no subject-matter jurisdiction unless a case or controversy is presented by a party with standing to litigate. See Bank of America Corp. v. City of Miami, Fla, 137 S.Ct. 1296, 1302 (2017). The three requirements for standing are: (1) a plaintiff must have suffered an injury in fact which is concrete and particularized, actual or imminent, and not conjectural or hypothetical; (2) a plaintiff must show a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The
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State Defendants have not made a facial or factual challenge as to the standing of any of the plaintiffs.1 Nonetheless, Dallas addresses that the pleadings and the evidence establish the Plaintiffs’ standing.
An injury in fact can be established through an actual or a threatened injury resulting from the putatively illegal action. Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973). A plaintiff may demonstrate standing to enjoin a statute before it becomes effective by showing “a credible threat of enforcement” or a “well-founded fear that the law will be enforced against them.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392-93 (1988). A plaintiff does not have to expose itself to liability before bringing suit to challenge the constitutionality of a law threatened to be enforced. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). While a plaintiff’s own action of not violating the questioned law may eliminate an imminent threat of prosecution, it does not eliminate Article III jurisdiction. Id. Standing exists if any perceived threat to the plaintiff is “sufficiently real and immediate to show an existing controversy.” O’Shea v. Littleton, 414 U.S. 488, 496 (1974). Furthermore, a statute restricting First Amendment rights may cause harm without any enforcement by “chilling speech.” American Booksellers, 484 U.S. at 393 (“[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.”).
Apart from First Amendment concerns, the dilemma posed by the coercion of putting the challenger to the choice between abandoning its rights or risking prosecution “is a dilemma that it
1 The State Defendants contend that the Plaintiffs do not have standing to complain about the Fourth Amendment. (ECF No. 91 at 67-68). The claim is addressed below. They also claim San Antonio and its officials lack standing regarding the Contract Clause claim. (ECF No. 91 at 106-107). However, the claim is asserted by TACHE. (Civil Action No 17-cv-489, ECF No. 1 at 34) CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 4

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was the very purpose of the Declaratory Judgment Act to ameliorate.” MedImmune, 549 U.S. at 129. Injury may be inflicted by “the mere existence and threatened enforcement” of a statute. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384–85 (1926). Where it is not fully clear what conduct is proscribed, a well-founded fear of enforcement may be based in part on a plaintiff’s reasonable interpretation of what conduct is proscribed. American Booksellers, 484 U.S. at 392. Finally, the presence of one party with standing is sufficient to satisfy Article III’s case or controversy requirement. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n. 2 (2006).
All of the local governments and the elected officials have articulated in their pleadings and the evidence establishes a well-founded fear that SB4 will being enforced against them. For example, several of these plaintiffs and their representatives alleged and testified about the confusion over the terms, duties, and restrictions contained within in SB4 and do not know how to comply with its terms and were fearful of some type of punitive measures be taken.2 Additionally, they were afraid of being prosecuted for “endorsing” a policy that prohibited or materially limited the enforcement of immigration law and that they could be prosecuted for merely voicing opinions.3 Further, the local governments and officials alleged and presented evidence that compliance with SB4 will force them to disregard the constitutional rights of others and expose
2 (Pleadings: ECF No. 31 at 12; ECF No. 37 at 14-15; ECF No. 51 at 5, 21, 27; ECF No. 78 at 4-5, 11-12; ECF No. 96 at 4, 18-19; 139 at 28-29; Civil Action No. 17-CV-489, ECF No. 1 at 11-15, 33) (Evidence: Transcript 218-219; Plaintiffs’ Exs. P-4 (pp.2-4); P-5 (pp. 3-4); P-7 (pp. 6-7); P-101 (pp. 9,10, 13-14); P306 (p. 6); P-311 (¶12); P-413 (pp. 4,5)). 3 (Pleadings: ECF No. 31 at 2-3, 11; ECF No. 37 at 15; ECF No. 51 at 20, 24, 25; ECF No. 78 at 4-5, 11; ECF No. 96 at 4; 19; 139 at 26; Civil Action No. 17-CV-489, ECF No. 1 at 3-4, 29-31). (Evidence: Transcript 16, 214-218, 244-245; Plaintiffs’ Exs. P-4 (pp. 2,3); P-5 (p. 3); P-7 (p. 4); P-101 (pp. 14-15); P303 (p. 8); P-305 (¶¶ 12-14); P-306 (pp. 4-6); P-413 (pp. 8-9). CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 5

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the local governments and their public servants to liability for the denial of fundamental rights.4 The local governments and officials alleged and presented evidence that the local governments had been already harmed and would be further harmed by SB4’s implementation because of adverse effects on law enforcement; on the local and State economies; on the community because of decreased participation in health services, decreased attendance at schools, and decreased participation in social programs; will cost millions of dollars to implement; and will cause the loss of tax revenues.5
A well-founded fear is shown because SB4 is aimed at the governmental plaintiffs, who, if their interpretation of SB4 is correct, will either have to stand on their rights and suffer punitive measures or will have to concede to the violation of their duties and their own constitutional rights, violate the rights of others, incur costly compliance measures, and suffer resulting damages. See American Booksellers, 484 U.S. at 392. The mere existence of SB4 and its punitive measures are sufficient to establish a well-founded fear. Furthermore, the evidence suggests that the State Defendants intend to enforce SB4 to the fullest. Prior to SB4’s enactment, the Governor withheld funding to Travis County because of his determination that it was a so-called sanctuary jurisdiction. (ECF No. 37 at 4[¶ 14]; ECF No. 78 at 8-9[¶¶ 32-33]; Civil Action No. 17-cv-489, ECF No. 1 at 15[¶ 58]). Also, the State Defendants attempted to launch a preemptive lawsuit
4 (Pleadings: ECF No. 31 at 13); ECF No. 78 at 12); ECF No. 96 at 4; 14; Civil Action No. 17-CV-489, ECF No. 1 at 10-11, 13, 31-33). (Evidence: Transcript 16-17; Plaintiffs’ Exs. P-1 (pp. 2-3); P-4 (p. 5); P-7 (p. 7); P-101 (pp. 10, 13); P-201 (pp. 4-5); P-303 (p. 4); P-305 (¶¶ 5-6); P-306 (pp. 7-8); P-311 (¶¶7-8); P409 (pp. 1, 2, 4); P-413 (pp. 5, 8). 5 (Pleadings: ECF No. 31 at 2, 4-5, 8-9; ECF No. 37 at 9-12; ECF No. 51 at 5, 11-12; ECF No. 78 at 10; ECF No. 96 at 4; 13-18; 139 at 13-20; Civil Action No. 17-CV-489, ECF No. 1 at 17, 23-27, 34). (Evidence: Transcript 13-14, 181-183, 188-189, 191-193, 207, 211-212, 219-222, 241-244; Plaintiffs’ Exs. P-3 (pp. 24); P-4 (pp. 3, 4, 5); P-5 (pp. 4-5); P-7 (pp. 4-6); P-9 (¶¶ 9-18); P-101 (pp. 4-5, 10-13); P-201 (pp. 5-7); P205 (pp. 3-5); P-303 (p. 3-5, 8); P-305 (¶¶ 8-11); P-306 (pp. 8-13); P-311 (¶¶ 4-7); P-314 (p. 2); P-315 (¶ 6); P-401 (pp. 3-8); P-409 (pp. 2-3); P-412 (p. 3); P-413 (pp. 7-8).
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against some of the Plaintiffs to impose the State Defendants’ interpretation of SB4 just asit went into effect. (Ex. P-201 at 4; ECF Nos. 14, 14,-1; 22, 22-1, 32-1; 91 at 28). The Plaintiffs consisting of local governments and the elected officials have all suffered an injury in fact.
Additionally, the various non-governmental entities, LULAC, TOPEF, MOVE, TACHE, LUPE, and WDP, have asserted and presented evidence that their members will have SB4 enforced against them or they will be harmed as local governments are forced to comply with SB4’s requirements and as a result all of the non-governmental entities have been harmed. (See e.g. ECF No. 31 at 6-7, 14-15; ECF No. 51 at 2-3, 7-8, 18-20; Civil Action No. 17-cv-489, ECF No. 1 at 4, 27-28, 30-32, 34; Plaintiffs’ Exs. P-6, P-203, P-204, P-306, P-307, P-308). These entities have also suffered an injury in fact. An association has standing to bring suit on behalf of its members when: its members would otherwise have standing to sue in their own right; the interests it seeks to protect are germane to the organization's purpose; and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). These non-governmental entities have standing.
The pleadings and evidence also establish that SB4’s implementation and enforcement are the cause of the current injuries suffered by the Plaintiffs and the cause of the threatened injuries. Plaintiffs’ injuries will be redressed by a favorable decision because enforcement of SB4 will be enjoined, SB4 will be declared unconstitutional, and the injuries and harm caused by it will cease. Standing exists for seeking pre-enforcement declaratory and injunctive relief.
IV. Standards for Preliminary Injunction For any plaintiff to obtain a preliminary injunction, it must establish (1) a likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4) the
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grant of an injunction will not disserve the public interest. Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014). The purpose of a preliminary injunction is to protect the status quo and to prevent irreparable harm until the respective rights of the parties can be determined during a trial on the merits. City of Dallas v. Delta Air Lines, Inc., 847 F.3d 279, 285 (5th Cir. 2017). The requirements for a preliminary injunction have been satisfied.
V. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 is Unconstitutional Because It Is Preempted by Federal Law
A. The standard for preemption. The Supremacy Clause provides that federal law “shall be the supreme Law of the Land.”
U.S. Const. art. VI, cl. 2. Under this authority, Congress has the power to preempt state law. Arizona v. United States, 132 S.Ct. 2492, 2500 (2012). If Congress does not expressly command that state law is preempted, it may still do so in two different ways, field preemption and conflict preemption. Id., 132 S.Ct. at 2501.
First, with field preemption, states and localities may not regulate conduct in a field that Congress has determined “must be regulated by its exclusive governance.” Id. “The intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive ... that Congress left no room for the States to supplement it’ or where there is a ‘federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, (1947)). It does not matter that state law does not conflict with federal law or that its intent was to complement federal law. Id., 132 S.Ct. at 2502-2503 (“where Congress occupies an entire field … even complementary regulation is impermissible”).
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Second, with conflict preemption, state and local laws are preempted “when they conflict with federal law.” Id. “This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Id. (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)). For those areas that are conflict preempted, the conflict may arise from the imposition of different penalties than Congress selected for the same conduct. Even though a state or local law “attempts to achieve one of the same goals as federal law … it involves a conflict in the method of enforcement.” Arizona, 132 S.Ct. at 2505.
B. Federal immigration law preempts state immigration law. The federal government has “well-settled” and “broad, undoubted power” concerning
immigration and aliens. Arizona, 132 S.Ct. at 2498. Immigration policy impacts trade, investment, tourism, diplomatic relations, the hopes of those seeking protection in the United States, the treatment of American citizens abroad, communications with other nations, and foreign relations. Id., at 2498-99. Federal governance of immigration and aliens is “extensive and complex” and “there are significant complexities involved in enforcing federal immigration law.” Id. at 2499, 2506. Congress and the courts have already concluded that large swaths of “immigration law” have been preempted by federal law. For example, these include but are not limited to the following:
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1. express preemption of any State or local imposing civil or criminal sanctions, with certain exceptions, upon those who employ, recruit, or refer employment of unauthorized aliens, 8 U.S.C. § 1324a(h)(2);
2. field preemption of the power to grant permission for an alien to remain or be expelled. U. S. v. Alabama, 691 F.3d 1269, 1293 (11th Cir. 2012).
3. field preemption regarding employment of illegal aliens, Arizona, 132 S.Ct. at 2503-2305;
4. field preemption of detention or arrest of aliens for violation of immigration laws, id. at 2506-2507;
5. field preemption of registration system of aliens, Hines, 312 U.S. at 67; 6. conflict preemption of creating criminal offenses for housing of non-citizens,
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 529-30 (5th Cir. 2013); 7. field preemption of power to classify non-citizens including state judicial proceedings of whether landlord has leased to tenant lawfully present in the United States, id. at 536-37; and 8. field and conflict preemption of criminalizing the transporting, moving, concealing, harboring, or inducing “illegal alien” to enter a state, Ga. Latino All. For Human Rights v. Governor of Ga., 691 F.3d 1250, 1263-67 (11th Cir. 2012). Additionally, Congress granted the executive branch vast power and authority as to immigration law. Section 1103 provides that the Secretary of Homeland Security “shall be charged with the administration and enforcement of this chapter and all other laws relating to immigration” except as provided by laws that relate the powers, functions, and duties conferred upon the President, Secretary of State and Department of State. 8 U.S.C. § 1103(a)(1). It continues that he has the power and duty to control and guard the U.S. borders and boundaries from illegal entry of aliens. Id., § 1103(a)(5). Finally,
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… the Constitution requires an uniform Rule of Naturalization; Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly; and the Supreme Court has described immigration policy as a comprehensive and unified system. Texas v. U.S., 809 F.3d 134, 187-88 (5th Cir. 2015) (quotations marks, emphasis, and footnotes omitted). C. On its face SB4 is preempted because SB4 applies to all “immigration law” including those portions already found to be preempted and those that await future determination. SB4 provides that a local government or one of its officials or employees shall not “adopt, enforce, or endorse a policy” that “prohibits or materially limits the enforcement of immigration laws.” Tex. Gov’t Code, § 752.053. Violations of the state law can result in civil penalties, writs, and removal from office. Id., .055, .056, .0565. In order to determine if any part of SB4 is preempted, the analysis requires an identification of the specific component of federal law; a review of whether it imposes an express preemption, field preemption, or conflict preemption; and a comparison to the state law. PLIVA, Inc. v. Mensing, 564 U.S. 604, 611 (2011) (“Pre-emption analysis requires us to compare federal and state law.”); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). SB4 makes any analysis impossible by its inclusion of all immigration law. Much of immigration law has already been determined to be preempted, including the enforcement and compliance scheme for various portions of immigration law. SB4’s broad terms dictate compliance and new punishment for areas of the law that have already been preempted. On its face, SB4 is already preempted by Congress’ express preemption and by field and conflict preemption in those areas that the courts have already found preempted by federal law. For those areas not already
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found to be preempted, SB4’s different “method of enforcement” than provided by federal law is also preempted. As a matter of law, SB4 has been preempted.
The State Defendants attempt to re-write SB4’s broad prohibition to focus on specific portions of immigration law that they contend have not been preempted. Thus, they try to carve out and limit the preemption as to immigration law involving “the federal scheme for cooperative immigration enforcement” and the “detainer mandate.” (ECF No. 91 at 29-51). SB4’s language is not so narrow. All immigration law is subject to SB4’s control and effect regardless of preemption. There is a substantial likelihood that the Plaintiffs will prevail in finding Section 752.053 is unconstitutional as being preempted by federal law.6
D. Portions of SB4 were cut and pasted from existing federal law. One of SB4’s provisions appears to have been cut and pasted from a federal statute with
slight modifications. 8 U.S.C. § 1373(b) prohibits the restriction of sharing information regarding immigration status. Section 752.053(b)(2) is nearly identical but now creates new state law penalties for non-compliance. Congress has already occupied the field concerning the sending, maintaining, and exchanging of information on immigration status. SB4 imposes state civil penalties, writs, and removal from office even “in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Arizona, 132 S.Ct. at 2503. Further, violation of this federal law has its own set of possible federal consequences. See ECF No. 91 at 90, n. 44; Co. of Santa Clara v. Trump, Nos. 17-cv-485-WHO, 17-cv-574-WHO, 2017 WL 1459081, at **7-10 (N.D. Calif. April 25, 2017) (discussion regarding
6 The problem with § 752.053’s use of “immigration law” and preemption dovetails with the unconstitutional vagueness of SB4. How is a local government, official, or employee to know which part of immigration law not to materially limit? There is no meaningful way to know whether a compliance action is preempted until it is initiated by the State. Thus, there is no notice and no limitation of the State’s discretion. CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 12

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federal government’s contention that violation of 8 U.S.C. § 1373 may result in loss of various federal grants). Even though SB4 may attempt to achieve a goal of federal law “it involves a conflict in the method of enforcement” and is therefore conflict preempted. Arizona, 132 S.Ct. at 2505. There is a substantial likelihood that the Plaintiffs will prevail in finding Section 752.053(b)(2) is unconstitutional as being preempted by federal law.
E. SB4 is otherwise preempted by the federal law. Dallas joins the other Plaintiffs’ arguments that SB4 is field and conflict preempted by
federal law. (ECF No. 24-1 at 22-28; ECF No. 57 at 17-18; ECF No.77 at 44-49; ECF No. 144 at 3-6).
VI. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 is an Unconstitutional Limit on Free Speech
Dallas joins the argument by the other Plaintiffs that Section 752.053(a)’s blanket prohibition against any local government official or employee endorsing any policy that would materially limit immigration law violates the First Amendment. (See ECF No. 24-1 at 37-43; ECF No. 77 at 35-41; ECF No. 56-1 at 23-27; ECF No. 57 at 10-12). Any argument by the State Defendants dismissing the concerns about the term “endorse” is refuted by other language in SB4.
SB4 provides that elected or appointed officials forfeit their office if they violate Section 752.053. Tex. Gov’t Code, § 752.0565(a). This provision adds that the attorney general is to file a petition for removal if “presented with evidence, including evidence of a statement by the public officer, establishing probable grounds that the public officer engaged in conduct [violating § 752.053].” Id., .0565(b) (emphasis added). SB4 specifically identifies free speech as the evidence to justify removal from office. The “core value of the Free Speech Clause of the First Amendment” is “[t]he public interest in having free and unhindered debate on matters of public importance.”
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Pickering v. Board of Ed. Of Twp. High Sch. Dist., 391 U.S. 563, 573 (1968). A public employee's First Amendment right to free speech is violated when he is punished for “exercise of his right to speak on issues of public importance.” Id. at 574. SB4 punishes all local government officials and employees for speaking on the issue of immigration law.
Finally, the best indicator of just how the State Defendants view the term “endorse” and the broad proscriptions in SB4’s is the State’s preemptive lawsuit against some of the Plaintiffs. (See ECF Nos. 14, 14-1, 32, 32-1). As part of the basis of bringing the action, the State Defendants alleged that certain Plaintiffs were “publicly hostile” to cooperation with federal immigration enforcement. (Civil Action No. 17-cv-425, ECF No. 1 at 2[¶¶ 3-5]). Elsewhere they complained that “some local law enforcement entities and leaders voice opposition” to cooperating with federal immigration authorities. (Id. at 13 [¶ 102]). They complained that some Plaintiffs “publicly endorse and engage in patterns and practices of ignoring ICE detainer requests and not cooperating with federal officials.” (Id. at 14, 15[¶¶ 104, 112]) (emphasis added). They further complained that some Plaintiffs had “publicly pronounced” a belief that ICE detainers are unconstitutional. (Id. at 21 [¶¶ 145, 147]). They also complained that representatives of some Plaintiffs had publicly asserted that SB4 was enacted with a discriminatory purpose. (Id. at 24[¶ 175]). When the State Defendants amended the original complaint to add other Plaintiffs as defendants, they added that one of the new defendants had said SB4 was pointless and another new defendant had “alleged that SB4 is ‘dangerous and discriminatory’ and that it ‘opens up the door to racial profiling against Hispanics.’” (ECF No. 22-1 at 30[¶ 220], 31[¶ 231]). The State Defendants’ allegations in their attempted preemptive lawsuit are a stark indicator that they found protected free speech to be offensive, was part of what was sought to be curtailed by SB4, and will be relied on to prosecute violations of SB4.
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There is a substantial likelihood that the Plaintiffs will prevail because SB4 is an unconstitutional limitation on free speech.
VII. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 is Void for Vagueness
Dallas joins the argument by the other Plaintiffs that SB4 is unconstitutionally vague. (See ECF No. 24-1 at 29-37; ECF No. 77 at 58-60; ECF No. 56-1 at 27-31. Dallas presents this additional argument limited to Section 752.053(a)(1).
A. The Standard for vagueness A statute violates the Fourteenth Amendment's guarantee of due process if the statute is so
vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” Women's Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 421 (5th Cir. 2001). A statute is unconstitutionally vague if it fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited. Id. Fundamental fairness requires that persons should not be compelled to guess at their own peril as to the meaning and application of a statute. Atkins v. Clements, 529 F. Supp. 735, 743 (N.D. Tex. 1981).
A statute is also unconstitutionally vague if it is so indefinite that it allows arbitrary and discriminatory enforcement. Women's Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d at 421. If a statute is “inherently standardless, enforceable only on the exercise of an unlimited, and hence arbitrary, discretion vested in the state” then it is unconstitutionally vague. Id. Arbitrary and discriminatory enforcement of the law can only be prevented by explicit standards for those who are to enforce or apply them. Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972). “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an
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ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Id.
The degree of tolerable vagueness and the relative importance of fair notice and fair enforcement depends on whether other important constitutionally protected rights are involved. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). If the statute potentially restricts the right of freedom of speech, then the standard is more stringent. Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620 (1976); Hoffman Estates, 455 U.S. at 499. As explained by the Supreme Court,
where a vague statute abut(s) upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.
Grayned, 408 U.S. at 108–109 (quotations and citations omitted). Likewise, a stricter standard applies if the statute involves criminal or quasi-criminal
proceedings. Women's Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d at 422. The law must give persons of ordinary intelligence a reasonable opportunity to know what is prohibited so they may act accordingly because “vague laws may trap the innocent by not providing fair warning.” Grayned, 408 U.S. at 108–109.
In their response, the State Defendants reference cases involving economic regulations which involved a lesser standard. They also reference cases that hold that as part of facial challenge, the challenger must demonstrate that the law in impermissibly vague in all of its applications. (ECF No. 91 at 52-54). However, the test is to be applied to the law as it actually exists and not as the State Defendants attempt to reconstitute it. Furthermore, a law is considered
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“vague in all its applications where it subjects the exercise of a right to an unascertainable standard or if, in other words, men of common intelligence must necessarily guess at its meaning.” United States v. Clark, 582 F.3d 607, 612-13 (5th Cir. 2009) (quotation marks and citations omitted). Under that standard, SB4 is impermissibly vague in all of its applications.
B. Section 752.053 is unconstitutionally vague. The central dictate of SB4’s anti-sanctuary provision is that a local entity shall not “adopt,
enforce, or endorse a policy” under which the public entity “prohibits or materially limits the enforcement of immigration laws.” Tex. Gov’t Code, § 752.053. Violations can result in the possible imposition of significant daily civil penalties, writs, and removal from office. Id., .055, .056, .0565. The consequences for non-compliance make this provision of SB4 subject to a stricter standard of definiteness as a quasi-criminal matter. Also, the use of the term “endorse” necessarily abuts freedom of speech, requiring a stricter standard.
The initial unconstitutional vagueness starts with the definition and use of "immigration laws." The State Defendants claim it is not vague and merely reference its definition. (ECF No. 91 at 57). However, the definition only adds to the vagueness as immigration laws is defined as Texas or federal laws “relating to aliens, immigrants, or immigration, including the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).” Tex. Gov’t Code, § 752.051(2). The State Defendants’ response reflects the confusion and uncertainty as to the meaning of immigration law because local governments are left to guess what law is at issue. When arguing about preemption, the State Defendants urge that only congressional action be considered. (ECF No. 91 at 38). However, when discussing the legality of detainers from Fourth Amendment challenges, the State Defendants urge that ICE’s policy should be considered. (Id. at 67). Elsewhere, they rely on an executive order. (Id. at 90). Their arguments acknowledge that what
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constitutes “immigration law” is uncertain. For example, is “law” limited to statutes or does it include regulations in the Code of Federal Regulations; presidential orders; opinions, orders, and directives from federal officials; or caselaw? Coupled with the vagueness is that great portions of federal immigration law already preempt state law. Thus, a local government could violate SB4 by having a policy that says, because of preemption, local enforcement of that particular portion of immigration law is prohibited.
Apart from what constitutes the specific components of the law, the term “immigration laws” is equally vague and uncertain. It is a fairly accepted legislative practice for one statute to reference, incorporate, or make applicable another statute. Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927). However, there is no authority for incorporating an entire body of law. In Road District No. 1, Jefferson County, Texas, v. Sellers, Attorney General, 180 S.W.2d 138, 141 (Tex. 1944) the court, in discussing legislation by reference to other statutes, quoted with approval State v. Frear, 144 Wis. 79, 128 N.W. 1068, 1074 (1910). The court in the Wisconsin case noted that “people are obliged to obey the laws, and, in order that they may do so, they should be put in a position where they can ascertain what they are” and “a citizen should have quick and certain access to the written laws of his state so that he may know how to order his conduct.” Id. SB4 prevents people from ascertaining just what law is to be obeyed. SB4 defines immigration law as any law, Texas or federal, that relates to “aliens, immigrants, or immigration” and it provides no meaningful notice and allows arbitrary decisions as to what is or is not immigration law and what enforcement can and cannot be prohibited or materially limited.
Likewise, the use of the undefined term “materially limits” provides no notice, guidance, or limitation. Dallas could find no other Texas statute that uses the phrase. Dallas could only locate one Texas case that used that term and its use provides no insight as to its meaning.
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Celestino v. Mid-American Indem. Ins. Co., 883 S.W.2d 310, 313 (Tex. App.—Corpus Christi 1994, writ denied). Dallas could not locate a definition or use of the term in Black’s Law Dictionary. The term is dependent on an entirely subjective criteria. The lack of definition of what constitutes “materially limits” gives no notice of what conduct is prohibited and grants the Attorney General unfettered power to decide what it means.
The vagueness problems with “endorse” have been previously explained. (ECF No. 24-1 at 39; ECF No. 56-1 at 28-29; ECF No. 77 at 38-41). However, the vagueness is not limited to that word. Even a phrase limited to barring the adopting or enforcing of a policy that prohibits enforcement of immigration law provides no notice and grants the Attorney General unlimited discretion to bring enforcement actions.
Compounding the problems with the terms “immigration law”, “materially limits”, and “endorse” are the defined terms “public entity” and “policy.” “Public entity” is defined as a local government’s governing body, its officials, or its employees. Tex. Gov’t Code, § 752.051(5). “Policy” is defined as including a formal or informal, written or unwritten, rule, order, ordinance, or policy. Id., .051(6). Plugging in the definitions results in a literal reading that an employee can violate SB4 by publicly talking to himself about endorsing a rule against any aspect of immigration law. Further, SB4 is entirely unclear as to whether a violation by an employee makes the governing body personally liable or whether a violation by the governing body make the employee personally liable. The entire lack of clarity of just who can be liable for whose conduct gives no notice of what conduct is prohibited and grants the Attorney General arbitrary power to decide who should be responsible.
Adding to the confusion, SB4 provides for the imposition of civil penalties on a local government’s governing body or one of its officials or employees for a violation of § 752.053, but
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it does not say who may bring an action for civil penalties or in what court it should be brought. Tex. Gov’t Code, § 752.056. It does not provide for any appeal. For civil penalties, there must be an intentional violation. Id., .056(a). However, an official can be removed from office because of a mere violation, there is no scienter requirement. Id., .0565.
SB4 subjects the exercise of Plaintiffs’ rights to an unascertainable standard and the Plaintiffs and the courts must necessarily guess at its meaning. United States v. Clark, 582 F.3d at 612-13. SB4 delegates enforcement to the Attorney General “on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned, 408 U.S. at 108–109.
C. SB4 conflicts with Article 2.132 of the Texas Code of Criminal Procedure. The Texas legislature previously recognized the concern and damage to law enforcement
based on claims of racial profiling. In 2001, it enacted article 2.132 of the Texas Code of Criminal Procedure which provides that the State and all counties and municipalities must adopt a detailed written policy on racial profiling. The policy must clearly define acts constituting racial profiling, strictly prohibit racial profiling, create and provide public education about a complaint process to handle accusations of racial profiling, and provide for corrective action against a peace officer found to have engaged in racial profiling. Tex. Code Crim. Pro., art. 2.132. The State Defendants rely on the statute to urge that the State disapproves of racial profiling, that SB4 does not prohibit local bans on racial profiling, and that SB4 itself prohibits unconstitutional discrimination. (ECF No. 91 at 26, 81, 83, 88, 107).
However, SB4 mandates that a local government may not formulate a policy to materially limit one of its peace officers from not inquiring into the legal status of a detained person even though such direction and policy will be necessary to comply with article 2.132’s command to
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create policies to prohibit racial profiling. The State Defendants offered no evidence disputing that the overwhelming, if not exclusive, circumstances in which a person’s immigration status will come up will be with minorities. Local governments and their officials and employees are placed in a box: comply with Article 2.132 and violate SB4 or comply with SB4 and violate Article 2.132. SB4 is unconstitutionally vague because those subject to its penalties will not know what is and is not prohibited in light of the duties imposed to create polices to prevent racial profiling.
There is a substantial likelihood that local governments will prevail because SB4 is unconstitutional.
VIII. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 Requires Unconstitutional Seizures
A. The Plaintiffs have standing to assert the Fourth Amendment. Initially, the State Defendants argue that the Plaintiffs lack standing to complain about
Fourth Amendment violations because Fourth Amendment rights are personal rights that may not be vicariously asserted. (ECF No. 91 at 67-68). The argument lacks merit.
First, the governmental Plaintiffs do not assert the rights of those who will detained. Rather, their claim is that SB4 will force the governmental Plaintiffs to cause injuries and damages to third parties who in turn seek recovery from the governmental Plaintiffs. The governmental Plaintiffs will themselves be harmed and injured by the operation of SB4.
Second, in Cornerstone Christian Schools v. University Interscholastic League, No. SA07-CA-139-FB, 2008 WL 2097477 (W.D. Tex. Apr. 1, 2008) aff’d in part and vacated in part on other grounds, 563 F.3d 127 (5th Cir. 2009), the court rejected the contention that organizational standing could not be the basis to bring a Section 1983 action based on the violations of others’ Fourth Amendment rights. Cornerstone, 2008 WL 2097477, at **5-6. The court relied on and
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quoted Heartland Academy Community Church v. Waddle, 427 F.3d 525 (8th Cir. 2005). Id. In Waddle, the court rejected the contention that Fourth Amendment rights are personal and may not be vicariously asserted in the context of a civil cases. The court observed the statement concerning personal rights was made in the context of applying the exclusionary rule in a criminal case and added that the Supreme Court has never held that associational standing was not available to allege Fourth Amendment violations. Id. at 532. The Waddle court concluded associational standing was shown for the plaintiffs in that case.7
The State Defendants do not make any claim that the Plaintiffs lack organizational standing. Those subject to detention have standing to sue in their own right. The interests the Plaintiffs seek to protect are germane to each organization's purpose. Finally, neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Third, in Barrows v. Jackson, 346 U.S. 249, 257 (1953), the Supreme Court recognized the general rule that one may not claim standing to vindicate the constitutional rights of some third party but “we believe the reasons which underlie our rule denying standing to raise another's rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained.” In Barrows, a property owner challenged a restrictive covenant against sale of realty to non-Caucasians. As the State Defendants here urge as to Fourth Amendment rights, the defendants in Barrows argued equal protection was a personal right but the Supreme Court concluded, “This description of the right as
7 As noted, the Cornerstone court concluded that associational standing was permissible for asserting Fourth Amendment claims but concluded that the plaintiff in the context of that case had failed to establish associational standing. Cornerstone, 2008 WL 2097477, at *7. CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 22

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‘personal,’ when considered in the context in which it has been used, obviously has no bearing on the question of standing.” Id. at 259. The Court continued:
The law will permit respondent to resist any effort to compel her to observe such a covenant, so widely condemned by the courts, since she is the one in whose charge and keeping reposes the power to continue to use her property to discriminate or to discontinue such use. The relation between the coercion exerted on respondent and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand. She will be permitted to protect herself and, by so doing, close the gap to the use of this covenant, so universally condemned by the courts.
Id. The governmental Plaintiffs find themselves in the same situation as the property owner in Barrows. They are forced by SB4’s coercive punitive measures to violate the constitutional rights of others and be subject to liability for such violations. Plaintiffs represent the most effective adversary against SB4’s reach, and they should also be able to protect themselves from its consequences and “close the gap” on unconstitutional seizures.
Finally, standing also exists by reason of the oaths that elected and appointed officials take to uphold the United States and Texas constitutions. (E.g. Plaintiffs’ Ex. P-409 (p. 4)). In Board of Education v. Allen, 392 U.S. 236 (1968), school board plaintiffs had challenged the constitutionality of a statute. The Supreme Court observed that the school board plaintiffs had taken an oath to support the United States Constitution, they believed a statue was unconstitutional, and they had been placed in the position of having to choose between violating their oath or refusing to comply with the statute that would likely result in their expulsion from office and the loss of state funds for their school districts. The Supreme Court held there was no doubt that the
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plaintiffs had standing. Id., 392 U.S. at 242 n. 5; see also Baker v. Wade, 743 F.2d 236, 242 (5th Cir. 1984). The Texas constitution requires all elected and appointed officials take an oath that “to the best of my ability [I will] preserve, protect, and defend the Constitution and laws of the United States and of this State.” Tex. Const., art. 16, § 1. The governmental Plaintiffs are forced to either breach their oaths and violate the Texas and United States Constitutions, including the Fourth Amendment, and incur liability and damages or refuse to comply with SB4 and suffer civil penalties, removal from office, and/or jail. The Plaintiffs have standing.
B. SB4 will cause unconstitutional seizures. SB4 forces local governments, their officials, and their employees to engage in
unconstitutional seizures. First, it deprives local governments of any discretion and requires them to “comply with, honor, and fulfill any request” in any ICE immigration detainer request. Tex. Code Crim. Pro., art. 2.251. It further requires the local government’s assistance and cooperation with federal immigration officers, including enforcement assistance. Tex. Gov’t Code, § 752.053(b)(3). SB4 then forces local governments not to adopt any rule, order, or policy that could prevent unconstitutional seizures. Id., § 752.053(a), (b)(1), (b)(3). Dallas joins the arguments presented by the other plaintiffs. (ECF No. 24-1 at 39-43; ECF No. 56-1 at 31-33; ECF No. 57 at 12-15; ECF No. 77 at 41-44).
1. The detainer mandate will cause unconstitutional seizures. This Court has determined that blind adherence to an ICE detainer request may result in an unconstitutional seizure. Santoyo v. U.S., Civil Action No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017). See also Mercado v. Dallas County, 2107 WL 169102, No. 3:15-CV3481-D, 4008-D (N.D. Tex. Jan. 17, 2017); Orellana v. Nobles Co., No. 15-3852 ADM/SER, 2017 WL 72397 (D. Minn. Jan. 6, 2017); Davila v. U.S., Nos. 2:14-070, 2:13-00070, 2017 WL 1162912
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(W.D. Penn. March 28, 2017). If the governmental Plaintiffs must follow SB4’s command and comply with all ICE requests, then they will be sued like Dallas County, and may be found liable like Bexar County. If the governmental Plaintiffs refuse to engage in unconstitutional seizures then they will be subject to complaints, litigation, writs, civil penalties, and removal from office under SB4’s punitive provisions. Even the threat or prospect of those punitive actions are chilling on local governments’ actions. A statutory command that local governments must violate the federal and Texas constitutions and engage in unconstitutional seizures cannot stand.
In a footnote, the State Defendants contend that informal detainer requests such as phone calls will not occur and SB4’s language refers only to detainer requests made in I-247 and other forms. (ECF No. 91 at 72, n. 28). SB4’s language and ICE’s history refutes both assertions.
First, Article 2.251 requires local governments to “comply with, honor, and fulfill any request made in the detainer request provided by the federal government.” Tex. Code Crim. Pro., art. 2.251(a)(1). Section 752.053(b)(3) prevents local governments from directing a peace officer from not “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” Tex. Loc. Gov’t § 752.053(b)(3). In an effort to limit the vagueness problem with this section, the State Defendants assert that the reasonableness and necessity of the assistance or cooperation is determined by ICE. (ECF No. 91 at 57). SB4 contains no limitation on the form or manner of detainer requests and the State Defendants concede that the required assistance or cooperation is determined by the federal government.
Second, caselaw establishes that ICE does, in fact, request that individuals be detained by telephone calls. For example, in Davila v. United States, Nos. 2:14-070, 2:13-cv-00070, 2017 WL 1162912, **2-3 (W.D. Pa. March 28, 2017), a local peace officer allegedly stopped a vehicle because the headlights were off. He subsequently inquired about immigration status of the driver
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and passenger and contacted ICE by telephone. Also see Davila v. Northern Regional Joint Police Bd., 979 F. Supp. 2d 612 (W.D. Pa. 2013). The ICE officer requested the officer detain both the driver and passenger and he would later fax formal detainer requests which he did. In the two opinions, the courts found that viable claims were stated against the local peace officer and the United States. Davila, 2017 WL 1162912, at *1, 16; Davila 979 F. Supp. 2d at 631-34.
In Garcia v. Speldrich, No. 13–CV–3182 (PJS/LIB), 2014 WL 3864493 (D. Minn. Aug. 6, 2014), conservation officers confronted a group of nine men hunting deer. Upon request, the men were able to produce hunting licenses and driver licenses except that one man provided a Mexican identification document listing a Minneapolis address but he had a non-resident hunting license. Based on that information, the officers contacted ICE by phone. The ICE officer talked with the nine men over the telephone and then the ICE officer directed the conservation officers to place five of the men into custody and formal detainers were subsequently issued. The men sued the conservation officers and the court denied the officers’ motion to dismiss. The court concluded a claim was stated that the officers seized the men in violation of the Fourth Amendment when they were not allowed to leave until ICE finished its questioning. Id., 2014 WL 3064493 *7.
In United States v. Argueta-Mejia, 166 F. Supp. 3d 1216 (D. Colo. 2014) aff’d 615 Fed. App’x 485 (10th Cir. 2015), a local peace officer stopped a car because of traffic infractions. The infractions were not such as to have placed the driver in custody. Id. at 1219. The officer obtained a hit off the NCIC database that requested that ICE be contacted. The officer called ICE and was requested to hold the driver. Id. The officer said he would have otherwise let the driver go. Id. The court concluded that the officer lacked authority to arrest the driver and suppressed the evidence that arose from the stop. Id. at 1223-26.
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The cases establish that detentions were the product of phone calls with ICE. Nowhere in their response do the State Defendants suggest that a local government may refuse such a request to detain made over the phone.
2. The prohibition of telling peace officers when inquiring into immigration status violates the Constitution will cause unconstitutional seizures.
The other component of SB4 is a prohibition against telling peace officers when it is and when it is not appropriate to engage detainees about their immigration status. Tex. Gov’t Code, § 752.053(b)(1) (A local government “may not prohibit or materially limit … a commissioned peace officer … from … inquiring into the immigration status of a person under lawful detention or arrest.”).8 Even the State Defendants do not contend that all inquiries into immigration status are lawful. The Supreme Court warned “detaining individuals solely to verify their immigration status would raise constitutional concerns.” Arizona, 132 S.Ct. at 2509. A detention of a vehicle's occupants because a peace officer believes that the occupants are not legally present in the country, but has no probable cause to detain them for any other reason, is a violation of the occupants’ Fourth Amendment rights. Melendres v. Arpaio, 989 F. Supp. 2d 822, 895 (D. Az. 2013) aff’d in part and vacated in part for other reasons, 784 F.3d 1254 (9th Cir. 2015). See also Santos v. Frederick Cnty. Bd. of Comm'rs, 725 F.3d 451, 465 (4th Cir. 2013).
Yet, SB4 mandates that local governments cannot tell or train their officers that inquires under certain circumstances will result in unlawful seizures. In their response, the State Defendants offer no suggestion on how it is possible to train and instruct officers to avoid
8 SB4 defines “lawful detention” as “the detention of an individual” by a local government’s governing body or one of its officials or employees. Id., .051(4). It does not define lawful detention as a detention that is lawful. It must be presumed that the legislature carefully chose each word while purposefully omitting words not chosen. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). The term must be read as any detention, lawful or not, when analyzing SB4’s meaning and effect. CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 27

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unconstitutional seizures and detentions without being able to tell them when and when not to make inquiries into immigration status. Local governments can be liable under 42 U.S.C. 1983 for a failure to train. See City of Canton v. Harris, 489 U.S. 378, 380 (1989). Legislatively mandating that local governments cannot train their officers and have policies as to proper detentions and questioning will necessarily result in unconstitutional seizures.
IX. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 Violates Article I, Section 11 of the Texas Constitution.
With certain exceptions, the Texas Constitution provides that “all prisoners shall be bailable.” Tex. Const. art. I, §§ 11 and 11a, 11b, 11c. The protections afforded by the Texas Constitution are not limited by any type of classification, except those subject to the exceptions contained in Sections 11a, 11b, and 11c. SB4 requires that a local government that has custody of a person subject to an ICE immigration detainer request must comply with, honor, and fulfill the request. Tex. Code Crim. Pro., art. 2.251. As the State Defendants admit, the detainer request is a request to continue to detain the individual in custody, without bail, for a period up to 48 hours. (See ECF No. 90 at 66, 70). From ICE’s perspective, a detainer request is just that, a request. But SB4 converts the request to a mandate that requires local governments to comply with, honor, and fulfill any such request, which will result in the denial of bail and violate Section 11 of Article I of the Texas Constitution.
The State Defendants will no doubt argue that 48 hours is not such a long time to be confined without the opportunity to have bail. However, Texas statutes and caselaw do not support the argument. In Sanders v. City of Houston, 543 F. Supp. 694, 703-704 (S.D. Tex. 1982) aff’d 741 F.2d 1379 (5th Cir. 1984), the court enjoined the city from delaying more than 24 hours before
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taking a detainee before a magistrate and held that the denial of bail beyond this permissible period of restraint violated the Texas Constitution’s command that all prisoners shall be bailable.
Texas law defines an arrest warrant as a written order by a magistrate to take a person into custody. Tex. Code Crim. Pro., Art. 15.01. Thus, ICE detainers, whether or not supported by an “executive arrest warrant”, are not arrest warrants for purposes of evaluating the requirements of Texas law. For those arrested without a warrant for a misdemeanor, they must be released on bond within 24 hours if not taken before a magistrate by that time. Id., art. 17.033(a). Those arrested without a warrant for a felony must be released within 48 hours of arrest if not taken before a magistrate. Id., .033(c).9 Those arrested with or without a warrant must be taken before a magistrate without unnecessary delay but within 48 hours of arrest and allowed the opportunity to make bail. Id., art.’s 14.06, 15.17. What is an unnecessary delay depends on the facts of each case. Moya v. State, 426 S.W.3d 259, 263 (Tex. App.—Texarkana 2013, no pet.). A blanket requirement to comply will all ICE detainers and hold prisoners for up to 48 hours without taking those individuals before a magistrate and not granting them the opportunity to make bail violates the Texas constitution and the requirements of the Texas Code of Criminal Procedure.
X. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 Violates Article 1, Section 30 of the Texas Constitution.
Article I, Section 30 of the Texas Constitution provides in part that “a crime victim has … (1) the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process; and (2) the right to be reasonably protected from the accused throughout the criminal justice process.” SB4 amended article 2.13 of the Texas Code of
9 Also, Section 17.032 of the Texas Code of Criminal Procedure provides that a magistrate shall release a defendant on a personal bond unless the person is charged with or has been convicted of a violent offense or there are other mental health reasons not to release the person.
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Criminal Procedure to provide that a peace officer investigating a criminal offense “may inquire as to the nationality or immigration status of a victim of or witness to the offense only if the officer determines that the inquiry is necessary to: (1) investigate the offense; or (2) provide the victim or witness with information about federal visas designed to protect individuals providing assistance to law enforcement. Tex. Code Crim. Pro., art. 2.13(d). The new provision continues that a peace officer is not prevented from “(1) conducting a separate investigation of any other alleged criminal offense; or (2) inquiring as to the nationality or immigration status of a victim of or witness to a criminal offense if the officer has probable cause to believe that the victim or witness has engaged in specific conduct constituting a separate criminal offense.” Id., art. 2.13(e).
These new provisions of SB4 are contrary to the Texas constitution’s requirements that a victim be treated fairly with respect to the victim’s privacy and dignity. The constitutional requirements apply to all victims, not just those with unquestioned immigration status. As the evidence established, the near universal law enforcement criticism of SB4 is that it will disrupt cooperation of minority and immigrant communities and make it that much harder for victims to come forward and further take part as witnesses. (E.g. Plaintiffs’ Exs. P-2(A); P-2(C); P-2(D); P4, p. 5; P-5, p. 4-5; P-101, pp. 5-6; P-201, p. 6-7; P-303, p. 5; P-413, p. 8). An authorization to inquire into a victim’s immigration status to “investigate the offense” will result in an invasion of the victim’s privacy and dignity. The problems with such authorization are compounded by SB4’s command to local governments and their officials not to tell peace officers that inquiring into immigration status will violate a victim’s right to be treated fairly with respect to the victim’s dignity and privacy. See Tex. Gov’t Code, § 752.053(b)(1).
SB4 ignores, disregards, and is contrary to the constitutional rights of crime victims.
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XI. There Is a Substantial Likelihood that the Plaintiffs Will Prevail on the Merits Because SB4 Violates the Texas Constitution’s Prohibition on Delegating Legislative Authority
The Texas Constitution prohibits the Texas legislature from delegating legislative power to any other body or authority. Brown v. Humble Oil & Ref. Co., 83 S.W. 2d 935, 941 (Tex. 1935). The prohibition against delegating legislative authority applies to delegation of authority to other public entities, including the federal government. Ex parte Elliott, 973 S.W. 2d 737, 740-41 (Tex. App.—Austin 1998, pet. denied). Delegations are generally upheld if the delegating statute establishes reasonable standards to guide the other body to which the powers are delegated. Id., at 740. The determining factor is whether a court can discern a legislative limit to the other body’s discretion through well-defined standards and rules in the delegating statute. Id.
In Ex parte Elliott, the issue involved a Texas statute that created a criminal offense of transporting hazardous materials. The statute then defined hazardous materials as defined by the Environmental Protection Agency under federal statutes, as amended. Id., at 738-39. The court recognized there may be an improper delegation if the Texas statute could be amended by subsequent federal changes to the definition of hazardous materials. Id. at 742-42. To avoid this result, the court construed the Texas statute as taking the definition as it existed when the statute was enacted and concluded “we do not construe, in this case, the adopting statute as attempting to adopt future laws, rules or regulations of the federal government.” Id. at 742.
Unlike the construed statute in Elliott, SB4 impermissibly delegates legislative power to the federal government and provided no standards or rules that will limit the federal government’s delegated authority. First, SB4 requires that local governments not adopt a policy that prohibits or materially limits the enforcement of federal immigration law. Tex. Gov’t Code, § 752.053(a)(1). As the State Defendants’ response indicates, federal immigration law is ill-defined,
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changeable, and left to the complete discretion of the federal government. (See ECF No. 91 at 6768, relying on an April 2, 2017 change to ICE’s detainer policy in an attempt to limit Fourth Amendment violations; at 90, relying on an executive order regarding sanctuary cities.). SB4 gives the federal government unfettered discretion to change policies that require local action and to do so without any federal authorizing statute. The Texas legislature has delegated to the federal government complete discretion as to what local governments are to enforce and not enforce.
Second, SB4 requires that local governments not adopt a policy that prohibits or materially limits “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” Tex. Gov’t Code, § 752.053(b)(3). The State Defendants acknowledge that what is reasonable or necessary is left to the complete discretion of the federal immigration officer. The State Defendants admit “SB4 does not require regulated entities to themselves affirmatively decide whether enforcement participation through assistance or cooperation is ‘reasonable or necessary.’ Rather, a request from a federal immigration officer for ‘enforcement assistance’ … puts covered entities on notice of when SB4’s prohibition of blocking immigration-law enforcement activity comes into play.” (ECF No. 91 at 57). Thus, the Texas legislature left it to the whim of an individual federal immigration officer as to what a local government must do in order to assist and cooperate. There is a complete absence of any standards or rules governing the delegated authority.10 Furthermore, since the decision of what constitutes a reasonable and necessary request for assistance or cooperation is left to the individual requesting
10 SB4 has another local government bar to policies regarding federal law enforcement officers entering and conducting enforcement activities at a jail. Tex. Gov’t Code, § 752.053(b)(4). The State Defendants urge that the local governments are also subject to the direction of the federal immigration officer as to what is required. (ECF No. 91 at 57, n. 16). This too is an improper delegation of legislative authority. CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 32

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federal immigration officer, it also means that the federal immigration officer controls the possible punishment that may be meted out against a local government, its officials, or employees.
Finally, SB4 requires that local governments must “comply with, honor, and fulfill any request in the detainer request provided by the federal government.” Tex. Code Crim. Pro., art. 2.251(a)(1). Again, there are no standards and rules as to what constitutes a detainer request and the federal government is left to make it up as it goes. And as explained, what constitutes a request to detain will change and depend on an individual immigration officer’s discretion without standards and rules.
With the passage of SB4, the Texas legislature abdicated its legislative duties and functions to the federal government and violated its constitutional responsibilities.
XII. The Plaintiffs Met Their Burden to Establish the Other Elements for a Preliminary Injunction
Dallas joins the argument of the other Plaintiffs that the evidence establishes the other equitable elements for a preliminary injunction. (See ECF No. 24-1 at 50-51; No. 56-1 at 33-34; No. 57 at 19-20; No. 77 at 63-69).
In their response, the State Defendants disputed that there was an irreparable injury. (ECF No. 91 at 111-112). The State Defendants first argued that SB4 did not order a new type of activity with unknown effects because state and local law-enforcement officials have been cooperating with federal immigration officials for years with no irreparable harm. (Id.). This argument does not address and does not dispute that the Plaintiffs established irreparable harm. Further, the argument misses one of the key problems with SB4. Cooperation entails the voluntary choice of working together with another. SB4 is not about cooperation or voluntary choice; it is a dictate
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with severe punitive measures. If the State Defendants argument had merit, there would be no need for SB4. Instead, it represents a radical departure from existing law.
The State Defendants also argued that the claims of irreparable harm were undermined by the State’s requirement to defend and indemnify as to claims based on complying with detainer requests. (ECF No. 91 at 111-12). However, the obligation to defend and indemnify is limited to detainer requests. Tex. Gov’t Code, § 402.0241. It is further limited to “any action in any court” and requires the Attorney General’s determination that the claim arose out of a claim involving a good-faith compliance with a detainer request. Id. It does not provide defense or indemnification for any of the irreparable harm caused by other portions of SB4. Furthermore, even if a blanket universal obligation to defend and indemnify had been provided, it would not have addressed all of the other irreparable injuries that SB4 will cause such as constitutional violations, compliance with a preempted law, adverse effects on law enforcement, damage to local economies, the loss of millions of dollars to implement, and the loss of tax revenues. (See supra at 5-7). The Plaintiffs established that they will be irreparably harmed if SB4 is not enjoined. During the preliminary injunction hearing, the State Defendants conceded that if SB4 would violate the U.S. or Texas constitutions, then there is irreparable harm. (Transcript 113, 248).
In their response, the State Defendants argued that the balance of harms favored the State because it will prevent the implementation of a statute as enacted by the representatives of the people. (ECF No. 91 at 112). This appears to the identical argument presented by the State in De Leon v. Perry, 975 F. Supp. 2d 632, 664 (W.D. Tex. 2014) aff’d 791 F.3d 619 (5th Cir. 2015) concerning Texas’ ban on same-sex marriages. The Court rejected the argument noting that the Fourteenth Amendment was ratified and voted upon by the people, made law, and an individual’s constitutional rights are not submitted to state vote and may not depend on the outcome of state
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legislation. Id. The holding applies equally here as to all of the rights provided in the Bill of Rights. Additionally, the State Defendants can suffer no harm in not enforcing an unconstitutional and preempted statute. See Ga. Latino Alliance, 691 F.3d at 1268-69. The Plaintiffs established the balance of harms favor the granting of a preliminary injunction.
The State Defendants contend that a preliminary injunction would be a disservice to the public first because it would disrupt SB4’s intention of promoting cooperation between law enforcement and federal immigration officials. (ECF No. 91 at 112). As discussed above, SB4 is not about cooperation and that was clearly not its intent.
The State Defendants next argue that injunctive relief would not promote the rule of federal and state law. Id. However, the rule of law is the federal immigration law that preempts SB4 and the constitutional rights protected by the United States and Texas constitutions.
The State Defendants’ final argument is that injunctive relief will delay the beginning of community outreach “educating the public of local policies on immigration-status inquiries.” Id. The argument is ironic since SB4 provided no funding for such community outreach. The irony continues because the outreach is limited to educating the public that a peace officer cannot inquire into the status of a victim or a witness except if necessary to investigate the offense or conducting a separate investigation of any other alleged criminal offense. Tex. Gov’t Code, § 752.057(a)(1); Tex. Code Crim. Pro. Art. 2.13 (e)(3). Local governments are prohibited from having any outreach about a policy that prevents a peace officer from inquiring about status of persons in detention. Tex. Gov’t Code, § 752.053(b)(1). The final irony is that the overwhelming evidence from peace officers is that immigration status inquiries are bad for public safety. (See Plaintiffs’ Exs. P-2(A); P-2(C); P-2(D); P-4, p. 5; P-5, p. 4-5; P-101, pp. 5-6, 12-14; P-413, pp. 4, 6-8). Even the testimony from the three peace officers submitted by the State Defendants all said that their policies did not
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Case 5:17-cv-00404-OLG Document 152 Filed 07/10/17 Page 36 of 37 allow inquiry into status unless there was a reasonable suspicion that the person was unlawfully present in the United States. (Defendants’ Exs. D-1(Ex. 3); D-2, p. 3; D-3, p. 3). The State Defendants’ argument provides no support that granting a preliminary injunction would be a disservice to the public.
The public will be served by not having a preempted and unconstitutional statue being enforced. Georgia Latino Alliance, 691 F.3d at 1268-69. The Plaintiffs established that the grant of an injunction will be a public service.
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Conclusion and Prayer
The City of Dallas requests that the Court grant the Plaintiffs’ applications for preliminary
injunction and enjoin the implementation of SB4, in whole, or alternatively in part until trial and
final judgment and grant the City of Dallas such other and further relief as the Court determines is
just and proper.
Respectfully submitted, OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS LARRY E. CASTO. Dallas City Attorney
_ s/ Charles S. Estee ________________ CHARLES S. ESTEE Assistant City Attorney State Bar of Texas No. 06673600 charles.estee@dallascityhall.com
City Attorney’s Office 1500 Marilla Street, Room 7B North Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622 Attorneys for Intervenor City of Dallas CERTIFICATE OF SERVICE I certify that on July 10, 2017, I electronically filed the foregoing document with the clerk
of court for the United States District Court for the Western District of Texas using the electronic
case failing system of the court. The electronic case filing system sent a “Notice of Electronic
Filing” to all counsel of record who have consented in writing to accept this Notice as service of
this document by electronic means.
_s/ Charles S. Estee_______________ CHARLES S. ESTEE
CITY OF DALLAS’S SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION – PAGE 37

 
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,
v. STATE OF TEXAS, et al.,
Defendants.

) ) ) ) ) ) ) Case No. 5:17-cv-404-OLG ) ) ) ) ) ) ) ) )

BRIEF AMICI CURIAE OF MAJOR CITIES CHIEFS ASSOCIATION, POLICE EXECUTIVE RESEARCH FORUM, AND
UNITED STATES CONFERENCE OF MAYORS IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 165 Filed 07/17/17 Page 2 of 19
TABLE OF CONTENTS Page
TABLE OF CONTENTS .............................................................................................................. i INTEREST OF AMICI CURIAE ............................................................................................... 1 INTRODUCTION ........................................................................................................................ 2 ARGUMENT................................................................................................................................. 4
I. SB 4 Impedes Effective Law Enforcement. ........................................................ 4 A. Trust and Respect Between Communities and Police Is Essential to Effective Law Enforcement, and is Thwarted When Local Officers are Forced to Partake in Federal Immigration Enforcement............... 4 B. SB 4 Precludes Local Governments, Agencies, and Officials from Effectively Allocating Resources to Serve Local Law Enforcement Needs. ....................................................................................................... 12
II. SB 4 Seeks to Force Local Law Enforcement Agencies to Engage in Conduct that Violates the Constitution and Subjects Local Law Enforcement Officers and Agencies to Potential Liability.............................. 14
CONCLUSION ........................................................................................................................... 17
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INTEREST OF AMICI CURIAE Amici Major Cities Chiefs Association, Police Executive Research Forum, and the United States Conference of Mayors file this brief as Amici Curiae in support of the Plaintiffs’ Motions for Preliminary Injunction. Amici are two leading national associations of local law enforcement officials and a nonpartisan organization of the 1,408 cities in the United States with populations of 30,000 or more. Amici have extensive expertise in local governance, law enforcement and in cooperative federal-state law enforcement activities. They are intimately familiar with the challenges of performing critical law enforcement functions in communities where immigrants fear the police and are vulnerable to exploitation and crime. Amici represent some of the cities and jurisdictions from across the country that understand the challenges of balancing local community needs and public safety. Amici’s experience in keeping their communities safe has taught the critical importance of bringing immigrants and their families out of the shadows. Community trust and cooperation are essential to public safety, and sound police work is undermined by undocumented immigrants’ fears of interacting with law enforcement. This dynamic, moreover, leaves undocumented immigrants more vulnerable to crime and exploitation, leading to more violence in the communities amici are charged with protecting. Amici have concluded that Texas Senate Bill 4 (“SB 4”) will dangerously impact local communities by eliminating law enforcement discretion of how to effectively serve public safety needs and mandating that they take part in federal immigration enforcement, including honoring civil detainers—requests from Immigration and Customs Enforcement (“ICE”) to hold an individual in local governmental custody to allow ICE to take the individual into federal custody— or risk severe penalties including staggering fines and even jail time or removal from office. Forced local involvement in immigration enforcement would cause community members to mistrust the
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police and result in a decrease in cooperation, hindering the ability of local law enforcement agencies to keep their communities safe. It would also drain scarce resources that would otherwise be used to enhance public safety, depriving local law enforcement of the discretion necessary to determine how best to protect their communities. Further, continued detention under ICE detainers of individuals who would otherwise be released from local custody has been found by federal courts across the country to violate the Fourth Amendment of the United States Constitution, and SB 4 mandates that law enforcement officers comply with all ICE detainer requests, formal or informal, without an exception for requests that are unsupported by probable cause. Thus, amici have concluded that a preliminary injunction is necessary to halt this attempt to force local law enforcement officers and agencies into a practice that would likely result in widespread constitutional violations and substantial civil liability.
INTRODUCTION The lessons amici have learned in protecting their communities shed important light on the issues raised in these cases. When community residents live in constant fear that interactions with local police could result in deportation, there is a fundamental breakdown in trust that impedes the police from doing their jobs and threatens public safety. Extensive evidence shows that undocumented immigrants—and their lawfully present family and neighbors—fear that turning to the police will bring adverse immigration consequences. As a result, immigrant communities are less willing to report crime or cooperate with police investigations. This fundamental breakdown in trust poses a major challenge both to investigation of individual crimes and to proper allocation of public safety resources. Law enforcement officials need the flexibility and discretion to determine how to best address these issues in their own communities. Many localities have policies limiting local law enforcement agency involvement in federal immigration enforcement. Though they take several
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different forms, these policies generally aim to preserve local resources and improve public safety by promoting cooperation between law enforcement and the communities they serve.1 Some jurisdictions include a policy or law limiting continued detention pursuant to an ICE detainer.2 SB4 upends these policies in the state of Texas, even prohibiting “endorsement” of such policies, to the detriment of community safety.
Further, SB 4 mandates that local officials honor ICE detainer requests—formal or informal—without an exception for requests that are unsupported by probable cause, and despite the fact that immigration detainers are purely voluntary under federal law.3 This deprives law enforcement from exercising any discretion on whether their communities can or should allocate the substantial funds and resources that ICE detainer compliance requires to federal immigration enforcement. Moreover, detentions pursuant to traditional ICE detainers have been held by numerous courts to violate the probable cause requirement of the Fourth Amendment. Thus, SB 4 seeks to compel local jurisdictions to take part in conduct that could result in unconstitutional detentions and civil liability, or face harsh penalties. The state should not force local communities into such a Hobson’s choice.
1 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www.judiciary.senate.gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 2 8 C.F.R. § 287.7; see also Jasmine C. Lee, Rudy Omri, and Julia Preston, What Are Sanctuary Cities?, N.Y. TIMES Feb. 6, 2017, http://www.nytimes.com/interactive/2016/09/02/us/sanctuarycities.html; Detainer Polices, IMMIGRANT LEGAL RESOURCE CENTER (Mar. 21, 2017), available at https://www.ilrc.org/detainer-policies [hereinafter ILRC Detainer Policies] 3 See TEX. CODE CRIM. PROC. ANN. art. 2.251(a) (effective Sept. 1, 2017), amended pursuant to Article 2 of SB 4; Galarza v. Szalczyk, 745 F.3d 634, 639-42, 639 n.3 (3d Cir. 2014).
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ARGUMENT I. SB 4 Impedes Effective Law Enforcement.
A. Trust and Respect Between Communities and Police Is Essential to Effective Law Enforcement, and is Thwarted When Local Officers are Forced to Partake in Federal Immigration Enforcement.
The experience of policing cities across the country has taught law enforcement officers that “[t]o do our job, we must have the trust and respect of the communities we serve.”4 In order to stop crime, police officers “need the full cooperation of victims and witnesses.”5
This common-sense philosophy is sometimes called “community policing.” Community
policing is an approach to policing where police officers engage communities in a working partnership to reduce crime and promote public safety.6 It thus requires police to interact with
neighborhood residents in a manner that will build trust and improve the level of cooperation with the police department.7 When that relationship of trust is missing–as it is when people believe that
contacting police could lead to deportation for themselves or others–community policing breaks
down and the entire community is harmed.
According to a Pew survey, 57% percent of Latinos in the United States indicate that they
worry about deportation–of themselves, family members, or close friends–and 40% worry about it “a lot.”8 This fear necessarily affects cooperation and communication with the police.
4 Statement of Tom Manger, supra note 1. 5 Id. 6 See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, POLICE FOUND., (Apr. 2009) (citing Mark H. Moore, “ProblemSolving and Community Policing,” MODERN POLICING (Michael Tonry & Norval Morris eds., 1992)), available at https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-ofLocal-Police-Narrative.pdf. 7 Id. 8 Mark Hugo Lopez & Susan Minushkin, 2008 National Survey of Latinos: Hispanics See Their Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement Measures, PEW HISPANIC CENTER, (Sept. 18, 2008), at ii, available at http://pewhispanic.org/reports/report.php ?ReportID=93.
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Immigrants–and their family members and neighbors who may be U.S. citizens or lawfully present–often assume that interaction with police could have adverse consequences for themselves or a loved one.
As a result, immigrant communities in general, and undocumented immigrants in particular, are less likely to trust and cooperate with local police. One study of Latinos in four major cities found that 70% of undocumented immigrants and 44% of all Latinos are less likely to contact law enforcement authorities if they were victims of a crime for fear that the police will ask them or people they know about their immigration status; and 67% of undocumented immigrants and 45% of all Latinos are less likely to voluntarily offer information about, or report, crimes because of the same fear.9
This study (among others) highlights that fears of immigration enforcement and the resulting damage to law enforcement cooperation affects not just the undocumented community but also individuals with citizenship or lawful status, in particular in “mixed-status” households.10
This problematic atmosphere of mistrust is felt by police as well. In one study, two-thirds of the law enforcement officers polled held the view that recent immigrants reported crimes less
9 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), available at www.policylink.org/sites/default/files/INSECURE _COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has significantly heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”). 10 An estimated 85% of immigrants live in mixed-status families. See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, POLICE FOUND., (Apr. 2009), at 24, available at http://www.policefoundation.org/wp-content/ uploads/2015/06/The-Role-of-Local-Police-Narrative.pdf. See also Jill Theresa Messing, et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 334 (2015) (“The results indicate that for each 1-point increase in fear of deportation [e.g., from ‘not much’ to ‘some’ worry, or from ‘some’ to ‘a lot’], Latina participants were 15% less willing to report being victim of a violent crime to police.”).
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frequently than others.11 Those surveyed also indicated that the crimes that are underreported by immigrants most often are serious ones, with domestic violence and gang violence at the top.12
The widely-recognized fear among immigrants of interacting with law enforcement poses a fundamental challenge for community policing. Police cannot prevent or solve crimes if victims or witnesses are unwilling to talk to them because of concerns that they or their loved ones or neighbors will face adverse immigration consequences. As the president of the Major Cities Chiefs Association has explained to Congress, “[c]ooperation is not forthcoming from persons who see their police as immigration agents.”13
The experience of one woman who came to the United States from Guatemala is illustrative. When asked in an interview whether she could count on the police to protect her, “simply smiled.”14 She recounted an episode working the night-shift at a fast-food restaurant that was robbed at gunpoint.15 The immigrant managed to knock out an assailant with a broomstick and take his gun, but “[a]t that moment, while I was holding the men, I kept on thinking, what do I do? If I call the police, I’d get deported. Yes, I was nervous (with the gun), but I was even more nervous to have to talk to the police.”16
In contrast, incidents in jurisdictions that implemented policies limiting local law enforcement of federal immigration law—policies that would be prohibited by SB 4—demonstrate
11 Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (Sept. 2001). 12 Id. at 188-9. 13 Statement of Tom Manger, supra note 1, at 2. 14 Cecilia Menjívar & Cynthia Bejarano, Latino Immigrants’ Perceptions of Crime and Police Authorities in the United States: A Case Study from the Phoenix Metropolitan Area, 27 Ethnic & Racial Stud. 120, 134 (Jan. 2004). 15 Id. at 134-35. 16 Id. at 135.
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their public safety benefits. For example, last year Los Angeles Police Department officers had an
encounter with a suspected gang member that resulted in a vehicle chase, a foot pursuit, and shots
fired. An undocumented immigrant helped police locate the suspect by providing a description and vehicle information.17 In Tucson, Arizona, an undocumented man confronted and struggled with
a man who tried to steal a car with children inside. The immigrant held the individual until police
arrived, then cooperated with detectives in the follow-up investigation, resulting in charges of kidnapping, auto theft, and burglary.18 These examples demonstrate why crime has been
statistically significantly lower in counties that do not hold people in custody beyond their release date pursuant to an ICE detainer compared to those that do.19 SB 4, however, will penalize local
agencies for developing these common-sense policing policies. But as cautioned by one official,
“immigrants will never help their local police to fight crime once they fear we have become immigration officers.”20
The underreporting of crimes by recent immigrants is a problem for the criminal justice system.21 The most immediate consequence, of course, is that serious crimes go unreported and
unpunished. At a broader level, undercounting the incidence of crime in areas where immigrant
17 Chuck Wexler, Commentary: Why police support sanctuaries, PHILA. INQUIRER, March 10, 2017, available at http://www.philly.com/philly/opinion/20170310_Commentary__Why_police_ support_sanctuaries.html. 18 Id. 19 Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” CENTER FOR AMERICAN PROGRESS, (Jan. 26, 2017), available at https://www.americanprogress.org/ issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-andthe-economy/ (“The results of the CEM analysis show that there are, on average, 35.5 fewer crimes per 10,000 people in sanctuary counties—a result that is highly statistically significant.”). 20 Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement, NATIONAL IMMIGRATION LAW CENTER, (Aug. 2013), at 2 (statement of Chief Acevedo), available at https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Opposition-to-Mandates2013-08-30.pdf. 21 Davis et al., supra note 11, at 188.
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communities live leads to the under-allocation of law enforcement resources to those communities.22 As one official explained, when criminal behavior goes unreported “[c]rime multiplies” and “[u]nresolved resentments grow in the community.”23 Another added that the under-reporting of crime “keeps fear at very high levels and diminishes quality of life.”24
Distrust between immigrants and the police also results in greater victimization of
immigrants. “When immigrants come to view their local police and sheriffs with distrust because
they fear deportation, it creates conditions that encourage criminals to prey upon victims and witnesses alike.”25 This phenomenon has been termed the “deportation threat dynamic,” where an
individual does not report a crime of which they are the victim, fearing immigration consequences.26 Nearly two-thirds of undocumented migrant workers participating in a study in
Memphis, Tennessee reported being the victim of at least one crime, with the most common being theft and robbery.27 Respondents indicated that fewer than a quarter of these crimes were reported to the police, and only one was reported by the victim himself.28 The targeting of undocumented
immigrants for robbery has become so widespread that these individuals have been labeled “walking ATMs” – or the subjects of “amigo shopping.”29
22 Id. 23 Id. 24 Id. 25 Statement of Tom Manger, supra note 1, at 2. 26 Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage Theft & Robbery, 52 Soc. Q. 593, 610 (2011). 27 Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010). 28 Id. at 165. 29 See Fussell, supra note 26, at 604-05; see also Under Siege: Life for Low-Income Latinos in the South, SOUTHERN POVERTY LAW CTR., (Apr. 2009), at 25, available at http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf; Khashu, supra note 6, at 25.
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Undocumented immigrants are especially vulnerable to domestic violence. A number of studies have shown that abusive partners may utilize the threat of deportation in order to maintain power and control.30 The experience of one domestic violence survivor demonstrates this dynamic: she explained that a partner “beat me up and I could have called the police because that was what I thought to do… but he threatened me…he told me that if I called the police I was going to lose out…because they [police officers] …would … take me, because I didn’t have legal documents.”31 When the abusing partner has lawful status, financial dependence on a partner with stable immigration status may similarly facilitate violence.32 Seventy percent of participants in one study of domestic abuse victims said that immigration status was a major reason keeping them from seeking help or reporting their abuse to the authorities—and thereby permitting the violence to continue.33 In another study, the single largest factor independently affecting the rate at which battered immigrant Latina women called the police was identified as immigration status.34
SB 4’s sweeping mandate that municipalities engage in federal immigration enforcement will compound fear of the police, in many cases undoing years of carefully developed community policing efforts. While the law contains a provision that prohibits law enforcement from inquiring into immigration status individuals detained solely because the person is a victim or witness to a criminal offense or is reporting a criminal offense, this is unlikely to have any material effect on
30 See, e.g., Messing, supra note 10, at 330 (citing several studies); Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601 (2013). 31 Reina, Lohman & Maldonado, supra note 30, at 601. 32 See, e.g., Messing, supra note 10, at 330. 33 Reina, Lohman & Maldonado, supra note 30, at 600. 34 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).
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curbing fear of law enforcement.35 First and foremost, it contains broad exceptions that allow officers to make immigration inquiries “to investigate” crimes or to provide information about visas.36 Moreover, the line between witnesses and suspects is not always immediately clear, particularly in cases involving domestic violence or human trafficking. And critically, very few individuals affected by crime and violence will be familiar with the intricacies of the law, aware of this provision, or confident that it will be stringently enforced. Other jurisdictions’ experiences with state immigration enforcement bills are illustrative. Salt Lake City’s former police chief has reported that when the state legislature debated a bill that would require local law enforcement to detain undocumented immigrants, crime reporting dropped, even though he directed the city’s officers not to inquire about immigration status and announced that policy on the news.37 Here, the mere existence of SB 4 and knowledge that local law enforcement will engage in immigration activities will be enough to erode trust of the police.
Indeed, the recent surge in federal immigration enforcement activities, stemming from Executive Order 13,76838 and other Trump Administration policies already has had a chilling effect on crime reporting in Latino communities in jurisdictions across the country, including even in those with so-called “sanctuary” policies. In Los Angeles, reports of sexual assault from the city’s Latino population have dropped 25% since the beginning of 2017, compared with the same
35 See Tex. Code Crim. Proc. Ann. art. 2.13(d)-(e) (effective Sept. 1, 2017) (amendment pursuant to Article 6 of SB 4). 36 Id. art. 2.13(d). 37 Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office, May 18, 2017, available at https://fivethirtyeight.com/features/latinos-report-fewer-crimes-in-three-cities-amid-fears-ofdeportation/. 38 See Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (significantly expanding interior immigration enforcement by, among other things, broadening categories of noncitizens who are deportation priorities, directing tripling the number of federal officers available for immigration enforcement, and calling for the withholding of federal funding from “sanctuary jurisdictions”).
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period last year; reports of domestic violence have dropped 10%.39 In Denver, crime reports among Latinos fell 12% compared with the same period last year, while reports from non-Latinos rose 3.6% in the same period.40 In Camden, there has been a 6% drop in calls for service from immigrant neighborhood communities.41 And Houston already has experienced an overall 13% decline in reported Part 1 violent crimes from Hispanic complainants, compared to an 11.7% increase in reports of these crimes from non-Hispanic complainants and a dramatic 42.8% decrease in reports of rape from Hispanic complainants, compared to an 8.2% increase of reports from non-Hispanic victims.42 SB 4 would exacerbate immigrant communities’ existing fear of reporting crime, endangering the safety of the entire community. As cautioned by Houston’s Police Chief: “When you see this type of data, and what looks like the beginnings of people not reporting crime, we should all be concerned. . . A person that rapes or violently attacks or robs an undocumented immigrant is somebody that is going to harm a natural born citizen or lawful resident.”43
39 James Queally, Latinos are reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says, Mar. 21, 2017, available at http://www.latimes.com/local/lanow/la-meln-immigrant-crime-reporting-drops-20170321-story.html 40 Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office, May 18, 2017, available at https://fivethirtyeight.com/features/latinos-report-fewer-crimes-in-three-cities-amid-fears-ofdeportation/. 41 Lindsey Bever, Hispanics ‘are going further into the shadows’ amid chilling immigration debate, police say, May 12, 2017, available at https://www.washingtonpost.com/news/postnation/wp/2017/05/12/immigration-debate-might-be-having-a-chilling-effect-on-crimereporting-in-hispanic-communities-police-say/?utm_term=.04ebe5a4080c. 42 Brooke A. Lewis, HPD chief announces decrease in Hispanics reporting rape and violent crimes compared to last year, Apr. 6, 2017, available at http://www.chron.com/news/houstontexas/houston/article/HPD-chief-announces-decrease-in-Hispanics-11053829.php 43 Id.
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B. SB 4 Precludes Local Governments, Agencies, and Officials from Effectively Allocating Resources to Serve Local Law Enforcement Needs.
By mandating that local entities enforce federal immigration law and imposing stiff penalties for non-compliance,44 SB 4 fully deprives local law enforcement officials from exercising discretion on the best way to allocate limited resources and protect their communities.
For example, complying with ICE detainer requests alone can add staggering costs—in some cases, tens of millions of dollars annually.45 The Houston Chronicle reported that Harris County, Texas spent more than $45 million to detain immigrants for ICE in 2012 and 2013.46 One study assessing the cost of federal immigration enforcement activities undertaken by Colorado law enforcement in 2012 (during a time that a now-repealed state law required police to report suspected undocumented arrestees to Immigration and Customs Enforcement) estimated that the $13 million spent statewide per year exceeded the cost of putting an additional 200 full-time police officers on the street.47 Officer training on SB 4 and federal immigration laws could exceed

44 SB 4 penalties include fines imposed on local employees that range from $1,000 to $1,500 for

an initial violation, up to $25,500 for subsequent violations. For continuing violations, each day

triggers a new penalty of up to $25,500. TEX. GOV’T CODE ANN. § 752.056(a). Elected and

appointed officials who violate certain provisions are subject to immediate removal from office. §

752.0565(b).

45 Legislative Threats to Undermine Community Safety Policies: The Costs of Entangling Local

Policing and Immigration Law, NATIONAL IMMIGRANT JUSTICE CENTER AND NATIONAL

IMMIGRATION

LAW

CENTER,

(Oct.

2015),

available

at

http://www.immigrantjustice.org/sites/immigrantjustice.org/files/NILC_NIJC_CommunitySafety

FactSheet_201510.pdf.

46 Kiah Collier, “Harris County Jail brings in highest number of undocumented immigrants,”

Houston Chronicle, Oct. 17, 2013, available at http://www.houstonchronicle.com/news/houston-

texas/texas/article/Harris-County-Jail-brings-in-highest-number-of-4905303.php.

47 Legislative Threats to Undermine Community Safety Policies: The Costs of Entangling Local

Policing and Immigration Law, NATIONAL IMMIGRANT JUSTICE CENTER AND NATIONAL

IMMIGRATION

LAW

CENTER,

(Oct.

2015),

available

at

http://www.immigrantjustice.org/sites/immigrantjustice.org/files/NILC_NIJC_CommunitySafety

FactSheet_201510.pdf.

12

Case 5:17-cv-00404-OLG Document 165 Filed 07/17/17 Page 15 of 19
hundreds of thousands of dollars and displace training or other law enforcement efforts on issues specifically needed by local communities.48
The cost to localities is not purely financial. At a 2014 roundtable convened by the Police Executive Research Forum (“PERF”) on state immigration policies, local law enforcement officials from across the country expressed their concerns that mandating local immigration enforcement will divert resources and attention away from individual community needs and threaten police-community relationships.49 One police chief noted the critical role local police already play without taking on federal enforcement duties, “We are the first responders, and sometimes the only responders,” and accordingly, as PERF cautioned, “spending time and money on immigration enforcement can hinder the ability of officers to respond to calls for service, conduct criminal investigations, and perform the other duties required by their jobs.”50 Communities carefully allocate resources such as funds, training, and officer duties to best serve local law enforcement needs; forced redistribution to immigration enforcement would siphon limited resources away from where they are most needed while simultaneously damaging community engagement and protection.51
48 According to a report by the Police Executive Research Foundation, state laws mandating immigration enforcement activities impose an “essential” need for officer training and investigation and the cost of such training in jurisdictions across Arizona following the passage of SB 1070 ranged from $123,000 to $640,000. Local Police Perspectives on State Immigration Policies, POLICE EXEC. RESEARCH FORUM, (July 2014), at 21, available at http://www.policeforum.org/assets/docs/Free_Online_Documents/Immigration/local%20police% 20perspectives%20on%20state%20immigration%20policies.pdf. 49 Id. at 15-25 50 Id. at 17. 51 See Letter from Law Enforcement Task Force to Hon. Trey Gowdy and Hon. Zoe Lofgren (July 20, 2015) available at https://immigrationforum.org/wp-content/uploads/2015/07/072015-LEITFLetter-House.pdf (opposing Congressional proposals to mandate local law enforcement engaged in immigration enforcement).
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II. SB 4 Seeks to Force Local Law Enforcement Agencies to Engage in Conduct that Violates the Constitution and Subjects Local Law Enforcement Officers and Agencies to Potential Liability.
SB 4 requires local law enforcement agencies to honor all ICE detainer requests or incur potentially staggering fines and even makes an individual official’s decision to decline to comply with a detainer a criminal offense.52 The law imposes this detainer mandate even for circumstances where the federal government’s detainer request is not supported by probable cause, and despite that federal law makes clear that detainers are voluntary.53 This places localities in an untenable situation as numerous courts have found that continuing to detain an individual under an ICE detainer absent probable cause for longer than they otherwise would be held violates the Fourth Amendment. Local law enforcement should not be faced with the stark choice of incurring crushing fines and jail time or committing constitutional violations for which they will be subject to civil liability.
The Fourth Amendment’s most basic requirement is that all arrests must be supported by probable cause.54 Probable cause requires that “the facts and circumstances within . . . the officers’ knowledge and of which they ha[ve] reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being
52 See TEX. CODE CRIM. PROC. ANN. art. 2.251(a) (effective Sept. 1, 2017) amended pursuant to Article 2 of SB 4 (detainer mandate); TEX. PENAL CODE ANN. § 12.21; TEX. PENAL CODE ANN. § 39.07 (effective Sept. 1, 2017) amended pursuant to Art. 5 of SB 4 (single knowing violation by a sheriff, police chief, or constable is a Class A misdemeanor punishable by up to one year in jail and a $4000 fine); TEX. LOC. GOV’T CODE ANN. § 87.031(c) (elected official subject to immediate removal from office); and TEX. GOV’T CODE ANN. § 752.056 (imposing fines up to $25,500 per violation for violations of SB 4’s sanctuary provisions, which would include local policies that place limitations on detainer compliance). 53 See TEX. CODE CRIM. PROC. ANN. art. 2.251(a) (effective Sept. 1, 2017), amended pursuant to Article 2 of SB 4; Galarza, 745 F.3d at 639-42, 639 n.3. 54 See Dunaway v. New York, 442 U.S. 200, 213 (1979).
14

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committed.”55 Under long-standing Fourth Amendment precedent, numerous federal courts—
including this Court—have found that continued detention under an ICE detainer, absent probable
cause, gives rise to a claim for a violation of the Fourth Amendment and subjects the detaining
officer or jurisdiction to civil liability.56 These courts have found that local jails must have a
warrant or probable cause of a new offense to detain a person after they would otherwise be
released from custody.57 SB 4’s detainer mandate will almost certainly subject localities to
55 Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (internal quotation marks, brackets, and citation omitted). 56 See Order, Trujillo Santoyo v. United States, No. 5:16-cv-855-OLG (W.D. Tex. June 5, 2017), ECF No. 36 (granting summary judgment to plaintiff held on ICE detainer by Bexar County, Texas and finding it unreasonable for the county to assume that all detainer forms are supported by probable cause); Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014), aff’d on appeal, 793 F.3d 208 (1st Cir. 2015) (plaintiff stated Fourth Amendment claim where she was held for 24 hours on ICE detainer issued without probable cause); Galarza v. Szalczyk, No. 10-cv-06815, 2012 WL 1080020, at *10, *13 (E.D. Pa. Mar. 30, 2012) (where plaintiff was held for 3 days after posting bail based on an ICE detainer, he stated a Fourth Amendment claim against both federal and local defendants), rev’d on other grounds, 745 F.3d 634 (3d Cir. 2014); Miranda-Olivares v. Clackamas Cnty., No. 12-cv-02317-ST, 2014 WL 1414305, at *10 (D. Or. Apr. 11, 2014) (plaintiff’s detention on an ICE detainer after she would otherwise have been released “constituted a new arrest, and must be analyzed under the Fourth Amendment”); Mendoza v. Osterberg, No. 13CV65, 2014 WL 3784141, at *6 (D. Neb. July 31, 2014) (recognizing that “[t]he Fourth Amendment applies to all seizures of the person,” and thus, “[i]n order to issue a detainer[,] there must be probable cause”) (internal quotation marks, ellipses, and citations omitted); Villars v. Kubiatowski, 45 F.Supp.3d 791 (N.D. Ill. 2014) (holding that plaintiff stated a Fourth Amendment claim where he was held on an ICE detainer that “lacked probable cause); Uroza v. Salt Lake Cnty., No. 11CV713DAK, 2013 WL 653968, at *5-6 (D. Ut. Feb. 21, 2013) (holding that plaintiff stated a Fourth Amendment claim where ICE issued his detainer without probable cause); Vohra v. United States, No. 04-cv00972-DSF-RZ, 2010 U.S. Dist. LEXIS 34363, *25 (C.D. Cal. Feb. 4, 2010) (magistrate’s report and recommendation) (“Plaintiff was kept in formal detention for at least several hours longer due to the ICE detainer. In plain terms, he was subjected to the functional equivalent of a warrantless arrest” to which the “‘probable cause’ standard . . . applies”), adopted, 2010 U.S. Dist. LEXIS 34088 (C.D. Cal. Mar. 29, 2010). But see Order, Roy, et al. v. County of Los Angeles, et al., No. 2:12-cv-9012-BRO-FFM (C.D. Cal. June 12, 2017), ECF No. 264 (fourth amendment does not require judicial review of ICE officers’ probable cause determinations). 57 See, e.g., Morales, 793 F.3d at 217 (1st Cir. 2015) (“Because Morales was kept in custody for a new purpose after she was entitled to release, she was subjected to a new seizure for Fourth Amendment purposes— one that must be supported by a new probable cause justification.”); Vohra, 2010 U.S. Dist. LEXIS 34363 (C.D. Cal. 2010).
15

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expensive litigation and judgments as it not only requires officers to comply with the type of formal immigration detainer requests that courts already have held often violate the Fourth Amendment (such as the ICE detainer form which lacks individual and particularized facts regarding probable cause), but even detention requests placed through informal means such as telephone calls.58 Particularly problematic is SB 4’s failure to allow officers the latitude to decline detainers that they believe are not supported by probable cause, the foundational requirement for Fourth Amendment compliance.
Moreover, there are a myriad of other reasons why local law enforcement need the flexibility to decide when they should prioritize their community’s needs over ICE detainer requests. As described above, universal compliance with all ICE detainer requests, both formal and informal, during a time of aggressive ICE enforcement, could impose staggering costs on localities, even absent subsequent legal challenges.59 And compliance requires allocating physical space, officer time, and other resources to detained individuals. Local law enforcement needs the flexibility and discretion to focus those resources on dealing with violent crime or other community-specific needs at any given time.
In sum, SB 4’s broad requirement that local law enforcement honor all ICE detainers, without an exception for requests that are unsupported by probable cause, forces localities to choose between harsh penalties and committing and subjecting themselves to liability for constitutional violations or significant diversions of resources. As such, SB 4 should be preliminarily enjoined.
58 TEX. GOV’T CODE ANN. § 772.0073(a)(2). 59 See supra Sec. I(B) (complying with detainers has previously cost some jurisdictions tens of millions of dollars).
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CONCLUSION For the foregoing reasons, as well as the reasons set forth in Plaintiffs’ Motion, this Court should grant the preliminary injunction against Texas Senate Bill 4.

July 10, 2017

Respectfully Submitted,
/s/ José J. Behar
Matthew J. Piers José J. Behar Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 Counsel for Amici Curiae

17

 
 Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, et al., §

Plaintiffs

§

§

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants

§

CIVIL ACTION NO. 5:17-cv-404-OLG

BRIEF OF AMICUS CURIAE VINCE RYAN, HARRIS COUNTY ATTORNEY IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 2 of 24
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 I. Statement of Interest of the Harris County Attorney’s Office: S.B. 4 Creates
Fundamental Conflicts for County Attorneys who are Obligated in Child Welfare Cases to Protect the Best Interests of Children and Preserve Family Unity. ...................... 2 II. The Laws of Child Welfare Require that Children’s Best Interests Come First, Regardless of the Immigration Status of the Children or Parents Involved. ...................... 5 III. S.B. 4 Conflicts with the Federal and State Laws Applicable to Child Welfare Cases, Will Force County Attorneys to Violate their Duty to Prioritize Children’s Best Interests, and Cause Irreparable Harm to Children in State Care ............................. 10 A. S.B. 4’s sweeping language encompasses county attorneys’ work in DFPS
cases. ..................................................................................................................... 10 B. S.B. 4’s unequivocal requirement that county attorneys assist in enforcing
immigration laws conflicts with the mandates of the child welfare system, violating the constitutional rights of children and placing attorneys in an irreconcilable conflict. .......................................................................................... 12 C. Unless enjoined, S.B. 4 poses an immediate threat to the ethical duties of attorneys and more pointedly to the safety and constitutional rights of children. ................................................................................................................ 14 IV. Conclusion ........................................................................................................................... 20
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INTRODUCTION Vince Ryan, Harris County Attorney, submits this Amicus Curiae brief in support of the Plaintiffs’ Motions for Preliminary Injunction. Should S.B. 4 be allowed to take effect, serious and irreparable damage will be done to the children involved in our State’s child welfare system. As County Attorney, it is my office’s responsibility to represent the Texas Department of Family and Protective Services (“DFPS”) when it is necessary for the State to petition for custody of children who have been subjected to abuse or neglect. Federal and State law, and the policies set forth by DFPS, all provide that the primary goal of our child protection system is to serve the best interests of the children involved, and to prioritize efforts to rehabilitate and preserve the family unit, including by placing children with relatives and those close to a child’s family, in order to lessen the trauma children experience when they are removed from their home. Because of the breadth of the language of S.B. 4, its provisions encompass county attorneys who represent DFPS and who are ethically bound to pursue the best interests of children through efforts to reunify them with their families. By mandating county attorneys cooperate in the enforcement of immigration laws — prioritizing immigration over other duties — S.B. 4 creates an irreconcilable conflict between the priority given by our State to the preservation of the family, and the requirement that county attorneys engage in efforts which will lead to deporting parents — including those of citizen children — and the destruction of families. Plainly, children will suffer as a result. S.B. 4’s harm to children will arrive in a variety of ways. Immigrant communities who fear local government involvement with immigration enforcement will no longer come forward to report abuse in the first place, provide necessary information and evidence to protect children, or volunteer as relative or kinship placements to ensure children are not needlessly placed in foster care. Unauthorized immigrant parents who are detained because of S.B. 4’s enlistment of
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a broad range of local officials and employees as federal immigration agents will no longer be able to participate in the services necessary to reunify them with their children. Thus, children who are well-cared for will be forced into an already overburdened foster care system1 only because their parents are undocumented and subject to detention and deportation proceedings initiated not by federal agents, but by local government actors. As a result, children will remain in abusive circumstances, fewer children will be able to maintain ties to their families and communities, and more children will languish in the State’s care. For these reasons, and as set out more fully below, this Court should enjoin S.B. 4 from taking effect in order to prevent the irreparable and incurable trauma the bill will impose on the children involved in our State’s child protection system. I. Statement of Interest of the Harris County Attorney’s Office: S.B. 4 Creates
Fundamental Conflicts for County Attorneys who are Obligated in Child Welfare Cases to Protect the Best Interests of Children and Preserve Family Unity. The Office of the Harris County Attorney (“HCAO”) provides legal representation to DFPS, elected officials, and employees in all civil matters in the largest county in Texas, with a population of approximately four and one-half million people. Harris County is also one of the most diverse counties in the United States, and includes significant immigrant communities from all over the world. Harris County is the most diverse metropolitan area in the United States.2
1 The Court should take judicial notice of ongoing proceedings in the Southern District of Texas regarding the treatment of foster youth in the Texas system. See M.D. v. Abbott, Civ. A. No. 2-11-cv-84, 152 F. Supp. 3d 684, 823, 828 (S.D. Tex. 2015) (requiring a special master to assist in crafting a remedy to bring DFPS in compliance with the Constitution). 2
Kinder Inst. for Urban Research, Rice University, The 2012 Houston Education Survey: Public Perceptions at a Critical Time, at 7; Grantmakers Concerned with Immigrants and Refugees, Stronger Together: Immigrants, Refugees, and the Future of Texas, at 2 (May 2016), available at http://www.immigrationresearchinfo.org/report/other/stronger-together-immigrants-refugees-and-future-texas.
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The Houston metropolitan area has more unauthorized immigrants than any area in Texas and the third most of any urban area in the country.3
Given the immigration patterns of the last few decades, the bulk of the unauthorized immigrants in Harris County are of working age, rather than children or young adults.4 While
38% of 25-to-44 year olds in Harris County are foreign-born, only 14% of 16-to-18 year olds are foreign born.5 Of parents with at least one child under 18 in Harris County, 43% are immigrants or refugees.6
A significant portion of K-12 students have unauthorized immigrant parents. For Texas, 13.4% of all K-12 students have unauthorized immigrant parents.7 Of those students nationally, as of 2014, 81% are U.S. born and thus citizens.8
Harris County also has a high proportion of U.S. citizen children of unauthorized
immigrant parents. In Harris County, 36% of unauthorized immigrants have at least one U.S. citizen child living at home.9 Immigrant communities include many children who are United
States citizens and have parents and other adult relatives who are undocumented. One-third of
children in Texas have at least one immigrant parent, and at least 80% of these children are U.S.-
3 Jeffrey S. Passel and D’Vera Cohn, Pew Research Center, 20 Metro Areas are Home to Six-in-Ten Unauthorized Immigrants in the U.S., (Feb. 2017), available at http://www.pewresearch.org/fact-tank/2017/02/09/us-metro-areasunauthorized-immigrants/. 4 Margie McHugh and Madeleine Morawski, Migration Policy Inst., Immigration and WIOA Services: Comparison of Sociodemographic Characteristics of Native- and Foreign-Born Adults in Harris County, Texas (April 2016), available at http://www.houstonimmigration.org/research/. 5 Id. at 2. 6 Id. at 7. 7 Pew Research Center, Children of Unauthorized Immigrants Represent Rising Share of K-12 Students (Nov. 2016), available at http://www.pewresearch.org/fact-tank/2016/11/17/children-of-unauthorized-immigrants-representrising-share-of-k-12-students/. 8 Id. 9 Migration Policy Inst., Profile of Unauthorized Population: Harris County, Tx., available at http://www.migrationpolicy.org/data/unauthorized-immigrant-population/county/48201.
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born citizens.10 This pattern of unauthorized parents with U.S. citizen children is not surprising given that immigration from Mexico, the country of origin for the vast majority of immigrants in Texas, peaked in 2007 and has been declining since.11
Under the Texas Constitution and other laws of the State, the HCAO has the responsibility to represent the DFPS in child protection cases. TEX. CONST. art. V, § 21; TEX. FAM. CODE ANN. § 264.009 (West 2015); TEX. GOV’T CODE § 45.201. The HCAO files approximately 1,400 cases each year on behalf of DFPS, and currently provides legal representation to DFPS in close to 3,000 active cases involving roughly 4,600 children in the State’s temporary or permanent care. Throughout the course of each case, HCAO attorneys work closely with DFPS in its efforts to investigate allegations of child abuse and neglect, locate relatives or “kinship” care providers who might care for children during the pendency of these cases, and ensure that parents are provided with rehabilitative services in the effort to reunify families. Moreover, in every case, as legal representatives, HCAO attorneys are ethically bound to advocate for DFPS in its obligation to provide for children’s best interests and to preserve families where possible.
Given that S.B. 4 compels these same attorneys to cooperate in efforts which will lead to the deportation of parents or kinship caregivers, the separation of families, and further trauma to children, the new law presents clear conflicts with Federal and State laws, as well as DFPS’s purpose as stated in its policies, which require efforts to protect children and to maintain the unity of their families without regard to their immigration status. The HCAO therefore has a
10 Grantmakers Concerned with Immigrants and Refugees, Stronger Together: Immigrants, Refugees, and the Future of Texas, at 4 (May 2016) (analyzing Migration Policy Institute data), available at http://www.houstonimmigration.org/research/. 11 See Passel, Jeffery S. and D’Vera Cohn, Pew Research Center, Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009: Decline in share from Mexico mostly offset by growth from Asia, Central America and sub-Saharan Africa, at 5 (Sept. 2016) (See Doc. 104, Order).
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significant interest in precluding the application of S.B. 4 in order to protect against the irreparable harm it will do Texas children. II. The Laws of Child Welfare Require that Children’s Best Interests Come First,
Regardless of the Immigration Status of the Children or Parents Involved. The Federal and State laws which provide the purpose and structure of Texas’ child protection process, along with the DFPS policies, dictate that the primary consideration in all cases is to serve the best interests of children, and that DFPS make efforts to preserve and reunify families. See 42 U.S.C. § 671(a)(15); TEX. FAM. CODE ANN. § 153.002 (West 2015); TEX. DEP’T. OF FAMILY & PROT. SERVS., CHILD PROTECTIVE SERVICES HANDBOOK § 1100 [hereinafter “CPS HANDBOOK”].12 Moreover, the priority given to children’s best interests and family reunification applies to all children and families in the child welfare system, citizen and undocumented alike. Texas’ child protection process is controlled by federal law, which conditions funding for foster care and adoption assistance on Texas’ compliance with federal mandates. See CPS HANDBOOK, §§ 1222-1225. As Texas makes use of these funds, it is required as part of its child protection system to provide that “the child’s health and safety shall be the paramount concern,” and that “reasonable efforts shall be made to preserve and reunify families.” 42 U.S.C. § 671(a)(15). Additionally, as part of the State’s plan for child welfare services, DFPS is required to implement a system, “designed to help children — where safe and appropriate, return to families from which they have been removed,” and put in place a “preplacement preventive services program designed to help children at risk of foster care placement remain safely with their families . . . .” 42 U.S.C. § 622(b)(8). And, in cases where a child is not placed with parents, DFPS is required to document at each hearing during the case, “the intensive, ongoing,
12 The CPS HANDBOOK is available at https://www.dfps.state.tx.us/handbooks/.
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and, as of the date of the hearing, unsuccessful efforts made by the State agency to return the child home or secure a placement for the child with a fit and willing relative . . . .” 42 U.S.C. § 675a(5).
DFPS’s policies give effect to these priorities and expressly reference federal statutes which clarify that where protecting a child’s safety is concerned, federal assistance and benefits, including reunification services in child welfare cases, may be provided to any person irrespective of their immigration status. 8 U.S.C. § 1611(b)(1)(D). At its outset, DFPS’s CPS HANDBOOK states:
The purpose of the Child Protective Services program is to protect children and to act in the children’s best interest. Through the program, the Texas Department of Family and Protective Services (DFPS) focuses on children and their families and seeks active involvement of the children’s parents and other family members to solve problems that lead to abuse or neglect. CPS HANDBOOK § 1100. Moreover, with regard to children and families who are not United States citizens, DFPS’s policy provides, “Child protection services, including investigative services, family-based safety services, substitute care services, and reunification services can be provided without regard to a parent, child, or youth’s immigration status.” Id. at § 6710 citing 8 U.S.C. § 1611(b)(1)(D). This federal law referenced by DFPS’s policy states that programs, services, or assistance which are necessary for the protection of life or safety “such as . . . crisis counseling and intervention, and short-term shelter” — the same kinds of services provided to parents during child welfare cases — may be provided regardless of the recipient’s immigration status. 8 U.S.C. § 1611(b)(1)(D). Thus, federal law recognizes that protecting children and
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ensuring their best interests are served through family preservation efforts come before the enforcement of immigration laws.13
State policies require case workers to determine the status of children in their care, not to deport foreign-born children, but to assist them in qualifying for services, gaining assistance from consulates, and beginning a path to citizenship. CPS HANDBOOK §§ 6710 (citing 42 U.S.C. § 671(a)(27)), 6711 (Immigration Opportunities for Foster Children), 6712 (Impact of Citizenship and Immigration Status on Permanency); see also §§ 5830-5831 (foreign born children and notice to consulates), DFPS, International and Immigration Issues Resource Guide, available at https://www.dfps.state.tx.us/handbooks/CPS/Menu/MenuCPSResource.asp. While licensed foster parents or adoptive parents must have legal status, this criteria can be waived and does not apply to kinship placements. See CPS HANDBOOK §§ 7226-7226.5 (regarding the Foster and Adoptive Home Development (FAD) program).
Similarly, Texas’ laws which establish its child welfare process expressly provide that children’s best interests come first, but make no provision indicating they apply differently where a child or parent is undocumented. See, e.g., TEX. FAM. CODE ANN. § 153.002 (West 2015) (“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”). Additionally, at every step of Texas’ child protection process, the Texas Family Code mandates adherence to the principle that family reunification best serves the child.14 If DFPS determines that removing a child from his or her home may be required following a report of abuse or neglect, one of the first things it must do is determine whether any relatives or “kinship”
13 Similar values apply in the context of education. See Plyler v. Doe, 457 U.S. 202, 219-20, 102 S. Ct. 2382, 2396,
72 L. Ed. 2d 786 (1982) (holding that, because children should not be punished for circumstances placed upon them by adults, their right to an education is unfettered by their immigration status). 14 A chart summarizing the process of a typical child welfare case is attached to this brief.
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caregivers are available to provide care for the child.15 TEX. FAM. CODE ANN. § 261.307 (West 2015). And, before DFPS may remove a child it must prove there was an immediate danger to the health or physical safety of the child, and that allowing the child to continue residing in the home would be contrary to the child’s welfare. See TEX. FAM. CODE ANN. §§ 262.101, 262.102, 262.104 (West 2015) (providing the standards for removal of a child in an emergency). Should DFPS be required to remove a child, the law requires that the child be returned to the parents no less than fourteen days later unless it is shown that DFPS made efforts to return the child home, but that the danger persists. TEX. FAM. CODE ANN. § 262.201 (West 2015). Then, within the next forty-five days, DFPS must create a family service plan in conference with the parents, which specifies the steps required to return the child home and the rehabilitative services necessary for the parents to provide the child with a safe environment. TEX. FAM. CODE ANN. §§ 263.101-102 (West 2015).
The law then requires the occurrence of periodic hearings in order to review the parents’ progress with their service plan and to determine whether the child may safely be returned to their care. TEX. FAM. CODE ANN. §§ 263.201-201, 263.305-306 (West 2015). Sixty days following the child’s removal, the trial court must hold a Status Hearing at which it is required to review DFPS’s efforts to locate relatives as possible caregivers for the child, approve or amend the family service plan created for the parents, and make findings as to whether the plan “adequately ensures that reasonable efforts are made to enable the child’s parents to provide a safe environment for the child . . . .” TEX. FAM. CODE. ANN. § 263.202 (West 2015). And then, at subsequent Permanency Hearings, held 180 days following removal and every 120 days thereafter, the court must “return the child to the parent or parents if the child’s parent or parents
15 The Texas Family Code includes in this provision, “an individual who has a longstanding and significant relationship with the child . . . .” TEX. FAM. CODE ANN. § 264.751 (West 2015).
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are willing and able to provide the child with a safe environment and the return of the child is in the child’s best interest . . . .” TEX. FAM. CODE. ANN. §§ 263.304-.306 (West 2015). DFPS is required then to dismiss its suit after one year, unless it commences a final hearing or extraordinary circumstances warrant the continuation of the child in DFPS’s temporary care. TEX. FAM. CODE ANN. § 263.401 (West 2015). Nowhere in the Texas Family Code does it indicate that the services provided by DFPS or the goal that it serve the best interests of children through family reunification are in any way conditioned on a child or a family legally residing in the United States.
This process demonstrates Texas’ priority that children are best served by efforts to reunify them with their families without regard to the immigration status of the families involved. Additionally, the same legislature which enacted S.B. 4 affirmed its intent to prioritize children’s families when it enacted Senate Bill 11.16 S.B. 11, 85th Leg., R.S. § 18 (2017) (enacting TEX. FAM. CODE § 264.151). Section 264.151 declares the Legislature’s intent that children be provided with community-based services with goals relating to, “the placement of children in each child’s home community,” “the provision of services to children in the least restrictive environment possible and, if possible in a family home environment,” “the maintenance of contact between children and their families and other important persons,” “the placement of children with siblings,” “the provision of services that respect each child’s culture,” “the reunification of children with the biological parents of the children when possible,” and “the promotion of placement of children with relative or kinship caregivers if reunification is not possible.” Id. These provisions, too, make no indication that the priority of family reunification depends on the immigration status of the parents or children affected.
16 S.B. 11 was part of a package of CPS reform bills prompted by the federal district court’s ruling in M.D. v. Abbott. Citations to Family Code provisions in this brief are to the 2015 versions of the law unless the statute was substantively changed by the 2017 reform legislation.
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 12 of 24
Thus, the clear intent announced by both federal and state law, and as enunciated in DFPS policy, is that where child welfare and protection are concerned, the provision of the services necessary to give effect to children’s best interests are not conditioned on their, or their parents’, immigration status. Rather, protecting children and ensuring their continued association with family is paramount. Given this intent, S.B. 4 presents a clear and irreconcilable conflict with the laws pertaining to Texas’ child welfare system, and allowing it to take effect will present significant ethical dilemmas for county attorneys who represent DFPS and do serious and irreparable harm to the children involved. III. S.B. 4 Conflicts with the Federal and State Laws Applicable to Child Welfare Cases,
Will Force County Attorneys to Violate their Duty to Prioritize Children’s Best Interests, and Cause Irreparable Harm to Children in State Care Senate Bill 4 requires broad compliance with immigration enforcement efforts without regard for the federal and state laws which require that children’s interests in safety and family reunification are prioritized. It therefore puts county attorneys, who are ethically bound to represent DFPS in its obligation to reunify families, in the position of cooperating with enforcement efforts which will lead to the deportation of parents or other caregivers and the separation and destruction of families. A. S.B. 4’s sweeping language encompasses county attorneys’ work in DFPS
cases. S.B. 4 defines a “local entity” as including “an officer or employee of . . . a county . . . including a . . . county attorney.” Tex. S.B. 4, 85th Leg., R.S. § 1.01 (enacting TEX. GOV’T CODE § 752.053(a)) [hereinafter “S.B. 4”]. S.B. 4 then provides that local entities may not, “adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws,” including “as demonstrated by pattern or practice . . . .” Id. (enacting TEX. GOV’T CODE § 752.053). “Policy” is defined broadly to include either a
Amicus Brief of Vince Ryan – Page 10

Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 13 of 24
formal written rule or “an informal, unwritten policy.” Id. (enacting TEX. GOV’T CODE § 752.051). Moreover, a local entity may not prohibit or materially limit a “prosecuting attorney . . . who is employed by . . . the entity,” from assisting or cooperating with a federal immigration officer, “including providing enforcement assistance.” Id. (enacting TEX. GOV’T CODE § 752.053(b)(3)). The bill goes on to provide penalties for violating its provisions, including fines of up to $25,500 per day for continuing violations, as well as removing the County Attorney from office. Id. (enacting TEX. GOV’T CODE §§ 752.056-.0565). Thus, any county attorney who declines to engage with assisting in the enforcement of immigration laws or discourages colleagues from doing so in order to advocate for the best interest of the child and promote family unification — as child welfare laws mandate — would not be “providing enforcement assistance” and would be “adopt[ing], enforce[ing], or endors[ing] a policy” or engaging in a “pattern or practice” that “materially limits the enforcement of immigration laws.” See id. (enacting TEX. GOV’T CODE § 752.053(a), (b)(3)).
Notably, Senate Bill 4 itself reflects a recognition that in certain contexts immigration enforcement efforts should not be required. It includes exemptions for hospital districts, health centers, religious organizations, and school districts, as well as for peace officers employed by these entities. Id. (enacting TEX. GOV’T CODE § 752.052). However, it makes no exception which would apply to children and families involved in the child welfare system. Rather, an amendment proposed on the House floor to exempt DFPS was rejected, along with dozens of other proposed amendments which were struck down en masse. See House Amd. No. 145, Tex. S.B. 4, 85th Leg., R.S. (2017); Tex. H.J. of Tex., 85th Leg. R.S., 1929, (Apr. 26, 2017) (Record Vote No. 460); see also Transcript of Preliminary Injunction Hearing at 163, June 26, 2017 (testimony of Rep. Ana Hernandez describing rejection of the Minjarez amendment). In
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 14 of 24
addition, the racial animus that later surrounded the enactment of S.B. 4 surfaced most notably on a bill regarding CPS and kinship placement demonstrating that the child welfare system was not immune from such animus during the legislative session. Id. at 155-56.
B. S.B. 4’s unequivocal requirement that county attorneys assist in enforcing immigration laws conflicts with the mandates of the child welfare system, violating the constitutional rights of children and placing attorneys in an irreconcilable conflict.
On its face, Senate Bill 4’s language is incompatible with the mandates of federal and state laws as they pertain to the child welfare system. As set forth above, attorneys engaged in representing DFPS are obligated by law to prioritize children’s best interests and family reunification without regard to immigration status. As a result, where undocumented parents have demonstrated their ability to provide for their children, county attorneys are obligated to not pursue immigration enforcement efforts in the knowledge that doing so will separate families and harm children, rather than serve the best interest of the children. Thus, by acting in compliance with the requirements of federal and state mandates, county attorneys will necessarily violate S.B. 4’s prohibition against any “policy,” formal or informal, or any “pattern” or “practice” which materially limits the enforcement of immigration laws.
S.B. 4’s harm to children in the Texas child welfare system implicates the equal protection rights of the children whether they or a family member are undocumented. See Plyler v. Doe, 457 U.S. 202, 215 (1982) (holding that undocumented children enjoy the same Fourteenth Amended equal protection rights as all children). As in Plyler, here it is difficult to conceive of a rational justification for penalizing children — particularly those subjected to abuse and neglect — simply because they have a parent or other relative caregiver who is an unauthorized immigrant. See id. at 220. In the State’s zeal to strike out against so-called Sanctuary Cities, it enacted a law of such breadth that any acts by county attorneys contrary to
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 15 of 24
immigration enforcement — whether undertaken in a misdemeanor criminal proceeding or in a civil matter such as a child welfare case — will be subject to S.B. 4’s harsh enforcement mechanisms.
It is also difficult to imagine what justifiable state interest exists in the face of federal child welfare policies requiring states to pursue policies to protect the child’s health and safety and pursue family reunification whenever possible. The State’s power to require county attorneys to act as S.B. 4 demands is further suspect given that the “States enjoy no power with respect to the classification of aliens.” Plyler, 457 U.S. at 225. While states may have some authority to act with respect to the undocumented, they do so when such action mirrors federal objectives and furthers a legitimate state goal. Id. But as explained above, when it comes to child welfare, federal policies conflict with S.B. 4. There is simply no national policy that supports the State in denying children in the child welfare system equal protection under the law simply because their parent or another relative caregiver is an unauthorized immigrant. See id. at 227.
When an attorney is faced with a situation where continuing to represent a client would result in a violation of the rules of professional conduct or other law, the attorney “shall withdraw.” TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X § 9). But an attorney cannot withdraw if doing so would have a material adverse effect on the client’s interest. Id. at 1.15(b)(1). At first glance, county attorneys could merely withdraw, but doing so would have an adverse effect on the client interest in protecting the best interest of the child and preserving families by depriving DFPS — and children — of counsel willing to advocate for the best interest of the child. S.B. 4 places county attorneys in an unwinnable, untenable ethical bind.
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 16 of 24
Nor would withdrawing avoid a violation of S.B. 4 given the breadth of its language and penalties. DFPS has the obligation to serve children’s best interest regardless of who represents it. Withdrawing from cases involving undocumented family members may in itself may implicate a pattern or practice. Given that S.B. 4 defines as a violation any endorsement of any policy, formal or informal, including as expressed by pattern or practice, which limits the enforcement of immigration laws, it is unclear whether withdrawing from representing DFPS would itself be a violation of the law.
Finally, ethics should be heightened when children are involved. See Plyler, 457 U.S. at 219-21 (discussing a special concern when children will bear the brunt of state action directed at punishing adults). Because S.B. 4 would create an ethical conundrum in child welfare cases, it should be enjoined.
C. Unless enjoined, S.B. 4 poses an immediate threat to the ethical duties of attorneys and more pointedly to the safety and constitutional rights of children.
Once in custody, all children have a right to be free from state-imposed unreasonable risks of harm. M.D. v. Abbott, 152 F. Supp. 3d 684, 696 (S.D. Tex. 2015) (finding the State of Texas violates the substantive due process right of children in foster care to be free from an unreasonable risk of harm including “a system where rape, abuse, psychotropic medication, and instability are the norm”). . In addition, children have “a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.” Id. at 696-97 (citation omitted). The trauma of being removed from the home and losing a parent or beloved relative caregiver as a result of immigration enforcement efforts is an irreparable harm which qualifies as such an intrusion into children’s emotional well-being, implicating the violation of their constitutional rights. Moreover, given the strain currently affecting this State’s foster care
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 17 of 24
system, the increased numbers of children placed in foster care under S.B. 4 would impact all children in care.
Having represented DFPS in hundreds of cases each year, the HCAO is well aware of the specific harms done to children and families in the child welfare system when parents or other caregivers of children, including United States citizen children, are subject to detention and deportation proceedings. Understanding these harms makes plain that prioritizing immigration enforcement in child welfare cases, as S.B. 4 would require, violates rather than protects the interests children have in safety, stability, and family unity.
First, DFPS relies heavily on Harris County residents and community members in order to protect children. See, e.g., TEX. FAM. CODE ANN. § 261.101 (West 2015) (requiring all persons in Texas to report abuse or neglect). However, immigrant communities who fear local government attorneys’ involvement with immigration enforcement efforts will no longer come forward to report abuse or neglect, to provide the information and evidence necessary to protect children, or to serve as relative or kinship placements for children who are in the State’s care.17 As a result, DFPS will have greater difficulty gathering evidence from community members who may have witnessed child abuse, and more children — regardless of their immigration status — will remain in abusive circumstances. Moreover, when children are placed in DFPS’s custody, more of them will be forced into foster care rather than remaining with family members or kindship caregivers because undocumented relatives will not step forward to help provide for them.
17 See Seth Freed Wessler, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, 55 (Applied Research Center 2011) (noting that undocumented relatives decline to come forward to care for children because they fear that interaction with the child welfare system will lead to their detention or deportation.) available at https://www.raceforward.org/research/reports/shattered-families.
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 18 of 24

Additionally, when parents are detained or deported, family reunification becomes impossible. As detailed above, DFPS is required by law to provide parents with reunification services as part of a family service plan. TEX. FAM. CODE ANN. §§ 263.101-.102 (West 2015). This plan must include specific tasks and services for parents to complete in order to obtain reunification with their children. Id. In addition to these services, it is commonly required of parents that they attend regular visits with their children. Moreover, a parent’s failure to participate in the rehabilitative services or to visit their children provides a basis to terminate their parental rights. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(N), (O) (West 2015) (allowing parental rights to be terminated when a parent fails to participate in tasks for reunification, or for failing to maintain significant contact with their children).18 However, when parents are detained in association with deportation proceedings, they are precluded from participating in these required services and visits.19 Detained parents are difficult to locate, and are frequently transferred to detention centers far from their homes and communities. Moreover, detention centers often do not offer the services required by DFPS’s family service plan, nor do they provide for visitation with children. As a consequence, parents who are detained become subject to the termination of their parental rights by virtue of their government detention rather than as a result of their conduct. Consequently, children of detained parents will languish in foster care, be precluded from seeing their parents, and will be subject to the legal termination of their parent-child relationships without any evidence of parental wrong-doing.

18 While 2017 amendments to this provision offer a “good faith effort” defense to failure to comply with the court’s order, that amendment requires that the failure is “not attributable to any fault of the parent.” Tex. H.B. 7, 85th Leg.,
R.S., § 12 (2017). Most courts would likely find “any fault” to include undocumented status and deportation.

19 See id. at 8, 38; Children’s Bureau, Issue Brief: Immigration and Child Welfare, 5 (U.S. Department of Health and

Human Services, Administration for Children and Families, 2015) available at

https://www.childwelfare.gov/pubPDFs/immigration.pdf; American Immigration Council, U.S. Citizen Children

Impacted

by

Immigration

Enforcement

(March,

2017)

available

at

https://www.americanimmigrationcouncil.org/sites/default/files/research/us_citizen_children_impacted_by_immigra

tion_enforcement.pdf.

Amicus Brief of Vince Ryan – Page 16

Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 19 of 24
As S.B. 4 broadly enlists local officials in immigration enforcement without regard to any traditional federal policy of prioritizing enforcement efforts on actual threats to public safety, children who are otherwise well-cared for by their parents will be forced into foster care simply because their parents are undocumented rather than as a result of any danger they caused to their children. As detailed above, under normal circumstances DFPS is only authorized to take custody of a child when there is a danger to his or her physical health or safety which is caused by a parent. See TEX. FAM. CODE ANN. §§ 262.101, 262.102, 262.104 (West 2015). Danger may include circumstances in which children are abandoned or left without adequate adult supervision. See TEX. FAM. CODE ANN. § 261.001(4) (West 2015). Consequently, when parents are detained or deported, DFPS will be forced to take custody of their children, even in the absence of child abuse or neglect. In counties where local authorities cooperate with federal enforcement efforts, as would be required under S.B. 4, foster children are approximately 30% more likely to have a parent detained or deported.20 The harm done to children and the child welfare system is significant. Children suffer the trauma of family separation with little hope of reunification, visits and reunification services are precluded when parents are held in detention centers, and the State and its foster care system bear the increased costs of prosecuting these cases, and housing and safely caring for the children involved. Notably, the vast majority of these children of unauthorized immigrant parents in Texas are United States citizens.
Immigration laws already can and do complicate child welfare cases and cause trauma to children of course either because someone has inserted immigration issues into a situation with a report to ICE or because of the prevalent and increasing fear in immigrant communities. HCAO
20 Wessler, supra note 4 at 27, 28; Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities: A View from the Ground, 2 (Center for American Progress, 2012) available at https://www.americanprogress.org/wp-content/uploads/2012/08/DrebyImmigrationFamiliesFINAL.pdf.
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 20 of 24
has collected some recent examples from CPS cases the office has handled of immigration enforcement unnecessarily increasing the trauma and danger to children.
• A father was able to provide care for his three children when a court placed them with him based on a finding that the mother was unfit. When the mother subsequently reported the father to ICE (presumably as revenge), he was apprehended and detained, at which point DFPS was notified. The father requested the three children be placed with his sister, but because of the children’s behavioral issues and medical needs, she was unable to provide for their care. The siblings were consequently split up and two of the three were placed in foster care.
• A father was provided with custody rights to his child in a CPS case. However, in a subsequent case involving a child born to the mother and thus a sibling to his child, he refused to come forward as a possible placement for the newly-born infant because he was afraid of being reported to immigration enforcement officials and deported. The infant was, as a result, placed in foster care.
• A child’s mother was deported, and she left the child with another couple in her community. Subsequently, that couple was deported and the child was left with a third family. DFPS became involved when it was reported the child was abused in this third home. The child was ultimately placed in foster care.
• A mother was deported to Honduras. She left her young minor daughter with two older half-sisters. Over the course of at least two years, the half-sister caregivers were physically and emotionally abusive to the child and the child
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 21 of 24
ultimately came in to the custody of DFPS. The child remains a ward of the State. • A one-year old baby was removed from his mother after the mother was displaying erratic and destructive behavior. The mother reported that the father is currently under an immigration hold, but HCAO has been unable to locate him through ICE. The baby was placed in foster care as there were no other suitable relatives for placement. • A newborn infant was removed from her mother upon birth because the mother was incarcerated. There were two potential kinship placements for the baby; however, one relative could not be a placement because she lacked documentation. Another relative was already caring for the mother’s two older children, but the oldest child also did not have any legal documentation. This particular relative feared participating with DFPS would negatively impact the undocumented child for whom she was caring. As a result, the newborn was placed in foster care. These examples highlight not only the irreparable trauma that children suffer, but also that by enlisting county attorneys who represent DFPS in efforts which lead to detention and deportation, S.B. 4 places them directly at odds with the federal and state mandates that they protect children’s best interest and work toward family reunification. All child welfare cases are unique and must be resolved based on the individual child’s circumstances. Should County attorneys prosecuting CPS cases instead be forced to engage in immigration enforcement, individual determinations of what is best for each child would be precluded. County attorneys
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Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 22 of 24
should not be conscripted into the enforcement of immigration laws in direct conflict with their duty to Texas children. IV. Conclusion
For the above reasons, S.B. 4 will do irreparable damage to this State’s child welfare process, place county attorneys charged with representing DFPS in an irreconcilable conflict, and do further trauma to children who have been placed in the State’s care. Further, there is no legitimate state purpose in treating children who have an unauthorized immigrant parent or other potential care giver differently in child welfare cases. These harms and the public’s interest warrant granting the Plaintiffs’ request for a preliminary injunction.
Respectfully submitted,
___/s/__Susan Hays____________________ SUSAN HAYS State Bar No. 24002249 LAW OFFICE OF SUSAN HAYS, P.C. P.O. Box 41647 Austin, Texas 78704 Telephone: (214) 557-4819 Facsimile: (214) 432-8273 hayslaw@me.com Counsel for the Office of the Harris County Attorney
Amicus Brief of Vince Ryan – Page 20

Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 23 of 24 CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing pleading on all parties, or their attorneys of record, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, this 11th day of July, 2017.
/s/ Susan Hays SUSAN HAYS
Amicus Brief of Vince Ryan – Page 21

Case 5:17-cv-00404-OLG Document 166 Filed 07/17/17 Page 24 of 24

Removal

Texas Child Welfare Case Progression

14 days 60 days 180 days 300 days

Adversary Hearing

Status Hearing

Permanency Permanency

Hearing

Hearing

1 year
Final Hearing

Department required to inquire about relatives or
kinship caregivers.
TFC 261.307

Department develops service plan, with
steps for reunification TFC 263.101-102
Department works with family to provide reunification services.

Department may only remove a child based on evidence showing there was an immediate danger to the child.
TFC: §§262.102-107

Court shall return child to the parents unless there continues to be a danger.
TFC: §§262.201, 262.205

Court approves service plan, which outlines
the steps necessary for the fami-
ly to be reunified.
TFC: §§263.101-02 263.201-202

Court reviews progress of case and compliance with service plan, including the Department’s efforts to locate relatives of the child for placement. The court must return the child if it is
safe to do so, and determine a date by which the child may be returned.
TFC: §263.304-306

Court must commence a fi-
nal hearing within a year of removal, or dismiss the case.
TFC: §§263.101-02
263.201-202

*”TFC” = Texas Family Code.

 
 Case 5:17-cv-00404-OLG Document 161 Filed 07/14/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs,

No. 5:17-cv-489-OG [Consolidated Case]

v. STATE OF TEXAS, et al., Defendants.

DEFENDANTS’ MOTION TO DISMISS OR TRANSFER THE CITY OF HOUSTON’S COMPLAINT IN INTERVENTION (ECF NO. 139)

1

Case 5:17-cv-00404-OLG Document 161 Filed 07/14/17 Page 2 of 4
On June 30, 2017, the Court granted the City of Houston’s Motion to Intervene. ECF No. 138. Texas now moves, pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, for this Court to dismiss the City’s Complaint in Intervention (ECF No. 139) or transfer it for consolidation with a related, first-filed matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS.1 Houston is located within the Southern District of Texas, has no connection to the San Antonio Division, and alleges that the actions that form the basis of its claims occurred or will occur within the confines of the Southern District. See ECF No. 139 ¶¶ 35–57. Venue is thus improper in the San Antonio Division.
In further support of this Motion, Texas incorporates by reference the arguments and authorities raised in its Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases, ECF No. 32-1, and requests that the City of Houston’s claims be dismissed, or alternatively, transferred to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.2
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is aware of the Court’s order but files this Motion to ensure that there is a responsive pleading to the City’s operative complaint on file. Moreover, Texas asserts that this case should be dismissed or transferred regardless of the outcome of the Austin Division case.
2 Courts within the Fifth Circuit have routinely accepted and addressed the merits of arguments that have been incorporated by reference to earlier-filed motions. See, e.g., Chaverri v. Dole Food Co., Inc., 2012 WL 2087409, at *3 (E.D. La. June 8, 2012) (noting that it was sensible for the defendant to incorporate by reference arguments raised in earlier motions to dismiss because the defendant raised many of the same arguments in those earlier motions); Phoenix Licensing L.L.C. v. CenturyLink Inc., 2015 WL 5786582, at *1 (E.D. Tex. Sept. 30, 2015). Indeed, in Travis County’s reply brief in support of its motion for intervene in this matter, the County incorporated by reference its earlier briefing in this case and its briefing in the Austin litigation. See ECF No. 47 at 1–2.
2

Case 5:17-cv-00404-OLG Document 161 Filed 07/14/17 Page 3 of 4
Respectfully submitted this the 14th day of July, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
3

Case 5:17-cv-00404-OLG Document 161 Filed 07/14/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 14th day of July, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
4

Case 5:17-cv-00404-OLG Document 161-1 Filed 07/14/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs,

No. 5:17-cv-489-OG [Consolidated Case]

v. STATE OF TEXAS, et al., Defendants.

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR TRANSFER THE
CITY OF HOUSTON’S COMPLAINT IN INTERVENTION (ECF NO. 139)

Before the Court is Defendants’ Motion to Dismiss or Transfer the City of Houston’s Complaint in Intervention (ECF No. 139). The Court finds that the motion is meritorious and should be GRANTED.

Case 5:17-cv-00404-OLG Document 161-1 Filed 07/14/17 Page 2 of 2
It is therefore ORDERED that the City of Houston’s Complaint in Intervention is [dismissed for improper venue] [transferred to the Austin Division of this Court].
SO ORDERED this the _______ day of _________________, 2017.
_______________________________________ HON. ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE

 
 Case 5:17-cv-00404-OLG Document 162 Filed 07/14/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ MOTION TO DISMISS OR TRANSFER TEXAS
ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS’ COMPLAINT IN INTERVENTION (ECF NO. 142)

1

Case 5:17-cv-00404-OLG Document 162 Filed 07/14/17 Page 2 of 4
On June 30, 2017, the Court granted the Texas Association of Hispanic County Judges and County Commissioners’ Motion to Intervene. ECF No. 141. Texas now moves, pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, for this Court to dismiss the Association’s Complaint in Intervention (ECF No. 142) or transfer it for consolidation with a related, first-filed matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS.1
For the reasons discussed in the Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases, ECF No. 32-1, which Defendants incorporate herein, venue is improper in the San Antonio Division and proper in the Austin Division. This is true regardless of the fact that some members of the Association may reside in this Division. See Complaint, ECF No. 142 ¶ 4; Memorandum of Law, ECF No. 32-1 at 4. It appears, moreover, that many members of the Association are located outside of this Division, further demonstrating why venue is improper here. Complaint, ECF No. 142 ¶ 4. Texas therefore requests that the Association’s claims be dismissed, or alternatively, transferred to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.2
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is aware of the Court’s order but files this Motion to ensure that there is a responsive pleading to the Association’s operative complaint on file. Moreover, Texas asserts that this case should be dismissed or transferred regardless of the outcome of the Austin Division case.
2 Courts within the Fifth Circuit have routinely accepted and addressed the merits of arguments that have been incorporated by reference to earlier-filed motions. See, e.g., Chaverri v. Dole Food Co., Inc., 2012 WL 2087409, at *3 (E.D. La. June 8, 2012) (noting that it was sensible for the defendant to incorporate by reference arguments raised in earlier motions to dismiss because the defendant raised many of the same arguments in those earlier motions); Phoenix Licensing L.L.C. v. CenturyLink Inc., 2015 WL 5786582, at *1 (E.D. Tex. Sept. 30, 2015). Indeed, in Travis County’s reply brief in support of its motion for intervene in this matter, the County incorporated by reference its earlier briefing in this case and its briefing in the Austin litigation. See ECF No. 47 at 1–2.
2

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Respectfully submitted this the 14th day of July, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
3

Case 5:17-cv-00404-OLG Document 162 Filed 07/14/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 14th day of July, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
4

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS OR TRANSFER TEXAS ASSOCIATION OF HISPANIC
COUNTY JUDGES AND COUNTY COMMISSIONERS’ COMPLAINT IN INTERVENTION (ECF NO. 142)

Before the Court is Defendants’ Motion to Dismiss or Transfer the Texas Association of Hispanic County Judges and County Commissioners’ Complaint in

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Intervention (ECF No. 142). The Court finds that the motion is meritorious and should be GRANTED.
It is therefore ORDERED that the Texas Association of Hispanic County Judges and County Commissioners’ Complaint in Intervention is [dismissed for improper venue] [transferred to the Austin Division of this Court].
SO ORDERED this the _______ day of _________________, 2017.
_______________________________________ HON. ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE

 
 Case 5:17-cv-00404-OLG Document 154 Filed 07/10/17 Page 1 of 28

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

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CITY OF EL CENIZO, TEXAS, et al.,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

STATE OF TEXAS, et al.

:

[Lead Case]

:

Defendants.

:

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EL PASO COUNTY, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

STATE OF TEXAS, et al.,

:

:

Defendants.

:

-------------------------------------------------------------

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CITY OF SAN ANTONIO, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

STATE OF TEXAS, et al.

:

:

Defendants.

:

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Civil Action No. 5:17-cv-459-OLG [Consolidated Case]
Civil Action No. 5:17-cv-489-OLG [Consolidated Case]

SUPPLEMENTAL BRIEF OF EL CENIZO PLAINTIFFS

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 ARGUMENT.................................................................................................................................. 1
I. THE DETAINER PROVISIONS VIOLATE THE FOURTH AMENDMENT.................. 1 A. SB 4’s Detainer Provisions Do Not Require Probable Cause of a Crime and Would Also Violate the Fourth Amendment Even if Probable Cause of a Crime Were Not Required. ...................................................................................................... 2 B. The Detainer Mandate Is Facially Invalid. ................................................................... 5 C. Plaintiffs Have Standing to Raise Fourth Amendment Challenges. ............................. 6
II. SB 4 IS PREEMPTED........................................................................................................ 9 A. SB 4 Is Preempted Because It Removes the Local Discretion Congress Intended to Preserve..................................................................................................................... 9 B. The Detainer Mandate Is Also Preempted for the Additional Reason that It Requires Local Entities To Make Immigration Status Determinations. ..................... 15
III. SB 4 IS UNCONSTITUTIONALLY VAGUE. ............................................................... 17 IV. THE ENDORSEMENT PROHIBITION VIOLATES THE FIRST AMENDMENT. .... 19 VI. SB 4 VIOLATES EQUAL PROTECTION...................................................................... 20 CONCLUSION............................................................................................................................. 21
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TABLE OF AUTHORITIES
Cases Abel v. United States,
362 U.S. 217 (1960) ................................................................................................................... 3 Aid for Women v. Foulston,
441 F.3d 1101 (10th Cir. 2006).................................................................................................. 8 Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) ................................................................................................................... 9 Arizona v. Johnson,
555 U.S. 323 (2009) ................................................................................................................. 15 Arizona v. United States,
567 U.S. 387 (2012) ....................................................................................................... 9, 14, 15 Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd.,
627 F.3d 547 (5th Cir. 2010)...................................................................................................... 8 Baker v. Wade,
743 F.2d 236 (5th Cir. 1984), on reh’g, 769 F.2d 289 (5th Cir. 1985)...................................... 7 Board of Education of Central School District No. 1 v. Allen,
392 U.S. 236 (1968) ............................................................................................................... 6, 7 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
489 U.S. 141 (1989) ............................................................................................................. 9, 12 Chamber of Commerce v. Whiting,
563 U.S. 582 (2011) ............................................................................................................ 14, 16 City of Los Angeles v. Patel,
135 S. Ct. 2443 (2015) ............................................................................................................... 6 Crane v. Johnson,
783 F.3d 244 (5th Cir. 2015)...................................................................................................... 7 Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000) ................................................................................................................... 9 Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) ................................................................................................................. 19 Evett v. DETNTFF,
330 F.3d 681 (5th Cir. 2003)...................................................................................................... 5 Exodus Refugee Immigration, Inc. v. Pence,
165 F. Supp. 3d 718 (S.D. Ind. 2016) ........................................................................................ 8
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Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) ................................................................................................................... 9
Groh v. Ramirez, 540 U.S. 551 (2004) ................................................................................................................... 4
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................................................................................... 9
In re Hecht, 213 S.W.3d 547 (Tex. Spec. Ct. Rev. 2006) ............................................................................ 20
Johnson v. United States, 135 S. Ct. 2551, 2560 (2015) ............................................................................................. 17, 18
Maryland v. Pringle, 540 U.S. 366 (2003) ................................................................................................................... 5
Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017).............................................................................. 2
Messerchmidt v. Millender, 565 U.S. 535 (2012) ................................................................................................................... 4
Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979).................................................................................................... 17
Overshown v. State, 329 S.W.3d 201 (Tex. App. 2010) ........................................................................................... 15
Paxton v. City of Dallas, 509 S.W.3d 247 (Tex. 2017) ...................................................................................................... 1
Powers v. Ohio, 499 U.S. 400 (1991) ................................................................................................................... 8
Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) ............................................................................................................. 9, 12
Regents of Univ. of Minn. v. NCAA, 560 F.2d 352 (8th Cir. 1977), abrogated on other grounds by NCAA v. Tarkanian, 488 U.S. 179 (1988).................................................................................................................... 7
Romer v. Evans, 517 U.S. 620 (1996) ................................................................................................................. 20
Santoyo v. United States, No. 16-855 (W.D. Tex. June 5, 2017).................................................................................... 2, 3
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Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014) ............................................................................................................. 20
Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016).................................................................................................... 19
Singleton v. Wulff, 428 U.S. 106 (1976) ................................................................................................................... 8
Three Affiliated Tribes of Fort Berthold Reservation v. World Eng'g, 476 U.S. 877 (1986) ................................................................................................................. 12
United States v. Webster, 750 F.2d 307 (5th Cir. 1984)...................................................................................................... 5
United States v. Williams, 2000 WL 1273407 (E.D. La. Sept. 5, 2000) .............................................................................. 5
Villas at Parkside Partners v. City of Farmer’s Branch, 726 F.3d 524 (5th Cir. 2013).................................................................................................... 15
Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971) ................................................................................................................... 4
Statutes 8 U.S.C. § 1103(a)(10).................................................................................................................. 13 8 U.S.C. § 1226(a) .......................................................................................................................... 3 8 U.S.C. § 1252c(a)....................................................................................................................... 13 8 U.S.C. § 1357(g)(1) ................................................................................................................... 13 Ariz. Rev. Stat. Ann. § 11-1051(H) .............................................................................................. 15 Tex. Code Crim. P. art. 2.251 ....................................................................................................... 15 Tex. Const. art. 85.001.................................................................................................................... 7 Tex. Const. art. 86.002.................................................................................................................... 7 Tex. Const. art. XVI, § 1(a) ............................................................................................................ 7 Tex. Gov’t Code § 752.051....................................................................................................... 6, 14 Tex. Gov't Code § 752.053 .................................................................................................... passim Tex. Gov't Code § 752.0565 ........................................................................................................... 6 Tex. Gov’t Code § 772.0073........................................................................................................... 1 Tex. Local Gov’t Code § 22.005 .................................................................................................... 7
iv

Case 5:17-cv-00404-OLG Document 154 Filed 07/10/17 Page 6 of 28 Other Authorities 161 Cong. Rec. H5411(daily ed. July 23, 2015)........................................................................... 11 161 Cong. Rec. H5414 (daily ed. July 23, 2015).......................................................................... 11 161 Cong. Rec. S7302 (daily ed. Oct. 19, 2015) ......................................................................... 11 H.R. Rep. No. 113-678 (2014)...................................................................................................... 11 H.R. 3003, 115th Cong., 1st. Sess., introduced June 22, 2017 ..................................................... 11 U.S. Const. art. VI........................................................................................................................... 7 U.S. Imm. & Customs Enforcement Policy No. 10074.2 (effective Apr. 2, 2017) ........................ 1
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INTRODUCTION Defendants do not defend the statute actually written by the legislature, and instead ignore significant parts of the statute or offer implausible interpretations of its language. See, e.g., Paxton v. City of Dallas, 509 S.W.3d 247, 257-58 (Tex. 2017) (“We reject the limitations the Attorney General champions because they are not textually supportable.”). Defendants also seek to convey the impression that SB 4 is a modest statute, but that cannot be squared with the text and structure of the law, or the law’s extraordinary penalties. Ultimately, Defendants repeatedly fall back on the argument that the Court and Plaintiffs need not worry about the broad sweep of the law’s text because the Attorney General would not bring a prosecution unless it were reasonable to do so. But officers and officials facing jail time, removal from office, and ruinous civil penalties cannot be made to rely on the discretionary goodwill of the Attorney General every time they make a decision that might be viewed as violating SB 4.1
ARGUMENT I. THE DETAINER PROVISIONS VIOLATE THE FOURTH AMENDMENT.
SB 4’s detainer provisions (Sections 2.01 and 5.02 of SB 4) mandate that local officials comply with ICE detainer requests, both formal and informal (which could be anything from a phone call to a verbal in-person request).2 The only exception is where the detainee can produce
1 In this reply brief, Plaintiffs address their likelihood of success on the merits. Plaintiffs’ opening brief addressed the remaining factors for a preliminary injunction. With this brief, Plaintiffs are simultaneously filing a post-hearing Proposed Order. 2 Defendants’ suggestion that SB 4 reaches only formal requests on ICE forms (Opp. 54 n.28) is directly at odds with SB 4’s text, which states that an “‘[i]mmigration detainer request’ means a federal government request to a local entity to maintain temporary custody of an alien, including a . . . Form I-247 document or a similar or successor form.” Gov’t Code § 772.0073(a)(2) (emphasis added). And ICE expressly permits these informal detention requests. U.S. Imm. & Customs Enforcement Policy No. 10074.2, ¶ 2.5 (effective Apr. 2, 2017).
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documentation of citizenship or lawful immigration status. The detainer provisions violate the Fourth Amendment.
A. SB 4’s Detainer Provisions Do Not Require Probable Cause of a Crime and Would Also Violate the Fourth Amendment Even if Probable Cause of a Crime Were Not Required.
SB 4’s detainer provisions violate the Fourth Amendment for two separate reasons. First, the provisions mandate that local officials enforce detainers where the federal government has not alleged probable cause of a crime, but only probable cause of a civil immigration violation. See Santoyo v. United States, No. 16-855 (W.D. Tex. June 5, 2017).3 Second, even assuming arguendo that local entities could be forced to honor detainers where there is only probable cause of a civil immigration violation, and not a crime, SB 4’s detainer provisions would still violate the Fourth Amendment. That is because SB 4 mandates blind compliance with detainers and does so without permitting local entities even to determine whether probable cause of a civil immigration violation exists. See El Cenizo PI Br. 30-34, Dkt. 24-1 (“PI Br.”).
1. Defendants claim that a local entity can be forced to honor a detainer even if there is no probable cause of a crime. But this Court has held otherwise. Santoyo, slip op. at 18; see also Mercado v. Dallas Cty., 2017 WL 169102, at *7-9 (N.D. Tex. Jan. 17, 2017). Santoyo is thus dispositive because Defendants (and the United States) concede that the federal government’s detainer requests are based on probable cause of a civil immigration violation, not a crime. Defendants argue, however, that Santoyo can be distinguished. The United States notes that the detainer in Santoyo was issued prior to ICE’s recent detainer policy, which provides for the issuance of detainers with administrative warrants based on civil probable cause. U.S. Br. 32-33; but see id. at 9 n.9 (the policy does not apply to detainers issued by CBP). But, just as in
3 Plaintiffs’ opening brief did not discuss Santoyo because the decision had not yet been issued. 2

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Santoyo, the new policy provides for detainers based only on probable cause of a civil immigration violation, whereas Santoyo held that there must be probable cause of a crime. ICE’s new policy is thus unresponsive to this Court’s ruling in Santoyo.4
2. Although Santoyo is dispositive here, SB 4’s detainer provisions also violate the Fourth Amendment by mandating that local officials detain individuals without allowing them to assess for themselves whether there is even probable cause of a civil immigration violation. The Court should find SB 4 unconstitutional on this ground as well. Because compliance with a detainer involves a new arrest and detention, a local entity must satisfy itself that probable cause exists before it undertakes the new 48-hour detention. Yet, under SB 4, a local entity must honor detainers with the sole exception being where the detainee provides documentary proof of citizenship or lawful status. That means that local entities must honor detainers in a variety of circumstances where there will be uncertainty regarding whether probable cause of even a civil immigration violation exists. For example, SB 4 would require local officers to honor a detainer where the individual could not produce affirmative documentary proof of status—even in cases where the officer has reason to believe that the individual (whose family he may know from the community) is a citizen or has some form of lawful status.5 It would also require local officials
4 The United States also attempts to distinguish Santoyo on the ground that the 76 days of detention in that case were longer than the detainer form’s 48-hour request. U.S. Br. 32. But this Court was very clear in Santoyo that its detainer holding requiring probable cause of a crime was explicitly limited to the initial “period of up to 48 hours,” and was not based on the additional 74 days of detention. Santoyo, slip op. at 16, 18. Texas and the United States also rely on cases and statutes that address only federal arrest authority and do not mention state or local authority. Opp. 50-52; U.S. Br. 34-35 (citing, for example, 8 U.S.C. § 1226(a) and Abel v. United States, 362 U.S. 217 (1960)). 5 For instance, an individual may have authority to remain in the country but not be carrying proof of that status at the time, or might not have even been given such a document. As the Bacon Declaration explains, there are close to 30 different immigration statuses that permit an individual to remain in the country, but not all of them come with documentation. Bacon Decl. ¶
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to honor detainers even where the ICE form was filled out incorrectly because it lacked a signature or the required boxes were not checked. See, e.g., Groh v. Ramirez, 540 U.S. 551, 563 (2004) (officers violated Fourth Amendment by executing warrant that was invalid on its face). Additionally, the detainer request may not come through an ICE form, but informally, making it virtually impossible for the local official to know whether requirements have been met. See PI Br. 31.
Defendants suggest that local entities can simply rely on ICE’s assurance that probable cause of an immigration violation exists. Opp. 52-53; U.S. Br. 33-37. But SB 4 does not require local officers to receive an assurance of probable cause before arresting. More fundamentally, law enforcement officers cannot be made to outsource their independent duty to determine probable cause. See, e.g., Messerchmidt v. Millender, 565 U.S. 535, 546-47 (2012) (holding that even for a judicial criminal warrant, arresting officers must determine whether it is reasonable to rely on the warrant’s representation of probable cause); Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971) (“[A]n otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”).
Insofar as Defendants are relying on cases allowing officers to rely on their “fellow officers’” determination of probable cause, that reliance is misplaced. Opp. 52-53; U.S. Br. 3537. Although the “fellow officer” rule allows an arresting officer to rely, under certain circumstances, on the probable cause determination made by another officer, arresting officers must be permitted to reject the determination of another officer where they have reason to believe the determination may be wrong. Otherwise they will be arresting and detaining
9-11, 30, 61. Many citizens will also not be carrying documentary proof of citizenship. See Watson Decl. ¶ 26 (estimating that in Texas more than one million Latinos alone lack photo ID).
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individuals for whom they have reason to doubt that probable cause exists. The fellow officer rule therefore cannot save SB 4’s detainer provisions, which do not permit local officials any discretion to make their own probable cause determination (except in the one situation where the detainee was lucky enough to have affirmative documentary proof of status). See, e.g., Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (fellow officer rule does not allow arresting officer to “disregard facts tending to dissipate probable cause”); United States v. Webster, 750 F.2d 307, 323-24 (5th Cir. 1984) (unreasonable to rely on request to carry out arrest because insufficient information was communicated); United States v. Williams, 2000 WL 1273407, at *6 (E.D. La. Sept. 5, 2000).
B. The Detainer Mandate Is Facially Invalid. Defendants contend that Plaintiffs cannot succeed on a facial challenge because not all detainer requests will lack probable cause. Opp. 53-54; U.S. Br. 32-33. But the mere fact that some detainer requests may be supported by probable cause does not mean that the law survives a facial challenge. In any event, under SB 4, every detainer arrest will violate the Fourth Amendment. The Fourth Amendment has both substantive and procedural requirements. The substantive requirement is that an arrest and detention be supported by probable cause. To enforce that substantive requirement, the Fourth Amendment also requires, as a procedural matter, that officers in each case make a particularized inquiry to determine whether probable cause exists. See Maryland v. Pringle, 540 U.S. 366, 371, 373 (2003). SB 4, however, precludes local entities from undertaking their own particularized assessment (whether that probable cause inquiry relates to a criminal offense or a civil immigration offense). Thus, in every case under SB 4, there is a procedural violation of the Fourth Amendment.
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The same was true in City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449-52 (2015), where the Supreme Court found that the statute precluded the necessary procedural steps and accordingly invalidated the law on its face. Patel involved searches of hotel records, but did not authorize a procedure for hotel operators to object to the search in advance. Notably, the Court observed that, substantively, most searches would likely be perfectly lawful, and that the procedurally-required safeguard would be used only “in those rare instances where a hotel operator objects to” the search. Id. at 2453. The Court nonetheless invalidated the law on its face on the ground that it lacked the requisite procedural safeguards in every case. SB 4 goes even further than the law struck down in Patel. SB 4 not only authorizes detentions that lack the required procedural safeguard (a particularized assessment of probable cause by the local entity), but requires detention without that safeguard (since local entities must honor a detainer except in the event the detainee happens to have affirmative documentary proof of status). And SB 4’s harsh penalties reinforce the need for facial invalidation.6
C. Plaintiffs Have Standing to Raise Fourth Amendment Challenges. 1. As the Supreme Court long ago made clear in Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 241 n.5 (1968), officials have standing to raise constitutional claims where they are faced with the untenable choice of either: (1) complying with an unconstitutional law and thereby violating their oath to uphold the Constitution, or (2)
6 Law enforcement officials can lose their jobs after mistakenly rejecting a detainer, even once, based on an incorrect belief that the person had proved lawful status. See Gov’t Code § 752.053(b)(3) (cannot restrict “enforcement assistance”); id. § 752.0565(b) (no scienter required for removal). Texas claims that removal requires an intentional violation, Opp. 57 n.30, but the provision it cites, § 752.053(a)(3), only requires intent for a department to incur fines by directly violating the detainer mandate. Section 752.053(b)(3), by contrast, applies to officials who instruct others regarding detainers. And Texas does not dispute that officials can be removed from office for accidental violations of § 752.053(b).
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abiding by their oath and refusing to comply with the law, thereby subjecting themselves to penalties for violating of the law. Here, the Plaintiff officials have each “taken an oath” to preserve, protect, and defend “the United States Constitution.” Allen, 392 U.S. at 241 n.5; U.S. Const. art. VI; Tex. Const. art. XVI, § 1(a); Tex. Local Gov’t Code §§ 22.005(a), 85.001(c), 86.002(b). Plaintiffs therefore have standing for the same reason the officials in Allen had standing: they must “choose between violating their oath” by enforcing an unconstitutional law or “taking a step—refusal to comply with [the law]”—that would subject them to harsh penalties. Allen, 392 U.S. at 241 n.5. Here, moreover, Plaintiffs not only face “expulsion from office,” id., but also crushing financial penalties and even jail time. “There can be no doubt that appellants thus have a ‘personal stake in the outcome’ of this litigation.” Id.; see also Baker v. Wade, 743 F.2d 236, 241 n.21 (5th Cir. 1984), on reh’g, 769 F.2d 289 (5th Cir. 1985) (indicating that “oath of office and the threat of a contempt citation” is “sufficient to confer article III standing”).7
Defendants misapprehend the nature of this standing doctrine in asserting that Plaintiffs’ claims are subject to the prudential “general rule” that parties may not assert the rights of third parties. Opp. 49. The officers are asserting “their own constitutional right” not to be forced to violate their oath. Regents of Univ. of Minn. v. NCAA, 560 F.2d 352, 364 (8th Cir. 1977) (emphasis added), abrogated on other grounds by NCAA v. Tarkanian, 488 U.S. 179 (1988). The standing analysis set forth in Allen does not hinge on the rights of the detainees, but on an official’s right not to be coerced into violating the Constitution. See id. (holding third-party standing doctrine inapplicable to claim that school administrators would be forced to violate students’ due process rights).
7 The serious threats Plaintiffs face are thus entirely different from cases in which the Fifth Circuit has held “the violation of one's oath alone is an insufficient injury” under Allen. See, e.g., Crane v. Johnson, 783 F.3d 244, 253-55 (5th Cir. 2015) (dismissing baseless concern about employment sanctions) (emphasis added).
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Moreover, even if the third-party doctrine did apply, it would be satisfied here. The Fourth Amendment and statutory rights of constituents in the officers’ custody are “inextricably bound up with the activity the [plaintiffs] wish[] to pursue”—declining unlawful detainers. Singleton v. Wulff, 428 U.S. 106, 114 (1976); see also Powers v. Ohio, 499 U.S. 400, 414 (1991) (relying on a “congruence of interests”). Their constituents also face impediments to raising these rights on their own. Lawsuits to enjoin individual detainers face “imminent mootness,” Singleton, 428 U.S. at 117, because the detention usually lasts fewer than 48 hours. And immigrants targeted by SB 4 “quite understandably have a desire to ‘lay low’ and not draw the attention to themselves that this suit would necessarily bring.” Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind. 2016); see also Singleton, 428 U.S. at 117; Torres Supp. Decl. ¶ 16.8
2. In addition, Texas LULAC independently has standing. First, its members have been held on immigration detainers and are very likely to be held on detainers in the future because of SB 4’s detainer mandate. See Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010); Torres Supp. Decl. ¶ 5-6, 9. The interests LULAC advances here are clearly germane to its purpose, and there is no reason why individual members would need to participate at this stage. See Ass’n of Am. Physicians, 627 F.3d at 550-53; Torres Supp. Decl. ¶ 5-6, 9-11. Second, Texas LULAC also has standing because it will be harmed in its own right, as SB 4 will force it to divert resources from its existing work to increase education and other
8 The Supreme Court has been “quite forgiving” in finding third-party standing “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights.” Aid for Women v. Foulston, 441 F.3d 1101, 1112 (10th Cir. 2006) (internal quotation marks omitted). SB 4 is highly unusual in punishing police officers, including with jail time, for failure to take actions that will lead to Fourth Amendment violations. The cases cited by Defendants do not involve similar circumstances. Opp. 49.
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activities in response to increased imprisonment on detainers. See Torres Supp. Decl. ¶ 12-14; Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). II. SB 4 IS PREEMPTED.
A. SB 4 Is Preempted Because It Removes the Local Discretion Congress Intended to Preserve.
Congress often must make difficult choices about how forcefully to constrain regulated parties, constantly balancing competing objectives. State laws that conflict with Congress’s “calibration of force” are preempted. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 380 (2000). This kind of preemption does not require an explicit statutory statement that Congress intends to leave some conduct unregulated. Instead, it occurs whenever Congress regulates an activity in detail but decides to leave a portion unregulated—in other words, through “inaction joined with action.” Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988).9 The “removal system Congress created” is exactly such a scheme. Arizona v. United States, 567 U.S. 387, 407 (2012).
As explained in Plaintiffs’ opening brief (PI Br. 13-19), Congress enacted a careful scheme in which it compelled local entities to authorize participation in only one area: the sharing of citizenship and status information under 8 U.S.C. § 1373; see 8 U.S.C. § 1644. Under Section 1373, local officials are not directed to seek immigration information or make immigration inquiries. Rather, under Section 1373, a line-official who happens to obtain immigration information may, but need not, share that information with the federal government.
9 This kind of preemption is common. See, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 425 (2003) (Congress sought voluntary compliance with insurance disclosure law); Geier v. Am. Honda Motor Co., 529 U.S. 861, 879-82 (2000) (Congress sought to allow gradual and flexible phase-in of passive restraint standards); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 167-68 (1989) (state could not “offer[] patent-like protection for ideas deemed unprotected under the present federal scheme”); Graham v. Richardson, 403 U.S. 365, 377 (1971) (“Congress ha[d] not seen fit to impose” a particular restriction on benefits for immigrants).
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If line-officers do choose to share that information, a state or local subdivision may not prevent them from doing so. The upshot of Congress’s decision to limit Section 1373 to information sharing, and no other activity, is three-fold.
1. SB 4’s specific anti-sanctuary provision governing information sharing (Gov’t Code § 752.053(b)(2)) is preempted because it regulates the same activity as Section 1373, but does so in a different manner. SB 4 imposes harsh penalties for violating the information sharing provision, while Section 1373 does not. That places SB 4’s information sharing provision in conflict with the congressional scheme. PI Br. 15-16 (explaining that state laws that impose different penalties than federal law are preempted).
2. All of the remaining sanctuary and detainer provisions in SB 4 are preempted for a different but equally straightforward reason: they require local entities to participate in areas other than information sharing, and thus go beyond the activity Congress chose to regulate in Section 1373. Under SB 4, a local entity may not, for instance, prohibit line-officers from engaging in immigration enforcement, whether that entails immigration inquiries at traffic stops or any other type of participation.10 But Congress made a specific decision in Section 1373 not to restrict local options in any area other than the sharing of information already in the possession of a local officer. In doing so, Congress balanced competing objectives and decided to leave local entities with broad discretion over how and when to use their resources for
10 Texas maintains that SB 4 only prohibits “local policies that categorically ban cooperation.” Opp. 4 (emphases added); see id. at 1, 9. But SB 4 manifestly goes further than simply banning policies in § 752.053(a). It also, in § 752.053(b), provides that a local entity may not limit anyone—including a single “commissioned peace officer” or “corrections officer”—from taking an enforcement action. Supervisors therefore face punishment any time they limit or prohibit an officer from undertaking some enforcement action. Indeed, elsewhere in its brief Texas ultimately admits that § 752.053(b) bars individual “actions” and “conduct,” not just policies. Opp. 5, 38.
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immigration enforcement. Because SB 4 eliminates that discretion, and imposes a Section 1373type provision on all immigration enforcement activities, it is preempted.
Notably, Congress has frequently looked at whether to expand Section 1373 and remove local discretion in areas beyond information sharing, but has not done so. PI Br. 16 (listing prior failed bills). Whether to expand Section 1373 is a decision solely reserved to the federal government, and indeed Congress is currently considering whether to do so. See H.R. 3003, 115th Cong., 1st. Sess., June 22, 2017 (would expand Section 1373 and add financial penalties).
The legislative history of these prior unsuccessful proposals makes clear that one of the main reasons for their rejection has been to preserve local discretion, with opponents consistently citing the importance of allowing local officials to address local needs. See, e.g., 161 Cong. Rec. H5414 (daily ed. July 23, 2015) (Sen. Edwards) (urging Senate to reject a bill similar to SB 4 because it would “undermine[] the policies that local communities have determined are appropriate for their localities”); 161 Cong. Rec. H5411(daily ed. July 23, 2015) (Sen. Polis) (opposing SB 4-type bill because it would “directly undermine[] the authority and judgment exercised by local law enforcement agencies,” and because “decisions behind policing communities and ensuring public safety are made by those in [local] jurisdictions”); 161 Cong. Rec. S7302 (daily ed. Oct. 19, 2015) (statement of Chuck Canterbury, Nat’l Task Force to End Sexual and Domestic Violence Against Women) (“S. 2146 undermines policies that local jurisdictions have determined are . . . appropriate for their respective communities.”); H.R. Rep. No. 113-678, pt. 1, at 229 (2014) (opposing SB 4-like bill because removing local discretion
11

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“would result in widespread discrimination based on race, ethnicity, and national origin” and “decreased public safety in communities around the country”).11
Texas is therefore wrong that Congress’s only reason for refusing to extend Section 1373 was a desire to avoid testing constitutional limits. Opp. 15-16. In any event, Congress could have easily extended Section 1373 to additional kinds of information-sharing, or enforced it through certain penalties, without raising meaningfully different constitutional concerns. See, e.g., 8 U.S.C. § 1231(i). But Congress instead chose a middle ground. Nor is Texas correct that the federal government cannot enforce Section 1373. Opp. 17-20. Section 1373 can be enforced the way countless other federal statutes are enforced: an injunctive action to compel compliance. The executive branch also claims it is enforceable through penalties. Dep’t of Justice, Dep’t of Justice Sends Letter to Nine Jurisdictions Requiring Proof of Compliance with 8 U.S.C. § 1373, Apr. 21, 2017.12 Congress is entitled to choose whatever level of sanctions it deems appropriate—financial, injunctive, or even “a voluntary approach”—without state interference. Garamendi, 539 U.S. at 425 (holding that Congress’s desire to seek voluntary compliance preempted any additional state penalties).
Significantly, Texas and the United States do not, and could not, contend that Congress has in fact required cooperation and assistance beyond information sharing. Instead, they offer
11 Texas and the United States incorrectly maintain that those failed bills are irrelevant to the preemption analysis. Opp. 21-22; U.S. Br. 22 n.12. Yet the Supreme Court has repeatedly held that states may not supplement a congressional scheme by adding rules that “Congress specifically considered . . . but did not provide.” Three Affiliated Tribes of Fort Berthold Reservation v. World Eng'g, 476 U.S. 877, 887 (1986). In Arizona, for instance, the Court held that Congress’s decision not to impose sanctions on unauthorized workers preempted state laws that imposed similar sanctions. 567 U.S. at 403-07 (citing Isla Petroleum, 485 U.S. at 503). See also Bonito Boats, 489 U.S. at 167-68 (same). 12 Available at https://www.justice.gov/opa/pr/department-justice-sends-letter-nine-jurisdictionsrequiring-proof-compliance-8-usc-1373.
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the following syllogism: (1) the State of Texas can choose to cooperate systematically on all immigration enforcement (even without entering into a formal agreement with the federal government under INA § 287(g), 8 U.S.C. § 1357(g)), and (2) Texas can then mandate that all cities and counties cooperate with the federal government, because cities and counties are mere political subdivisions of the State. The first proposition is addressed by other plaintiffs, who explain that wholesale cooperation on a systematic basis may be accomplished only through a formal agreement under § 1357(g) (a so-called 287(g) agreement). But even if the first proposition were correct, the second does not follow and is the fatal flaw in Defendants’ argument. In carefully crafting the INA, Congress paid close attention to the role of both the States and political subdivisions and expressly mentioned both in numerous provisions of the immigration statute. PI Br. 4 n.1 (listing provisions). Indeed, Section 1373 itself refers to both states and “local government[s].” Thus, Congress did not simply leave it to the States to decide how immigration law would be enforced at the local level, but made a deliberate decision to leave both states and cities with discretion, recognizing the controversial, costly, and complicated nature of immigration enforcement. See also 8 U.S.C. § 1103(a)(10) (allowing local participation only “with the consent of the head of the department”); 8 U.S.C. § 1357(g)(1) (allowing local enforcement only “to the extent consistent” with “local law”); 8 U.S.C. § 1252c(a) (same). SB 4 is a backdoor run around Congress’s decision not to eliminate the discretion of local jurisdictions to use their resources in the manner that best suits their needs.
3. Finally, the specific SB 4 provision governing immigration inquiries by line-officers (§ 752.053(b)(1)) is preempted for the additional reason that it mandates unilateral immigration enforcement by line-officers. Under SB 4, line-officers must now ask about immigration status whenever they detain someone, including during routine traffic stops. Texas seeks to soften the
13

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impact of this provision by claiming that it does not require line-officers to make these inquiries, but only prevents local entities from preventing them from doing so. Opp. 4. But that would create a bizarre scheme in which a sheriff or police chief would have to deal with some of his officers routinely making immigration inquiries while others chose not to do so, leaving the community with no consistency. Thus, not surprisingly, that is not the scheme SB 4 creates. See Opp. 16, 56, 73 (describing SB 4’s goal of statewide uniformity). SB 4 mandates that immigration inquiries be made.13
Texas and the United States14 contend the Supreme Court’s decision in Arizona upholding a state provision that required officers to verify immigration status saves SB 4’s inquiry provision. But the Arizona provision simply instructed officers to do exactly what Congress had invited in Section 1373(c)—verify immigration status with ICE—and nothing more. See Arizona, 567 U.S. at 394, 412, 413 (provision simply required officers to “contact ICE,” “communicate with ICE,” and “verify [] immigration status with ICE”). Critically, the Arizona provision did not mandate that line-officers engage in questioning or inquiries as to a person’s immigration status. SB 4, however, provides that local entities shall themselves make the immigration inquiry. And the Arizona provision was limited in a number of other ways that SB 4 is not. The Arizona provision required “reasonable suspicion” before an officer attempted to verify immigration-status information with ICE. SB 4, in contrast, has no such requirement,
13 SB 4’s definition of a “local entity” includes all “employees,” which in turn obviously includes line-officers. Gov’t Code § 752.051(5)(B). And because under SB 4 no “local entity” (i.e., “employee”) may engage in a “pattern or practice” of materially limiting immigration enforcement, an officer who routinely failed to inquire about immigration status whenever he detained an individual would plainly be violating the law. 14 The Executive Branch’s preemption arguments are entitled to no particular weight, as their rejection in both Arizona and Whiting makes clear. Accord Opp. 20 (“It is Congress—not the Executive—that has the power to pre-empt otherwise valid state laws.”) (internal quotation marks and alterations omitted).
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meaning that every motorist (and every passenger, see Arizona v. Johnson, 555 U.S. 323, 333 (2009); Overshown v. State, 329 S.W.3d 201, 207-09 (Tex. App. 2010)) may be harassed about immigration status—or, possibly, those motorists and passengers who “look” like immigrants. Further, and importantly, the Arizona provision, unlike SB 4, preserved significant local discretion by allowing officers and local agencies to limit status checks to situations where verification would be “practicable” and “reasonable.” Arizona, 567 U.S. at 413-14. Additionally, the Arizona provision, in contrast to SB 4, imposed no penalties for failure to make immigration inquiries. In upholding the Arizona provision, the Supreme Court relied heavily on these features of the law, all of which are absent in SB 4. Id.15
B. The Detainer Mandate Is Also Preempted for the Additional Reason that It Requires Local Entities To Make Immigration Status Determinations.
SB 4’s detainer mandate requires local officers to decide, on their own, whether a detainee is a U.S. citizen or “has provided proof” of “lawful immigration status.” Tex. Code Crim. P. art. 2.251(b); see Opp. 31-33 (not disputing this point). If a detainee cannot provide that documentation, a local entity must comply with the detainer request. See Tex. Code Crim. P. art. 2.251(a). Because SB 4 requires a local entity to determine whether a detainee has a lawful immigration status, it is preempted under the settled rule that only the federal government may make status determinations. Villas at Parkside Partners v. City of Farmer’s Branch, 726 F.3d 524, 536-37, 559 (5th Cir. 2013). Defendants argue, however, that SB 4 does not create its own immigration “classifications,” but simply asks the local entity to make a determination
15 Texas also points to a provision of Arizona law that limited sanctuary policies and imposed fines. Opp. 15, 27-28. But the Court in Arizona did not even mention those provisions, much less rule on their validity. In any event, the fine was not attached to § 2(B), the provision the Court upheld, and applied only to departments, whereas SB 4’s penalties apply to individuals. See SB 1070 § 2(G), Ariz. Rev. Stat. Ann. § 11-1051(H).
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whether the detainee has a lawful status under federal immigration law. Opp. 31-32. But that is a virtually impossible determination for a local entity to make on a routine basis. See Bacon Decl. ¶ 14-20. More fundamentally, the courts have already rejected this same argument. As the Fifth Circuit explained in Farmer’s Branch, Congress has preempted laws that require a local entity to determine whether an individual has a lawful immigration status, even if they are using federal immigration classifications to make that determination. 726 F.3d at 536-37, 559 (striking down housing law that required state courts to determine whether an individual had a lawful federal immigration status); see Chamber of Commerce v. Whiting, 563 U.S. 582, 611 (2011) (upholding state law because it “relie[d] solely on the Federal Government’s own determination of who is an unauthorized alien”) (emphasis added).
Defendants also argue that the lawful status determination cannot be the basis for a preemption finding, because it is simply an exception to the detainer mandate and operates for the benefit of the detainee, allowing detainees who can prove lawful status to avoid detention. That is semantics. Without changing the substantive meaning or operation, the mandate could equally have been phrased to say that officers must honor a detainer every time the subject fails to prove citizenship or status. Moreover, if the exception were severed, the detainer mandate would be that much more unconstitutional under the Fourth Amendment, as it would require the detention of even those who actually could produce documentary proof of lawful status. Thus, the local status determination is not some minor exception—it is central to SB 4’s operation.
*** In sum, SB 4 is preempted because (1) its information sharing provision (752.053(b)(2)) imposes different penalties than Section 1373, (2) the remaining provisions require more than just information sharing and thus go beyond the activity regulated by Section 1373, (3) the
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provision governing immigration inquiries is preempted for the additional reason that it mandates unilateral local immigration enforcement, and (4) the detainer mandate requires local entities to make immigration status determinations and is thus unlawful for that additional reason. III. SB 4 IS UNCONSTITUTIONALLY VAGUE.
A nearly unlimited set of actions could be said to “materially limit” immigration enforcement, making it impossible for police and officials to know when they will subject to penalties under SB 4. Indeed, the draconian penalties were undoubtedly intended to ensure that local officials would engage in immigration enforcement full tilt to avoid even the possibility of these penalties. Defendants argue that the phrase “materially limit” is not vague, but they fail even to acknowledge the Fifth Circuit’s decision invalidating a functionally identical phase on vagueness grounds. Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 832 (5th Cir. 1979) (striking down law prohibiting actions that “hamper or impede” airport business).
Moreover, SB 4’s long list of other prohibitions compounds its vagueness. See PI Br. 2526. In Krishna Consciousness, the phrase “hamper or impede” alone was too vague to enforce. 601 F.2d at 823. SB 4 is much worse because it embeds the vague phrase “materially limit” in a series of escalating prohibitions, each one of which must “proscribe actions not already reached by the other” ones. Id. Thus, “materially limit” must mean an impediment short of an outright “prohibition,” which is separately proscribed by SB 4. And officials must not only avoid actions that “materially limit” anyone’s enforcement activities, Gov’t Code § 752.053(a)(1), (b), but must also avoid informal or unwritten policies, id. § 752.051(6), “endorsing” such policies, id. § 752.053(a)(1), and, in addition, may not engage in any “pattern or practice” of limited enforcement, id. § 752.053(a)(2). See Johnson v. United States, 135 S. Ct. 2551, 2560 (2015)
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(“Each of the uncertainties in the residual clause may be tolerable in isolation, but their sum makes a task for us which at best could be only guesswork.”) (citation and quotes omitted).16
Defendants also contend that SB 4’s terms are not vague because those terms are used in other laws, Opp. 38, 39, but the Supreme Court rejected an identical argument in Johnson, noting that while “dozens of federal and state criminal laws use terms like ‘substantial risk,’” they do so in different contexts that make the expression’s meaning clear. 135 S. Ct. at 2561. Texas also argues that “materially limit” is not vague because it only covers policies “addressing immigration-law enforcement specifically, as opposed to routine police matters.” Opp. 38. But the activities covered by SB 4 involve both. Officials have no idea if they must permit their officers to patrol border regions, respond to immigration-related tips, share home addresses with ICE, or monitor day laborers. Texas has said nothing to add any clarity to SB 4.
Ultimately, Defendants appear to recognize that the SB 4 is vague and thus fall back on the argument that the statute cannot be invalidated on its face because there are at least some applications of the statute that are clear. Opp. 33-36. But the Supreme Court has squarely foreclosed that argument as well. In Johnson, the Court invalidated the law on its face even though certain conduct “clearly falls within the provision’s grasp.” 135 S. Ct. at 2561. In rejecting the very argument Texas makes here, the Court explained that the “supposed requirement of vagueness in all applications is not a requirement at all, but a tautology.” Id.
16 Similarly, SB 4 requires local officials to predict the meaning of both “materially limit” and “assisting or cooperating” as “reasonable or necessary.” Gov’t Code § 752.053(b)(3). Defendants argue these phrases only require that officials cooperate in response to an explicit federal request. Opp. 39. But that reads the term “assisting” out of existence. Defendants also assert that “regulated entities” need not “decide whether enforcement participation” is “reasonable or necessary,” because every federal request “puts covered entities on notice” that SB 4’s penalties are hanging over their heads. Id. But Defendants cannot really mean to say that no local priority could be urgent enough to justify turning down a federal enforcement request.
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Regulated parties cannot be forced to risk punishment without fair notice simply because the statute clearly applies somewhere. Id. IV. THE ENDORSEMENT PROHIBITION VIOLATES THE FIRST AMENDMENT.
Defendants do not seriously contend that Texas could prevent an elected official from speaking out against local immigration enforcement. Opp. 41-45. Instead, Defendants assert that the Court should adopt “a narrower construction” of the word “endorse” that would not include speech and would avoid constitutional concerns. Specifically, Defendants ask the Court to interpret “endorse” to mean “sanction” which, “in turn, means . . . to ratify or authorize.” Opp. 42-43. But courts do not use constitutional avoidance to revise statutes that threaten to chill constitutionally protected speech, because their “deterrent effect on legitimate expression is both real and substantial.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975). For that reason, the Fifth Circuit has recently followed “the Supreme Court’s decision not to ‘rely upon’ the canon of constitutional avoidance in the overbreadth context.” Serafine v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016) (quoting United States v. Stevens, 559 U.S. 460, 481 (2010)).
Moreover, Defendants’ revision would render the endorsement prohibition superfluous. SB 4 already prohibits what Texas proposes as its definition—“a use of official power . . . to ratify or authorize” a policy. Opp. 43. Using official power to “ratify or authorize” an impermissible policy means the same thing as “adopt[ing]” that policy or authorizing an impermissible “pattern or practice.” See Gov’t Code §§ 752.051(6), 752.053(a)(1) (officials may not even adopt an “informal, unwritten policy”); id. § 752.053(a)(2) (officials may not
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countenance an impermissible “pattern or practice”). Texas has offered no examples of what “endorse” could mean that these other SB 4 provisions do not already cover.17 VI. SB 4 VIOLATES EQUAL PROTECTION.
Plaintiffs have adopted practices to prevent unconstitutional discrimination by limiting local involvement in immigration. PI Br. 34-35; Reyes Decl. ¶ 28; Schmerber Decl. ¶ 20; Gupta Decl. ¶ 10; Torres Decl. ¶ 11-13; Acevedo Decl. ¶ 9, 12, 17; see also S. Hernandez Decl. ¶ 50; Bernal Decl. ¶ 12; McManus Decl. ¶ 5; Saldaña Decl. ¶ 5. SB 4, however, eliminates these prophylactic measures. By doing so, SB 4 violates equal protection under the Supreme Court’s political process cases. PI Br. 35-38. Defendants argue that the political process cases are limited to preventing state laws that directly authorize discrimination. Opp. 62. That is incorrect. This line of cases ensures that state laws do not foreclose local entities’ ability to prevent discrimination in the first place where, as here, there is a real risk of discrimination occurring. Gupta Decl. ¶ 10. Indeed, that is precisely what Justice Kennedy made clear in the very case on which Defendants rely most heavily, Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1636 (2014) (plurality opinion) (Kennedy, J.) (holding that localities must be able to “prevent injury caused on account of race”) (emphasis added).18
17 Indeed, in the case Texas cites for the meaning of endorse (Opp. 42), the court actually interpreted “endorse a candidate” to mean something whose prohibition in SB 4 would clearly violate the First Amendment—“a request or appeal for others to support” a limited enforcement policy. In re Hecht, 213 S.W.3d 547, 574 (Tex. Spec. Ct. Rev. 2006). 18 Defendants also argue that SB 4 does not fall under the political process cases because SB 4 is about immigration and does not have “a racial focus” or “address a racial problem.” Opp. 62 (citations and quotation marks omitted). But the Court in Schuette did not say that state laws were only invalid if they explicitly addressed race. Rather, it explained states could not preempt local policies when the state law carries “the serious risk, if not purpose, of causing specific injuries on account of race”). 134 S. Ct. at 1633. See also Romer v. Evans, 517 U.S. 620 (1996) (invalidating state law that did not address race at all).
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CONCLUSION The application for a preliminary injunction should be granted.

Dated: July 10, 2017
/s/ Lee Gelernt Lee Gelernt Omar C. Jadwat Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org samdur@aclu.org
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 asegura@aclu.org esaldivar@aclutx.org
Cecillia D. Wang Cody H. Wofsy Stephen Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org

Respectfully Submitted,
/s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com

Attorneys for the Plaintiffs 21

Case 5:17-cv-00404-OLG Document 154 Filed 07/10/17 Page 28 of 28

CERTIFICATE OF SERVICE

I, Lee Gelernt, hereby certify that on July 10, 2017 copies of this Supplemental Brief of El Cenizo Plaintiffs were electronically filed via the Court’s CM/ECF system.

Dated: July 10, 2017

/s/ Lee Gelernt Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org

Case 5:17-cv-00404-OLG Document 154-1 Filed 07/10/17 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

-------------------------------------------------------------

CITY OF EL CENIZO, TEXAS; MAYOR

:

RAUL L. REYES, City of El Cenizo;

:

MAVERICK COUNTY; MAVERICK

:

COUNTY SHERIFF TOM SCHMERBER

:

MAVERICK COUNTY CONSTABLE

:

PRECINCT 3-1 MARIO A. HERNANDEZ; :

and TEXAS STATE LEAGUE OF UNITED :

LATIN AMERICAN CITIZENS,

:

:

Plaintiffs,

:

:

v.

:

: Civil Action No. 5:17-cv-404-OLG

STATE OF TEXAS; GOVERNOR

:

[Lead case]

GREG ABBOTT, in his official capacity;

:

and TEXAS ATTORNEY GENERAL

:

KEN PAXTON, in his official capacity,

:

:

Defendants.

:

-------------------------------------------------------------

EL PASO COUNTY; RICHARD WILES,

:

SHERIFF OF EL PASO COUNTY, in his

:

official capacity; and the TEXAS

:

ORGANIZING PROJECT

:

EDUCATION FUND

:

:

Plaintiffs,

:

:

v.

:

:

STATE OF TEXAS; GOVERNOR

:

GREG ABBOTT; ATTORNEY GENERAL :

KEN PAXTON; and DIRECTOR STEVE

:

MCCRAW, TEXAS DEPARTMENT OF

:

PUBLIC SAFETY— in their official capacities, :

:

Defendants.

:

-------------------------------------------------------------

-------------------------------------------------------------

CITY OF SAN ANTONIO, TEXAS;

:

REY A. SALDANA, in his official capacity

:

Civil Action No. 5:17-cv-459-OLG [Consolidated case]

Case 5:17-cv-00404-OLG Document 154-1 Filed 07/10/17 Page 2 of 9

as San Antonio City Councilmember;

:

TEXAS ASSOCIATION OF CHICANOS

:

IN HIGHER EDUCATION; LA UNION

:

DEL PUEBLO ENTERO; and WORKERS

:

DEFENSE PROJECT,

:

:

Plaintiffs,

:

:

v.

:

:

STATE OF TEXAS; GREG ABBOTT, in his :

official capacity as Governor of the State of

:

Texas; KEN PAXTON, in his official

:

capacity as Attorney General of Texas,

:

:

:

Defendants.

:

-------------------------------------------------------------

Civil Action No. 5:17-cv-489-OLG [Consolidated case]

[SUPPLEMENTAL PROPOSED] ORDER GRANTING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUCTION

The Court has before it the Application for Preliminary Injunction (“Application”) filed by

Plaintiffs. Having considered the arguments raised by Plaintiffs and Defendants on the question

of whether the requested preliminary injunction should issue, the Court determines as follows

under Rule 65(d) of the Federal Rules of Civil Procedure:

1. Plaintiffs’ Application for Preliminary Injunction is GRANTED.

2. Defendants are ENJOINED from enforcing any part of Senate Bill 4 pending a final

judgment in this case.

3. The Court has determined that Plaintiffs are likely to prevail on the merits of their

claims.

a. First, Plaintiffs have demonstrated a likelihood of success on the merits of their

First Amendment challenge to Tex. Gov’t Code § 752.053(a)(1) (Section 1.01 of SB 4),

which provides that local entities may not “endorse” a policy that “prohibits or materially

2

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limits the enforcement of immigration laws.” Violation of the endorsement provision is punishable by civil fines and removal from office. Id. §§ 752.056, 752.0565. Individual Plaintiffs subject to this provision have expressed criticism of SB 4 and endorsed policies that limit local involvement in federal immigration enforcement. Schmerber Decl. (Ex. P-4) ¶ 9; M. Hernandez Decl. (Ex. P-5) ¶ 10; Reyes Decl. (Ex. P-7) ¶ 14; Prelim. Inj. Hr’g Tr. 15:2–16:8 (testimony of County Attorney Jo Anne Bernal); 214:11–219:2 (testimony of Judge Nelson Wolff), 244:24–245:20 (testimony of Councilmember Rey Saldaña). It is likely that Plaintiffs will prevail in their claim that the endorsement proscription is a ban on speech, discriminates on the basis of viewpoint, and violates the First Amendment. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Jenevein v. Willing, 493 F. 3d 551, 557–58 (5th Cir. 2007).
b. Second, Plaintiffs have demonstrated a likelihood of success on the merits of their claim that SB 4’s “sanctuary provisions”—Tex. Gov’t Code § 752.053(a), (b) (Section 1.01 of SB 4)—are unconstitutionally vague and therefore violate the Fourteenth Amendment’s guarantee of due process. A criminal or quasi-criminal law is unconstitutionally vague if it “(1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 421 (5th Cir. 2001). The sanctuary provisions include vague instructions that local entities may not “materially limit” federal immigration enforcement, Tex. Gov’t Code § 752.053(a)(1); may not engage in “pattern[s] or practice[s]” or “informal, unwritten polic[ies]” that “materially limit” federal immigration enforcement, id. §§ 752.051(6); 752.053(a)(2); and must provide “assistance” and “cooperation” to federal immigration officers as “reasona-
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ble or necessary,” id. § 752.053(b)(3). Violators are subject to fines and removal from office. Those Plaintiffs who are government officials make daily decisions about how to allocate resources within their agencies and guide the activities of their employees. Many common policing decisions will necessarily limit immigration enforcement actions. Schmerber Decl. (Ex. P-4) ¶ 19; Reyes Decl. (Ex. P-7) ¶¶ 18–19, 27; Prelim. Inj. Hr’g Tr. 11:19–13:3 (testimony of County Attorney Jo Anne Bernal), 235:19–236:19 (testimony of Councilmember Rey Saldaña). SB 4, however, provides local entities and officials insufficient notice as to which of these decisions will “materially limit” immigration enforcement and trigger penalties. Schmerber Decl. (Ex. P-4) ¶¶ 12–15; M. Hernandez Decl. (Ex. P-5) ¶¶ 10–13; Reyes Decl. (Ex. P-7) ¶¶ 16, 24, 27; S. Hernandez Decl. (Ex. P-101) ¶¶ 15, 29, 44– 46; Bernal Decl. (Ex. P-201) ¶ 13. It is likely that Plaintiffs will prevail in their claim that the “sanctuary provisions” are unconstitutionally vague on their face and must, therefore, be enjoined. See Johnson v. United States, 135 S. Ct. 2551, 2561 (2015); Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 832 (5th Cir. 1979).
Similarly, Plaintiffs have demonstrated a likelihood of success on the merits of their claim that SB 4’s “detainer mandate”—Tex. Code Crim. Proc. art. 2.251 (Section 2.01 of SB 4)—is unconstitutionally vague and violates the Fourteenth Amendment’s guarantee of due process. The detainer mandate requires officers to honor all detention requests from federal immigration agents unless officers determine that the target is a U.S. citizen or has a “lawful immigration status.” Tex. Code Crim. Proc. art. 2.251(b). Violating the mandate is a Class A Misdemeanor and exposes officials to removal from office. See Tex. Penal Code § 39.07 (Section 5.02 of SB 4); Tex. Local Gov’t Code § 87.031(c) (Section 5.01 of SB 4). Neither federal law nor SB 4 defines “lawful immigration status,” which is subject to multi-
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ple possible interpretations. Bacon Decl. (Ex. P-1) ¶¶ 9–17, 20–90. It is difficult for local law enforcement to determine “lawful immigration status” because of the complexity of immigration law. Gupta Decl. (Ex. P-3) ¶ 7; Bacon Decl. (Ex. P-1) ¶¶ 14-16; Schmerber Decl. (Ex. P-4) ¶ 9, 18; M. Hernandez Decl. (Ex. P-5) ¶ 14; Acevedo Decl. (Ex. P-9) ¶ 18. Moreover, many people do not have identification that will reflect their immigration status, and even if they do, there is no single government document that can prove “lawful immigration status,” because there is no single definition. Bacon Decl. (Ex. P-1) ¶¶ 9–17, 20–90. The provision is not severable, because it is the condition that determines whether the mandate applies, and because an exceptionless mandate would exacerbate the Fourth Amendment problems with the detainer mandate. It is therefore likely that Plaintiffs will prevail in their claim that the “detainer mandate” is unconstitutionally vague in violation of the Fourteenth Amendment. See Women’s Med. Ctr., 248 F.3d at 421.
c. Third, Plaintiffs have demonstrated a likelihood of success on the merits of their claim that SB 4’s “sanctuary provisions” and “detainer mandate”—Tex. Gov’t Code § 752.053(a)(1)–(2), (b) (Section 1.01 of SB 4); Tex. Code Crim. Proc. art. 2.251 (Section 2.01 of SB 4)—are preempted by federal law. The Immigration and Nationality Act contains a detailed scheme for the removal of non-citizens from the United States, which allows for limited participation by local law enforcement agencies. Within that scheme, Congress has restricted local agencies from blocking communication about citizenship and immigration status, but has otherwise chosen not to further restrict their discretion to tailor their participation to local needs. SB 4 conflicts with this system because it partially duplicates the federal scheme regarding information sharing but imposes different and harsher penalties than Congress chose and imposes a number of restrictions that Congress has expressly de-
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clined to impose. See Arizona v. United States, 567 U.S. 387, 402, 404–05 (2012); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 378–80 (2000); Villas at Parkside Partners v. City of Farmer’s Branch, 726 F.3d 524, 529–31 (5th Cir. 2013).
SB 4’s detainer mandate is preempted for the additional reason that it requires law enforcement agencies to honor all immigration detainer requests where the subject of the detainer cannot “provide[] proof” of citizenship or “lawful immigration status.” Tex. Code Crim. Proc. art. 2.251(a)–(b). It relies on local officers making unilateral determinations of immigration status. The “federal immigration scheme . . . leaves no room for a determination of immigration status” by state or local officials. Farmer’s Branch, 726 F.3d at 559 (Owen, J., concurring in part and dissenting in part); see also Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 611 (2011).
d. Fourth, Plaintiffs have demonstrated a likelihood of success on the merits of their claim that SB 4’s “detainer mandate”—Tex. Code Crim. Proc. art. 2.251 (Section 2.01 of SB 4)—violates the Fourth Amendment. Honoring a detainer constitutes “a new seizure for Fourth Amendment purposes,” and must therefore be supported by probable cause. Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015). The requisite probable cause must be for a criminal offense. Santoyo v. United States, No. 16-855, Doc. 36 (W.D. Tex. June 5, 2017). But the detainer mandate requires local officers to honor detainers issued based on probable cause of a civil immigration offense only. Moreover, even if probable cause of a crime were not required, and all that was required was probable cause of a civil immigration violation, SB 4’s detainer mandate would nonetheless violate the Fourth Amendment, because SB 4 requires local entities to honor detainers issued based on probable cause of a civil immigration offense only. It also requires them to honor detainers regardless of whether they believe
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that there is probable cause to believe that the person is a removable non-citizen. The detainer mandate thus prevents arresting officers from fulfilling their constitutional duty to assess probable cause before making a new seizure. It is likely that Plaintiffs will prevail in their claim that the “detainer mandate” is facially invalid as a violation of the Fourth Amendment. See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449–51 (2015); Maryland v. Pringle, 540 U.S. 366, 371, 373 (2003).
e. Fifth, Plaintiffs have demonstrated a likelihood of success likelihood of success on the merits of their claim that the entirety of SB 4 violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause does not permit states to preempt local efforts to “address or prevent injury caused on account of race.” Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1636 (2014) (plurality opinion). The governmental Plaintiffs, like other law enforcement agencies in Texas and across the country, have structured their agencies’ involvement in the immigration removal system to guard against a well-documented likelihood of racial profiling if untrained local law enforcement officials must engage in immigration enforcement. See Bacon Decl. (Ex. P-1) ¶ 7; Gupta Decl. (Ex. P-3) ¶¶ 6, 10; Schmerber Decl. (Ex. P-4) ¶ 20; Torres Decl. (Ex. P-6) ¶¶ 11–13; Reyes Decl. (Ex. P-7) ¶ 28; Acevedo Decl. (Ex. P-9) ¶¶ 9, 12, 17; S. Hernandez Decl. (Ex. P-101) ¶ 50; Bernal Decl. (Ex. P-201) ¶ 12; McManus Decl. (Ex. P-303) ¶¶ 6, 9; Saldaña Decl. (Ex. P305) ¶¶ 5, 7; Prelim. Inj. Hr’g Tr. 10:24–11:12 (testimony of County Attorney Jo Anne Bernal). States may not prohibit such efforts to prevent discrimination before it occurs. It is likely that Plaintiffs will prevail in their claim that SB 4 violates the Equal Protection Clause. See Schuette, 134 S. Ct. at 1631–36; Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).
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4. Plaintiffs have also established that there is a substantial threat that they will suffer irreparable injury if a preliminary injunction is not granted. Absent an injunction, the Plaintiffs who include government entities and officials will face numerous constitutional injuries, including the chilling of First Amendment rights and the inability to comply with their oath to follow the Constitution, including the Fourth Amendment requirement that arrests be justified by probable cause. The vague terms of the sanctuary provisions and detainer mandate will leave them uncertain as to how to implement or follow the law, and may subject them to civil and criminal penalties or removal from office. See Schmerber Decl. (Ex. P-4) ¶¶ 9, 10, 13, 17; M. Hernandez Decl. (Ex. P-5) ¶¶ 10–13; Reyes Decl. (Ex. P-7) ¶¶ 13, 15, 23–26; S. Hernandez Decl. (Ex. P-101) ¶¶ 35–37, 45, 51–52. Plaintiff LULAC will also suffer irreparable injury because its members face the prospect of unlawful detention and racial profiling. Torres Decl. (Ex. P-6) ¶¶ 11–13; Torres Supp. Decl. ¶¶ 6-10, 16. These constitutional injuries constitute per se irreparable harm. Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012). They are compounded by the injuries caused by the burden SB 4 will place on limited law enforcement resources, cutbacks to programs and activities dedicated to public safety, and a decrease in efficacy of government programs and public safety. See Schmerber Decl. (Ex. P-4) ¶¶ 11, 12; M. Hernandez Decl. (Ex. P-5) ¶¶ 15; Reyes Decl. (Ex. P-7) ¶¶ 16, 21, 24; S. Hernandez Decl. (Ex. P-101) ¶ 55; McManus Decl. (Ex. P-303) ¶ 5; Saldaña Decl. (Ex. P305) ¶ 4, 13; Prelim. Inj. Hr’g Tr. 11:19–17:4 (testimony of County Attorney Jo Anne Bernal), 235:19–236:19, 238:25–242:21 (testimony of Councilmember Rey Saldaña), 210:24–211:1 (testimony of Judge Nelson Wolff).
5. The preliminary injunction will preserve the status quo, in which local officials are not mandated by state or federal law to engage in immigration enforcement as required by SB 4
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and may use their discretion to determine the extent to which they wish to engage in immigration enforcement. The threatened injury to Plaintiffs thus outweighs any harm that might fall on the State of Texas from issuance of this injunction.
6. Issuance of this injunction will not disserve the public interest. The public has a substantial interest in ensuring that state laws are constitutional.
7. The Court exercises its discretion to not require Plaintiffs to provide security under Rule 65(c) of the Federal Rules of Civil Procedure. Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978).

Entered this ______ day of July, 2016.

_____________________________ Hon. Orlando L. Garcia UNITED STATES DISTRICT JUDGE

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 Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS; MAYOR )

RAUL L. REYES, City of El Cenizo;

)

MAVERICK COUNTY; MAVERICK

)

COUNTY SHERIFF TOM SCHMERBER; )

MAVERICK COUNTY CONSTABLE

)

PRECINCT 3-1 MARIO A. HERNANDEZ; )

and LEAGUE OF UNITED LATIN

)

AMERICAN CITIZENS,

)

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT, in his official capacity;

)

and TEXAS ATTORNEY GENERAL

)

KEN PAXTON, in his official capacity

)

)

Defendants

)

_____________________________________ )

)

EL PASO COUNTY; RICHARD WILES, )

SHERIFF OF EL PASO COUNTY, in his

)

official capacity; and the TEXAS

)

ORGANIZING PROJECT

)

EDUCATION FUND

)

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GOVERNOR

)

GREG ABBOTT; ATTORNEY GENERAL )

KEN PAXTON; and DIRECTOR STEVE

)

MCCRAW, TEXAS DEPARTMENT OF

)

PUBLIC SAFETY – in their official

)

capacities

)

)

Defendants

)

)

)

Civil Action No. 5:17-CV-404-OG [Lead Case]
Civil Action No. 5:17-CV-459-OG [Consolidated Case]

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 2 of 29

)

CITY OF SAN ANTONIO, TEXAS;

)

REY A. SALDAÑA, in his official capacity )

as San Antonio City Councilmember;

)

TEXAS ASSOCIATION OF CHICANOS )

IN HIGHER EDUCATION; LA UNION

)

DEL PUEBLO ENTERO; and WORKERS )

DEFENSE PROJECT

)

)

Plaintiffs

)

)

v.

)

)

STATE OF TEXAS; GREG ABBOTT, in

)

his official capacity as Governor of the

)

State of Texas; KEN PAXTON, in his

)

official capacity as Attorney General of

)

Texas

)

)

Defendants

)

Civil Action No. 5:17-CV-489-OG [Consolidated Case]

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION BY CITY OF SAN ANTONIO, TEXAS, REY A.
SALDAÑA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO, AND WORKERS DEFENSE PROJECT

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 3 of 29 TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 DISCUSSION ..................................................................................................................................2
I. SB 4 Violates The First Amendment .......................................................................2 II. SB 4 Is Preempted....................................................................................................4
A. SB 4 Is Field Preempted ..............................................................................4 B. Each Of SB 4’s Core Provisions Is Also Conflict Preempted. ....................9 III. SB 4 Violates The Fourth Amendment..................................................................13 IV. SB 4 Violates The Equal Protection Clause Of The Fourteenth Amendment. ...........................................................................................................17 CONCLUSION ..............................................................................................................................20
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TABLE OF AUTHORITIES
Page(s)
Cases
Abel v. United States, 362 U.S. 217 (1960).................................................................................................................15
Arizona v. United States, 567 U.S. 387 (2012)......................................................................................................... passim
Cervantez v. Whitfield, 776 F.2d 556 (5th Cir. 1985) ...................................................................................................15
Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011).................................................................................................................12
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) .............................................................................................................17
Hernandez v. Texas, 347 U.S. 475 (1954).................................................................................................................19
Lopez v. United States INS, 758 F.2d 1390 (10th Cir. 1985) ...............................................................................................15
LULAC v. Perry, 548 U.S. 399 (2006).................................................................................................................19
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...................................................................................................15
Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013) .......................................................................................18
Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017) ...........................................................................14
Moreno v. Napolitano, 213 F. Supp. 3d 999 (2016) .....................................................................................................15
Perez v. Abbott, – F. Supp. 3d – , 2017 WL 1450121 (W.D. Tex. Apr. 20, 2017) ............................................19
Perez v. Abbott, – F. Supp. 3d –, 2017 WL 1787454 (W.D. Tex. May 2, 2017) ...............................................19
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Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).................................................................................................................17
Reitman v. Mulkey, 387 U.S. 369 (1967)...........................................................................................................18, 20
Romer v. Evans, 517 U.S. 620 (1996).................................................................................................................18
Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013) ...................................................................................................14
Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014) .............................................................................................................18
Serafine v. Branaman 810 F.3d 354 (5th Cir. 2016) ................................................................................................. 3-4
Trujillo Santoyo v. United States, No. 5:16-CV-855-OLG, slip op. (W.D. Tex. June 5, 2017) ....................................................15
United States v. Ibarra, 493 F.3d 526 (5th Cir. 2007) ...................................................................................................15
United States v. Koss, 831 F.3d 259 (5th Cir. 2016), cert. denied, 137 S. Ct. 1812 (2017) ..........................................3
Veasey v. Abbott, – F. Supp. 3d –, 2017 WL 1315593 (S.D. Tex. Apr. 10, 2017)...............................................19
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)...........................................................................................................19, 20
Villa at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc) .............................................................................11, 12
Washington v. Davis, 426 U.S. 229 (1976).................................................................................................................18
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)...........................................................................................................18, 19
Statutes
8 U.S.C. § 1103(a) ...........................................................................................................................5
8 U.S.C. § 1252c ........................................................................................................................5, 16
8 U.S.C. § 1324(c) ...........................................................................................................................5
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8 U.S.C. § 1357......................................................................................................................5, 7, 16 8 U.S.C. § 1357(a) ...........................................................................................................................6 8 U.S.C. § 1357(c) ...........................................................................................................................6 8 U.S.C. § 1357(g) ................................................................................................................. passim 8 U.S.C. § 1373...................................................................................................................... 7-9, 11 8 U.S.C. § 1644............................................................................................................................8, 9 Ariz. Rev. Stat. § 11-1051(B) ................................................................................................ passim Ariz. Rev. Stat. § 13-3883 .......................................................................................................10, 11 SB 4 § 2.01, Art. 2.251(b)..............................................................................................................12 SB 4 § 2.01, Art. 2.251(a) ..............................................................................................................13 SB 4 § 752.053....................................................................................................................... passim SB 4 § 752.0565...............................................................................................................................3 SB 4 § 772.0073(2) ........................................................................................................................13 Rules and Other Authorities 8 C.F.R. § 287(g) .....................................................................................................................15, 16 8 C.F.R. § 287.5 .............................................................................................................................16 142 Cong. Rec. H 2475, 2476-77 (1996).........................................................................................7 Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement,
Form I-200 – Warrant for Arrest of Alien and Form I-205 – Warrant of Removal/Deportation, available at: https://www.ice.gov/detainer-policy...............................15 Dep’t of Homeland Sec., Office of the Inspector Gen., The Performance of 287(g) Agreements, OIG-10-63 (2010) ...............................................................................................18 Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement, Pol. No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, § 2.5 (Apr. 2, 2017), available at: https://www.ice.gov/detainer-policy ....................................14 Gustavo Valdes & Thom Patterson, Feds Accuse North Carolina Sheriff’s Office of Racial Profiling, CNN (Sept. 20, 2012) at http://www.cnn.com/2012/09/20/justice/north-carolina-justice-immigration .........................18
iv

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 7 of 29 Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/endorse (last visited July 7, 2017).......................................................3
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INTRODUCTION At the June 26, 2017 preliminary injunction hearing, the Court heard evidence and argument establishing that plaintiffs are likely to succeed in their constitutional challenge to SB 4 and will suffer irreparable harm if the State is not enjoined from enforcing that legislation. The State of Texas presented no evidence of its own at the hearing and conceded that if SB 4 is constitutionally infirm in the ways plaintiffs allege, irreparable harm would be established. In this post-hearing brief, the San Antonio Plaintiffs therefore do not further discuss irreparable harm, but instead focuses on four principal constitutional defects of SB 4 – the statute’s violation of the Supremacy Clause and of the First, Fourth and Fourteenth Amendments.1 We address the salient points in the 130 pages of briefing submitted by the State and the United States and show why their arguments cannot save SB 4. First Amendment. The State concedes that the “endorse” provision of SB 4 violates the First Amendment if the term “endorse” is understood to refer to speech. The State invites the Court to adopt a different reading of that term, but the authorities the State cites do not support that reading. Nor is excising the term from the statute viable. Other parts of SB 4 also violate the First Amendment, including the “public statements” clause in the statute’s penalty provision. Supremacy Clause. The US concedes that federal immigration statutes establish a comprehensive scheme governing the interaction of federal, state and local authorities in enforcing immigration law. Both the US and the State nevertheless dispute that SB 4 is preempted, arguing that a narrow carve-out in 8 U.S.C. Section 1357(g)(10) permits states to pass legislation governing local enforcement of immigration law. But subsection (g)(10) cannot sustain the weight the US and the State would have it bear. Nor does Arizona v. United States save SB 4. SB 4 is analogous to the provisions held preempted in Arizona, and is distinguishable in critical ways from the single narrow provision that escaped preemption there. Fourth Amendment. In seeking to show that SB 4 is consistent with Fourth Amendment
1 The San Antonio Plaintiffs include the City of San Antonio, Rey A. Saldaña, Texas Association of Chicanos in Higher Education, La Union del Pueblo Entero, and Workers Defense Project.
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limitations, the State and the US rely primarily on a new form ICE has begun to employ when making detainer requests, Form I-247. But nothing in SB 4 limits mandatory compliance with detainer requests to situations in which that form is used. And even if SB 4 were so limited, the new form would not cure the inherent Fourth Amendment problem, as it does not require a showing of criminal probable cause and cannot change the fact that state officials – as opposed to federal officials – lack the authority to detain individuals based on administrative warrants.
Fourteenth Amendment. Copious evidence presented before and during the hearing shows that SB 4 would prevent local entities from employing policies adopted to deter racial profiling. The State cannot refute this evidence and argues instead that SB 4 passes muster insofar as it contains no explicit racial classification. But the Supreme Court has held that when states act to block local anti-discrimination policies, the lack of explicit racial classification does not immunize their actions. Copious evidence also establishes that SB 4 was adopted with discriminatory intent.
DISCUSSION I. SB 4 Violates The First Amendment
In response to the First Amendment challenge brought by virtually every plaintiff in this litigation, the State largely folds. Because it cannot dispute that banning speech criticizing enforcement of immigration law would violate the First Amendment, the State argues that the term “endorse” in Section 752.053(a) does not actually apply to speech. In the alternative, the State invites the Court to excise the word “endorse” from the statute. Neither approach works.
The State’s interpretation of “endorse” is not credible. In an attempt to show that the word “endorse” does not implicate speech, the State cites a 1945 dictionary that, in its view, likens the term “endorse” to terms like “sanction” and “enact.” State Br. at 41-45.2 The current version of the dictionary on which the State relies, however, defines “endorse” – consistent with modern usage – as “approve openly, endorse an idea; especially: to express support or approval
2 We refer to the brief submitted by the State and related defendants on June 23, 2017 as “State Br.” We refer to the brief submitted by the United States on the same date as “US Br.”
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of publicly and definitely endorse a mayoral candidate.” http://www.merriamwebster.com/dictionary/endorse (last visited July 7, 2017) (emphasis in original). This definition – the one that is extant – plainly shows that “endorse” encompasses speech.
The State also argues that “endorse” should be interpreted synonymously with the two other actions prohibited by Section 752.053(a)(1) – “adopt” and “enforce,” which, according to the State, do not implicate speech. State Br. at 43. But no canon of construction instructs courts to interpret adjacent words in the same sentence of a statute as having identical meaning. Indeed, the applicable rules of construction lead to the opposite result, counseling courts to give meaning to each word so as to avoid surplusage. See, e.g., United States v. Koss, 831 F.3d 259, 264 (5th Cir. 2016) (“If possible, every word and every provision [of an enactment] is to be given effect . . . . None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence”) (citing Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)), cert. denied, 137 S. Ct. 1812 (2017).
Excising the word “endorse” cannot save SB 4. Implicitly recognizing that SB 4’s endorsement prohibition is unconstitutional, the State asks the Court to fix the problem by striking the word “endorse.” Even if permitted, this would be insufficient. Other language in SB 4 also runs afoul of the First Amendment. Most glaringly, SB 4 directs the attorney general to commence proceedings to remove an elected official from office “if presented with evidence, including evidence of a statement by the public officer, establishing probable grounds that the public officer engaged in conduct described by Subsection (a).” SB 4 § 752.0565 (emphasis added). Excising the word “endorse” from SB 4 would not change the fact that an impermissible prohibition on certain “statements” – that is, speech – is woven into the statutory scheme, including its penalty provisions.
Nor could the Court excise “endorse” from SB 4, even if this were otherwise a viable solution. In Serafine v. Branaman, another case involving a statute that violated the First Amendment, the Fifth Circuit rejected defendants’ invitation to rewrite the statute to make it constitutional, noting that a court is “bound by the statute as the legislature fashioned it.” 810
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F.3d 354, 366 (5th Cir. 2016). The Fifth Circuit further explained that it was “mindful of the Supreme Court’s decision not to rely upon the canon of constitutional avoidance in the overbreadth context,” and that “courts should impose a limiting construction on a statute only if it is readily susceptible to such a construction.” Id. at 369 (internal quotation marks and citations omitted). Because the “plain text” of the Serafine statute rendered it unconstitutional, the court declined to give it “an additional extra-textual limiting construction in a frantic attempt to rescue it.” Id. The same result should follow here. II. SB 4 Is Preempted
As the San Antonio Plaintiffs have discussed, SB 4 is both field preempted and conflict preempted. The State and the US dispute this, but their analysis in many ways confirms it.
A. SB 4 Is Field Preempted With respect to field preemption, the US agrees that the Immigration and Nationality Act contains a comprehensive scheme regulating the relationship between federal and local immigration enforcement. The US nevertheless argues that states are free to legislate in this area in light of 8 U.S.C. Section 1357(g)(10). But that provision, which narrowly permits state or local officials to communicate and cooperate with federal immigration enforcement personnel on an ad hoc basis, does not come close to bearing the weight the US seeks to place on it. The State takes a different approach, arguing that SB 4 is not preempted because it is aimed not at aliens but at law enforcement personnel. In this way, the State says, SB 4 is akin to Section 2(B) in Arizona v. United States, 567 U.S. 387 (2012). But SB 4 is critically different from Section 2(B), and the Arizona decision cannot save it.
1. Section 1357(g)(10) Confirms That SB 4 Is Preempted. In arguing that SB 4 is not subject to field preemption, the US concedes much of what it purports to dispute. Field preemption exists where Congressional intent to “displace state law altogether can be inferred from a framework of regulation so pervasive . . . that Congress left no room for the States to supplement it.” Arizona, 567 U.S. at 399 (citations omitted). In this case, the issue is not immigration generally nor even immigration enforcement but rather the way in
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which local authorities may work with federal authorities in enforcing immigration law. And in this area, the US acknowledges that Congress has enacted a complex and “comprehensive” set of provisions, including those governing “state and local cooperation in enforcement of the INA.” US Br. at 2-11, 16-24. The US also recognizes, as it must, that unilateral enforcement of immigration law by state or local officials is preempted. Hrg. Tr. at 140, 148 (Ex. A hereto).
The US nevertheless maintains that SB 4 is not preempted because it comes within the exception of Section 1357(g)(10). That subsection holds that, notwithstanding other provisions of Section 1357(g), state and local officials may communicate and cooperate with federal immigration authorities without the need for a written agreement with the Attorney General.
The US takes subsection (g)(10) out of context and greatly overstates its effect. Section 1357(g)(10), like Section 1357(g) as a whole, is one segment in an intricate web of detailed statutory provisions that regulate state and local involvement in immigration enforcement activities, and that delegate authority to enforce federal immigration law only in narrow and carefully defined circumstances. See, e.g., 8 U.S.C. § 1324(c) (providing state and local authority to enforce alien harboring provisions); 8 U.S.C. § 1103(a)(10) (providing state and local authority to enforce immigration laws during a mass influx); 8 U.S.C. § 1252c (providing for state and local authority to enforce criminal illegal reentry provisions with prior status confirmation from INS); 8 U.S.C. § 1357(g) (providing for state and local authority to enforce immigration law pursuant to a written agreement). Through these provisions, Congress has created a comprehensive regime for immigration enforcement and has carefully delineated the circumstances in which state and local officials may participate. See Arizona, 567 U.S. at 403 (explaining that a comprehensive federal framework “leads to the conclusion” that the government has occupied a field). This regime – the INA – displaces state law on the subject.
Indeed, even if Section 1357 were the only federal law on the subject, it would confirm that Congress has occupied the field of regulating state and local officers’ involvement in immigration enforcement. Section 1357 begins with a detailed and interrelated set of provisions allowing the Attorney General to designate particular federal officers to engage in carefully
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defined enforcement activities.3 Section 1357(g) then authorizes the Attorney General to work with state and local officials in specified circumstances, pursuant to a written agreement that identifies the particular officers who may participate, in particular ways, after appropriate training, under the direction and control of federal authorities, and only to the extent permitted by “local law.” 8 U.S.C. § 1357(g)(1)-(9). Against this backdrop, Section 1357(g)(10) simply provides that the other provisions of the statute are not to be construed as requiring a written agreement authorizing communication or cooperation with the Attorney General in certain areas.
Contrary to what the US argues, this narrow provision does not “invite” states to pass broad legislation like SB 4 or to issue directives to local law enforcement. Subsection (g)(10) nowhere empowers states to permit (or require) untrained and unsupervised local officers to engage in enforcement activities, as SB 4 does. Indeed, the suggestion that subsection (g)(10) invites such broad state action is nonsensical; the exception would swallow the rule. Under the State’s and the US’s reading, subsection (g)(10) would enable state or local officials to engage in far more extensive enforcement activities without a written agreement than they could with such an agreement. Even more bizarrely, under the State’s and the US’s reading, state and local officials operating under subsection (g)(10) would have greater authority and autonomy than federal officials, who must abide by the restrictions in Section 1357(a). See n.3. This cannot have been Congress’s intent.
The State maintains that its incursion into this field is nevertheless permitted when it is borne in mind that Congress may not, consistent with the Tenth Amendment, “commandeer” state resources for federal enforcement objectives. According to the State, subsection (g)(10) was crafted to permit states to do what Congress was constitutionally barred from doing. State Br. at 15-16, 20-21. This argument is difficult to credit. It is inconsistent with the existence of
3 See, e.g., § 1357(a) (authority to “interrogate any alien . . . as to his right to be or to remain in the United States”); 8 U.S.C. § 1357(a)(2), (4) (authority to make an “arrest” for violations of the federal immigration laws in specific circumstances); 8 U.S.C. § 1357(a)(3) (authority to “search for aliens” in specific circumstances); 8 U.S.C. § 1357(c) (authority to “conduct a search, without warrant,” of upon “reasonable cause” to suspect grounds to deny admission).
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Section 1373, in which Congress required state and local governments to provide information to ICE, without any apparent Tenth Amendment concerns. The legislative history of Section 1357 also reveals that Congress was grappling with a much different set of issues – indeed, with the same policy considerations concerning federal and local enforcement that SB 4 now purports to resolve in a different way. For example, Representative Latham sought an amendment that would have allowed the Justice Department to give local officials “the authority to seek, apprehend, and detain[ ] illegal aliens” without many of the conditions required under Section 1357(g). 142 Cong. Rec. H 2475, 2476-77 (1996). In response, other representatives raised concerns about local officials engaging in those activities without training and oversight.4 Meanwhile, Representative Jackson-Lee expressed concern about preserving trust between local authorities and the communities they serve:
I know how important it is for local law enforcement to establish trust with all of the ethnic and minority groups and communities in their cities. . . . It is dangerous to put immigration authority in these local law enforcements [sic] so that they cannot do their real job, which is to protect those communities and . . . engender trust in the community so that they can get the job done. . . . This is not the direction we should send local law enforcement, to make them the entrappers of individuals who may look different or speak a different language. Id. at 2478. The terms of this debate show anything but an intention to “invite” states to legislate new policies in this field. Instead, they show that Congress considered the same policy issues at stake in SB 4 – whether local officials may appropriately enforce federal immigration law without federal training or supervision, and whether they may do so without losing the trust of their communities. Congress resolved these policy matters by crafting a narrow exception to the written agreement and supervision requirements of Section 1357(g)(1)-(9), to extend only to communication with federal officials and cooperation with their efforts. This carefully calibrated provision, together with the numerous other statutes addressing state and local law enforcement,
4 See id. at 2477 (statement of Rep. Becerra) (“A law enforcement officer with the border patrol is taught and trained on how to conduct himself. . . . [A]s someone who is a member of an ethnic minority, it disturbs me when I hear that we will now have people who are not trained to do a specific type of law enforcement work out there doing something which has in the past caused harm, injury, and discrimination against certain classes of individuals.”)
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confirms that Congress has comprehensively legislated the matter of state and local collaboration with federal immigration enforcement. Supra at 5-6 & n.3.
The State also argues that it may enter this field because it has authority as a sovereign to police local entities, which are subservient to the State. However true this may be as a general matter, it cannot take precedence over federal preemption law. In the area of immigration enforcement, Congress plainly recognized state and local governments as separate entities. Among other things, a host of statutes – including those on which the State and the US rely in contesting preemption – address state and local law or states and their subdivisions separately.5 Because Congress has separately regulated the activities of local entities in the area of cooperative immigration enforcement, it has left no room for the states to do so.
2. Arizona Does Not Save SB 4. The State contends that SB 4 survives preemption because it addresses law enforcement officials rather than aliens directly, and thus is analogous to Section 2(B) in Arizona. State Br. at 26-27. But the two statutes are critically different. Section 2(B) is a narrow provision: It requires state officers to perform immigration status checks of a detained person during a lawful detention or after release. “The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.” 567 U.S. at 411. Section 2(B) is a limited mandate about communication that interlocks directly with federal mechanisms. SB 4, of course, is far broader and is in no way bounded by existing federal structures or constitutional safeguards. SB 4 purports to dictate the relationship between federal and local law enforcement across a wide range of activities. It governs what local officials may say about
5 E.g., 8 U.S.C. § 1373(a) (“a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or 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”); 8 U.S.C. § 1644 (“no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States”); 8 U.S.C. § 1357(g)(10) (“Nothing in this subsection shall be construed to require an agreement . . . in order for any officer or employee of a State or political subdivision of a State” to communicate or cooperate with the Attorney General in specified ways).
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immigration enforcement, what policies they may adopt on the subject, which enforcement actions they may prohibit and which actions they must allow. It also authorizes line officers to investigate and in certain instances determine immigration status and does not subject those activities to federal guidance. Nothing in the Arizona Court’s discussion of Section 2(B) indicates that such broad regulation of local enforcement survives field preemption.
The US acknowledges in this case that a “comprehensive federal statutory regime” already “contemplates state and local cooperation in enforcement of the INA” – and that SB 4 addresses precisely the same subject. Under Arizona, such “complementary” state laws – even if they are “parallel to federal standards,” which SB 4 is not – cannot survive if the federal government occupies the field. 567 U.S. at 401. That is the case here.
B. Each Of SB 4’s Core Provisions Is Also Conflict Preempted. Section 752.053. As discussed, Congress struck a careful balance in Section 1357(g) and other provisions of the INA, authorizing local officials to enforce federal immigration law only under narrowly drawn circumstances, only on a voluntary basis, and always directed or supervised by the federal government. Section 752.053 upsets this balance by eliminating policies that prohibit or even limit local enforcement activities. As a result, it strips away the safeguards of federal training and supervision and gives local officials unilateral discretion to enforce federal immigration law. This directly conflicts with Congress’s scheme. Both the US and the State again argue that this fits within Section 1357(g)(10). But nothing in that subsection authorizes the enactment of state legislation to control local officials in matters of immigration enforcement. Subsection (g)(10) permits local officials to communicate and cooperate in prescribed ways with federal officials without a written agreement – nothing more. Section 752.053, by contrast, requires local entities to permit their officers to engage in a broad range of enforcement activities. SB 4 thus falls far outside the scope of Section 1357(g)(10). It similarly conflicts with 8 U.S.C. Sections 1373 and 1644, which make mandatory only the sharing of records between local and federal officials. Again as with field preemption, the US and the State seek to analogize SB 4 to Section
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2(B) in Arizona. But the statutes are not analogous at all. Section 2(B) narrowly specifies that a detained individual’s immigration status “shall be verified with the federal government” pursuant to federal law. Ariz. Rev. Stat. § 11-1051(B). By its terms, local officials are required to find out from ICE what ICE has determined about the individual’s status; they are not authorized to determine lawful status on their own or otherwise initiate unsupervised enforcement activities.
Section 752.053 is fundamentally different. It requires local entities to permit their officers to engage in “the enforcement of immigration laws” and to “inquir[e] into the immigration status of a person under a lawful detention or under arrest,” all without consultation with ICE, and without any guidance as to how to evaluate or respond to the information elicited. The statute further allows local officials to make independent inquiries and to determine for themselves whether individuals have lawful status. The statute thus puts local officers in the position of unilaterally initiating and leading enforcement activities – something the US has conceded is preempted. Hrg. Tr. at 140, 148; see also Arizona, 567 U.S. at 413 (“it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision . . . . [The] program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism”).
Nothing in Arizona permits a law like SB 4. In holding that Section 2(B) did not conflict with federal law, all the Supreme Court determined was that the federal scheme allowed for “a policy requiring state officials to contact ICE as a routine matter.” Arizona, 567 U.S. at 413. It did not hold that federal law leaves room for a policy allowing local officials to conduct independent inquiries of detained individuals or to follow up those inquiries in unspecified ways.
In reality, SB 4 is analogous to a different provision of the Arizona statute – Section 6, which empowered local officials to arrest individuals they determined to be removable. Section 6 was preempted because it provided “greater authority” to untrained local officials than Congress had given to trained officers under federal law and allowed local officials to engage in enforcement activities “without any input from the Federal Government.” Id. at 409. SB 4, as discussed above, does the same. SB 4 goes beyond the limited circumstances of Section 1357(g)
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and impermissibly allows “local officials to engage in enforcement activities as a general matter.” Id. Because this necessarily “creates an obstacle to the full purposes and objects of Congress” in specifying more limited areas for local participation in immigration enforcement, id. at 411, SB 4, like Section 6, is conflict preempted.
Penalty provisions. As the Court knows, SB 4 imposes harsh penalties both for purported violations of Section 752.053 and for purported violations of the detainer provision. Both sets of penalties conflict with federal law by penalizing what federal law permits. As discussed, local cooperation with federal immigration enforcement is almost entirely voluntary under federal law; the sole exception is Section 1373, which requires information sharing. SB 4 makes mandatory what would otherwise be voluntary, and imposes severe sanctions – including removal from office and jail time – for noncompliance. This is at the very least a “conflict in the method of enforcement” or “conflict in technique,” which is “fully as disruptive to the system Congress erected as conflict in overt policy.” Id. at 407. As both the Fifth Circuit and the Supreme Court have emphasized, “conflict is imminent when two separate remedies are brought to bear on the same activity.” Villa at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 530 (5th Cir. 2013) (en banc plurality) (discussing Supreme Court precedent).
The State suggests that the absence of comparable penalty provisions in federal immigration law permits state sanctions, and reflects only that the Tenth Amendment prevented Congress from demanding cooperation from local law enforcement. This is wrong for at least two reasons. First, Arizona confirms that the lack of penalties in a federal law does not mean that states are always free to fill any perceived gap. See 567 U.S. at 403 (federal law preempts state provision that creates “a state criminal prohibition were no federal counterpart exists”). Second, as discussed above, the existence of Section 1373 confirms that Congress did not believe the Tenth Amendment was an obstacle to federal statutes requiring local law enforcement to permit communication with the federal government. Because the harsh penalty provisions of SB 4 constitute a technique for enforcing federal immigration law that conflicts with the framework
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for voluntary participation Congress has constructed, the penalty provisions are preempted.6 Detainer provisions. Finally, SB 4’s detainer provisions cannot survive conflict
preemption. Like Section 752.053, these provisions convert what is voluntary under federal law – compliance with ICE requests – into a mandatory duty, the purported breach of which is punishable by jail time. The detainer provisions also require untrained law enforcement officers to consider whether a person “has lawful immigration status in the United States” for the purpose of deciding whether to release that person from detention. SB 4 Art. 2.251(b). Both the Supreme Court and the Fifth Circuit have held that a state or local law is preempted when it requires non-federal officials to make determinations of federal immigration status. Arizona, 567 U.S. at 408-09; Farmers Branch, 726 F.3d at 531-34 (law preempted where local actors would need to determine whether non-citizens are “lawfully present”) (plurality op.).
The State argues that the local determination of “lawful immigration status” required by SB 4 is not preempted because it is purely “ameliorative” – that is, it can only help individuals otherwise subject to an ICE detainer, since they will be released if they can produce papers demonstrating their lawful status. State Br. at 32. The State also argues that to the extent the “lawful immigration status” provision is problematic, it can simply be excised. Id. at 32-33. This misses the point. As discussed above in connection with SB 4’s unconstitutional restriction of speech, courts must take statutes as the legislature has fashioned them, and may not rewrite them at will. In any event, removing the “lawful immigration status” provision would simply
6 The State argues that SB 4’s penalty provisions escape conflict preemption under Whiting, in which the Supreme Court upheld an Arizona law that permitted the state to revoke the licenses of business that knowingly employed unauthorized workers. State Br. at 18, 28-29 (citing Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011)). What the State leaves out, however, is that the federal statute at issue in Whiting specifically reserved to the states the authority to impose sanctions in the form of license revocation. 563 U.S. at 595, 600-01. The State does not and cannot point to any comparable penalty savings clause in the statutes at issue here. The State also argues that a second provision at issue in Whiting shows that SB 4 is not preempted – the provision requiring employers to use the federal E-Verify database to confirm a worker’s eligibility for hire. State Br. at 28-29. But SB 4 goes far beyond requiring local officials to consult federal databases. SB 4 requires local entities to permit their officers to make immigration status determinations on their own and otherwise engage broadly in “the enforcement of immigration laws.” SB 4 § 752.053(a)(1).
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create new and even starker preemption and Fourth Amendment problems. It would heighten the preemption problem insofar as local officials could be punished for releasing even detainees who were able to make a persuasive showing that they were not legitimately subject to an ICE detainer request. And it would heighten the Fourth Amendment problem by subjecting such detainees to additional restraint, notwithstanding their ability to persuade local officials that they should be released. Thus, while the “ameliorative” clause is not sufficient to cure the multiple constitutional infirmities in the detainer provision, excising the clause would plainly make matters worse. It does not provide a way around conflict preemption. III. SB 4 Violates The Fourth Amendment.
The San Antonio Plaintiffs have shown that SB 4 violates the Fourth Amendment in two ways. First, Section 2.01 forces local officials to hold individuals without probable cause of a crime and beyond the time they would otherwise be released. Second, Section 752.053 permits local police to question and hold individuals for civil immigration violations without criminal probable cause so long as they believe they are assisting federal agents.
The State and the US contend that these issues are insignificant because the federal government has now adopted a new form for detainer requests, Form I-247, which includes what they view as “procedural safeguards.” US Br. at 30-33; State Br. at 52-53. For numerous reasons, Form I-247 does not cure the Fourth Amendment violation. The form has no application under Section 752.053, in which local officers in the field are permitted to make immigration inquiries and hold individuals for suspected immigration offenses without federal interaction and without Fourth Amendment protections. And in the context of detainer requests, nothing limits the obligations of local officials to situations in which Form I-247 is used. Rather, local officials must comply with “any” detainer request “including” – but not limited to – requests made by means of the new form. SB 4 § 2.01, Art. 2.251(a)(1) & § 772.0073(2). Form I-247 is listed as an example of a detainer request in SB 4, but nothing excludes other kinds of detainer requests, including those that contain none of the “procedural safeguards” purportedly embodied in Form I-247. Indeed, nothing in SB 4 excludes informal or oral requests, and the
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State’s suggestion that the use of such requests would “buck[] existing ICE policy” is cold comfort in this setting. State Br. at 54. Whether or not a detainer request complies with “existing ICE policy,” local officials face jail time if they decline to comply with it.7
But even if SB 4’s detainer provisions were limited to situations in which Form I-247 is used, SB 4 would violate the Fourth Amendment. The US does not and cannot dispute that the form requires only probable cause of removability, not criminal probable cause. US Br. at 33. This is critical: “Because civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity.” Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 465 (4th Cir. 2013). By the same token, “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns . . . [as, for example, a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Arizona, 567 U.S. at 396 (internal citations omitted); see also Mercado v. Dallas Cty., 2017 WL 169102, at *7 (N.D. Tex. Jan. 17, 2017) (knowledge of a civil ICE detainer alone does not give state officers probable cause “to detain the plaintiffs after they were otherwise eligible for release”).
Even if local officials could detain an individual based on a civil immigration probable cause determination, moreover, the Fourth Amendment problem would remain. The probable cause determination under Form I-247 is made not by the local official required to hold an individual but instead by the federal employee making the detainer request. The State argues that the knowledge of the latter can be imputed to the former through the doctrine of “collective knowledge,” but that doctrine applies only where there is “some degree of communication
7 It is also dubious that an informal request would in fact be contrary to ICE policy, given that the cited policy does not, for example, preclude a local agency from “detaining an alien while an ICE immigration officer responds to the scene.” Dep’t of Homeland Sec., ICE, Pol. No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, § 2.5 (Apr. 2, 2017), available at: https://www.ice.gov/detainer-policy.
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between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). SB 4 requires no such communication, and mandates compliance with all detainer requests, regardless of whether communication has occurred. The required compliance would impermissibly result in a situation in which “individuals who are the subjects of ICE detainers are detained by [local] officials who make no assessment, and have no knowledge, regarding whether probable cause exists that those individuals have committed any crime.” Trujillo Santoyo v. United States, No. 5:16-CV-855OLG, slip op. at 13 (W.D. Tex. June 5, 2017) (emphasis added).
The “collective knowledge” doctrine is also inapplicable in this setting because federal and state officials simply have different degrees of authority in detaining individuals suspected of immigration violations. The State and the US cite decisions holding that that federal officers may rely on administrative immigration warrants to arrest suspected aliens, but those authorities do not suggest that state officers may also do so without violating the Constitution.8 To the contrary: “Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer.” Arizona, 567 U.S. at 408. Indeed, as the Supreme Court has made clear in the context of preemption, “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” Id. at 413. Local officers do not have the authority to enforce federal civil immigration law absent an authorizing agreement pursuant to Section 287(g) of the INA. Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012).9
8 Compare Abel v. United States, 362 U.S. 217 (1960) (individual arrested by INS pursuant to an administrative warrant); Lopez v. United States INS, 758 F.2d 1390 (10th Cir. 1985) (driver’s license confiscated by INS officers); and Moreno v. Napolitano, 213 F. Supp. 3d 999 (2016) (challenging INS detention procedures) with Cervantez v. Whitfield, 776 F.2d 556, 559-60 (5th Cir. 1985) (noting that “local law enforcement agencies do not have authority to question, arrest, or detain persons solely on the grounds that they may be deportable aliens”). 9 ICE’s own website confirms that administrative warrants are to be used not by state officials but by “[a]ny immigration officer.” Dep’t of Homeland Sec., ICE, Form I-200: Warrant for Arrest of Alien and Form I-205: Warrant of Removal/Deportation, https://www.ice.gov/detainerpolicy. Additionally, the Code of Federal Regulations limits officers who are “authorized and designated to exercise the power . . . to execute warrants of arrest for administrative immigration violations” to “immigration officers who have successfully completed basic immigration law
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The State next argues that SB 4 “merely codifies” the premise, discussed in Arizona, that local officers may cooperate with federal immigration officials carrying out enforcement activities, including taking those suspected of being unauthorized into custody. State Br. at 50 (citing Arizona, 567 U.S. at 408-11). That premise, of course, is already codified in federal law; as the Arizona Court discussed, it is covered by Section 1357(g). 567 U.S. at 408-09. In discussing that statute, the Arizona Court nowhere suggested that local officials may detain individuals suspected of immigration violations on the same grounds that federal officials may do so. The Court made the opposite point: that local officials may not enforce federal immigration laws, save in the carefully delineated circumstances set forth by statute, in which local officers may be in effect deputized to carry out certain federal functions pursuant to a formal written agreement, training and supervision. Id. at 410 (no “coherent understanding” of Section 1357(g) would permit “the unilateral decision of state officers to arrest an alien for being removable absent any . . . instruction from the Federal Government”). Section 1357(g) does not provide that an officer working outside the Section 287(g) program has the same authority to detain suspected individuals that federal officials have, or that such detention somehow falls outside of ordinary Fourth Amendment protections. SB 4 does not “codify” anything in Arizona or Section 1357. It goes well beyond existing law in allowing local officials to enforce immigration law unilaterally and to hold individuals in the absence of criminal probable cause.10
Finally, both the State and the US invite the Court to dismiss plaintiffs’ Fourth
enforcement training” and are expressly listed in the statute. 8 C.F.R. § 287.5. The Immigration and Nationality Act similarly lists the limited circumstances in which “[s]tate and local law enforcement officials are authorized to arrest and detain an individual” – and tellingly, the list contains no reference to administrative warrants. 8 U.S.C. § 1252c. 10 To the extent that the State seeks to analogize SB 4 to Section 2(B), the statute that survived preemption in Arizona, that analogy is as defective in the Fourth Amendment as in the preemption context. Section 2(B) required local officials only to check an individual’s status through ICE’s database during or after a lawful detention in which they had “reasonable suspicion,” and only to make a “reasonable attempt” in doing so. 567 U.S. at 411. The statute also required implementation “in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” Id. SB 4 contains no such constitutional safeguards. It requires that persons be held regardless of whether the circumstances are reasonable, and irrespective of their civil rights.
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Amendment challenge because it is a purportedly premature facial attack on SB 4. State Br. at 57; US Br. at 30. But “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015). The State quotes the Patel Court’s observation that the standard governing facial challenges is the “most exacting” it applies, but ignores the subsequent statement that in light of this standard, plaintiffs need only demonstrate the unconstitutionality of a law with respect to “those whose conduct it affects . . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 2451 (internal citations omitted). The Court illustrated this principle by reference to Casey, in which it struck down a law requiring women to notify their husbands before obtaining abortions, and rejected the argument that the challenge was improper because most women would voluntarily do so anyway. Id. (discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992)). That example shows why a facial challenge is warranted here. While the record demonstrates that local officials often comply voluntarily with detainer requests even absent SB 4, the law would reach those cases in which officers would not otherwise comply. It is this application that the Court must focus on under Patel, and it is this application that violates the Fourth Amendment.11 IV. SB 4 Violates The Equal Protection Clause Of The Fourteenth Amendment.
As the San Antonio Plaintiffs discussed in their opening brief, SB 4 denies Latinos equal protection because it prevents the implementation of anti-discrimination policies needed to prevent racial profiling in the enforcement of immigration laws. Substantial evidence shows that local officials across Texas have adopted policies to prevent impermissible racial profiling by limiting local immigration enforcement activity, and that these policies are absolutely necessary to preserve constitutional protections.12 Both the case law and official government reports
11 The State’s argument that plaintiffs must establish that SB 4 is unconstitutional under every conceivable circumstance was expressly rejected by Patel; the Court explained that this approach “would preclude facial relief in every Fourth Amendment challenge to a statute . . . .” Id. at 2451. 12 E.g., McManus Dec. ¶¶ 6-7, 9-10; Hrg. Tr. at 8, 11-12, 65-66; Harmon Dec. ¶¶ 6-8.
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confirm this.13 There is also no question but that SB 4 will force local entities to abandon these policies. E.g., McManus Dec. ¶¶ 5-7, 21-22. Tellingly, the State barely attempts to refute this evidence, instead advancing two counterfactual notions – that local anti-discrimination policies are unnecessary in light of state law, and that these policies will survive SB 4. State Br. at 63. The State does not explain how either of these things – let alone both – could be true.14
State laws that preempt local jurisdictions from adopting or implementing antidiscrimination policies are unconstitutional. Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1633 (2014); Romer v. Evans, 517 U.S. 620 (1996); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Reitman v. Mulkey, 387 U.S. 369 (1967). The State contends that this line of cases is inapposite because SB 4 does not explicitly refer to race or other impermissible classifications. But this was no less true in the cases the State seeks to distinguish. The amendment at issue in Reitman blocked housing laws aimed at preventing racial discrimination, and was found to violate equal protection despite the fact that there was no explicit mention of race. 387 U.S. at 375-79. The state law at issue in Seattle blocked local busing plans intended to ameliorate racial discrimination, but also made no mention of race. And Romer did not involve a suspect class at all, let alone statutory language referring to such a class. 517 U.S. at 632.15 The absence of language specifically targeting race in SB 4 thus does
13 Melendres v. Arpaio, 989 F. Supp. 2d 822, 903-04 (D. Ariz. 2013); Dep’t of Homeland Sec., Office of the Inspector Gen., The Performance of 287(g) Agreements, OIG-10-63 at 25-27 (2010); Gustavo Valdes & Thom Patterson, Feds Accuse North Carolina Sheriff’s Office of Racial Profiling, CNN (Sept. 20, 2012) at http://www.cnn.com/2012/09/20/justice/northcarolina-justice-immigration. 14 The State points to statements made during the Senate debate on SB 4 to the effect that Latinos are not disproportionately subjected to traffic stops. Id. at 67-68. Even if that were relevant, it shows nothing about the discriminatory impact SB 4 will have. Nor does it negate the evidence presented by plaintiffs establishing the justification for existing policies limiting local enforcement of immigration laws. 15 The State also relies on cites Washington v. Davis, 426 U.S. 229 (1976), which it claims stands for the proposition that “disparate racial impact is not a constitutional violation.” State Br. at 66. But the challenged state action in that case – an employment test that white applicants passed in disproportionate numbers – bears no relation to SB 4. The employment test placed no burdens on local anti-discrimination policies; nor was there an allegation of discriminatory intent, as it was “undisputed that the [employer] had systematically and affirmatively sought to enroll black officers . . . .” Id. at 235. SB 4 falls squarely within the political process line of cases because it
18

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 26 of 29
not immunize it from an equal protection challenge. What is significant for equal protection purposes is that SB 4 was designed to – and will – lead to the revocation of policies intended to protect Latinos and non-citizens from discrimination.
SB 4 also fails under Arlington Heights, which sets forth a multi-factor test to determine whether legislation was passed with discriminatory intent. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977). Substantial evidence on each of the relevant factors shows discriminatory intent here.16 First, SB 4 will undeniably “bear[ ] more heavily on one race than another,” disproportionately affecting Latinos who will be targeted for immigration enforcement regardless of their actual immigration status.17 Second, Texas has a long history of purposeful discrimination against Latinos.18 Third, the legislative history is rife with expressions of discriminatory intent, including scapegoating immigrants as criminals, targeting protestors as illegal immigrants, and threatening violence against people based on race.19 Fourth, there were significant deviations from normal process in the enactment of SB 4, including the designation of the bill as an emergency item for the purpose of “allowing lawmakers to vote on it faster and lessen the chance of resistance” – a particularly significant factor given widespread opposition to the bill.20 Indeed, several legislators observed that their votes against amendments exempting children were “bad votes” that they wished they “didn’t have to” make. Bernal Dec. ¶ 13. Other
undermines existing local anti-discrimination policies and inhibits the functioning of local political processes. Washington does not. 16 A complete description of the factors appears on page 38 of the San Antonio Plaintiffs’ prehearing brief. We refer to the factors in shorthand fashion here. 17 Bernal Dec. ¶ 3, Saldaña Dec. ¶ 5, McManus Dec. ¶ 6; Valdez-Cox Dec. ¶ 10; Blanco Decl. ¶¶ 15-16. 18 See, e.g., Perez v. Abbott, – F. Supp. 3d – , 2017 WL 1450121 (W.D. Tex. Apr. 20, 2017); Perez v. Abbott, – F. Supp. 3d –, 2017 WL 1787454 (W.D. Tex. May 2, 2017); Veasey v. Abbott, – F. Supp. 3d – , 2017 WL 1315593 (S.D. Tex. Apr. 10, 2017); LULAC v. Perry, 548 U.S. 399, 439 (2006); Hernandez v. Texas, 347 U.S. 475 (1954). 19 Blanco Dec. ¶¶ 3, 5, 7, 14, 17; Bernal Dec. ¶¶ 18-19, 23-24; Moody Dec. ¶¶ 8, 10, 12; Romero Dec. ¶ 4; Moreno Dec.; Ex. 1-B; Ex. 1-G; Ex. 1-H; Ex 1-J, Ex. 1-K. 20 See, e.g., Ex. 1-O & Ex. 1-D (noting that on February 2, 2017, over 1000 registered against the bill and only 21 people registered in favor of it) and Ex. 1-F (noting that on March 15, 2017, over 465 people gathered to testify against the bill and only 11 registered in support).
19

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 27 of 29
legislators equated non-citizens with “dangerous criminals,” or described immigrants as “those who commit terrible crimes.” Supra n.19.
None of this is remedied by the fact that racial profiling is nominally prohibited by Texas law or by the boilerplate language in SB 4 prohibiting discrimination. That fig-leaf language, which carries no enforcement mechanism, cannot change the fact that SB 4 prohibits implementation by local authorities of the very policies necessary to prevent profiling and discrimination in the enforcement of immigration laws.
The State disputes the San Antonio Plaintiffs’ showing on the Arlington Heights factors, compiling a 15-page defense of the procedures that led to SB 4’s enactment. But Arlington Heights “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 429 U.S. at 266. Under this holistic analysis, the State’s effort to paper over a history of discrimination by dismissing all examples as either too “distant” or still “pending” can have little impact. State Br. at 75. SB 4 was enacted against the background of widely acclaimed local efforts to combat racial discrimination in local immigration policies. E.g., McManus Decl. ¶¶ 15-16; cf. Reitman, 387 U.S. at 374. In targeting these policies, SB 4 removes protection from racial minorities, meanwhile threatening the officials who promulgate or enforce the policies with removal from office. While the State plucks statements from the legislative session to support its benign view of these events, the overwhelming evidence – from the Governor’s comments to the racially hostile legislative atmosphere to statements about “bad votes” – exposes discriminatory intent under Arlington Heights.
CONCLUSION For the reasons set forth above, SB 4 is unconstitutional under the Supremacy Clause and the First, Fourth and Fourteenth Amendments. Additional constitutional and statutory defects are described in our June 19, 2017 memorandum. Based on the these briefs and supporting declarations and on the evidence and arguments presented at the June 26, 2017 hearing, the San Antonio Plaintiffs request that the Court enjoin the State from enforcing SB 4 in its entirety.
20

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 28 of 29

Dated: July 10, 2017

Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By /s/ Nina Perales Thomas A. Saenz (CA Bar No. 159430 )* Nina Perales (TX Bar No. 24005046) Marisa Bono (TX Bar No. 24052874) Celina Moreno (TX Bar No. 24074754) Jack Salmon (TX Bar No. 24068914) Andrea Senteno (NY Bar No. 5285341)* Tanya G. Pellegrini (CA Bar No. 285186)* 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 *By Pro Hac Vice Admission
Attorneys for Plaintiffs CITY OF SAN ANTONIO, REY A. SALDAÑA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO AND WORKERS DEFENSE PROJECT
CITY OF SAN ANTONIO Deborah Lynne Klein Deputy City Attorney, Litigation SBN:11556750 Office of the City Attorney Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205 (210) 207-8940/(210)207-4357
SIDLEY AUSTIN LLP Yolanda C. Garcia (TX Bar No. 24012457)* Cory D. Szczepanik (TX Bar No. 24094973)* 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 Phone: (214) 981-3300 Facsimile: (214) 981-3400 ygarcia@sidley.com cszczepanik@sidley.com

21

Case 5:17-cv-00404-OLG Document 151 Filed 07/10/17 Page 29 of 29 Jose F. Sanchez (CA Bar No. 161362)* 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Phone: (213) 896-6000 Facsimile: (213) 896-6600 jose.sanchez@sidley.com *By Pro Hac Vice Admission Robin E. Wechkin (WA Bar No. 24746)** 701 5th Avenue, Suite 4200 Seattle, WA 98104 Phone: (415) 439-1799 Facsimile: (415) 772-7400 rwechkin@sidley.com **Pro Hac Vice Admission Pending Attorneys for Plaintiffs CITY OF SAN ANTONIO and REY SALDAÑA
CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July, 2017, I served a copy of the foregoing document on all counsel registered to receive NEFs through this Court’s CM/ECF system. All attorneys who are not registered to receive NEFs have been served via email.
/s/ Robin E. Wechkin Robin E. Wechkin
22

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 1 of 13
EXHIBIT A

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 2 of 13

1

1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

2

SAN ANTONIO DIVISION

3 CITY OF EL CENIZO, TEXAS, ET AL,)

Plaintiffs,

)

4

)

CITY OF AUSTIN, ET AL,

) No. 5:17-CV-404-OLG

5

Plaintiff-Intervenors,

) Consolidated Lead Case

vs.

)

6

) San Antonio, Texas

STATE OF TEXAS, ET AL,

) June 26, 2017

7

Defendants.

)

--------------------------------

8

TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING

9

BEFORE THE HONORABLE ORLANDO L. GARCIA

UNITED STATES DISTRICT JUDGE

10

A P P E A R A N C E S:

11

FOR THE CITY OF EL CENIZO, TEXAS, ET AL:

12

Law Office of Max Renea Hicks

13 Max Renea Hicks, Esquire

P.O. Box 303187

14 Austin, Texas 78703

15 Law Offices of Luis Roberto Vera & Associates Luis Roberto Vera, Jr., Esquire
16 111 Soledad, Suite 1325 San Antonio, Texas 78205
17 American Civil Liberties Union
18 Lee Gelernt, Esquire 125 Broad Street, 18th Floor
19 New York, New York 10004

20 American Civil Liberties Union of Texas Edgar Saldivar, Esquire
21 P.O. Box 8306 Houston, Texas 77288
22 FOR EL PASO COUNTY, ET AL:
23 Jose Garza, Esquire
24 Attorney at Law 1111 North Main Street
25 San Antonio, Texas 78212

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 3 of 13

2

1 Texas Civil Rights Project Efren Carlos Olivares, Esquire
2 1017 West Hackberry Alamo, Texas 78516
3 Texas Civil Rights Project
4 Mimi M.D. Marziani, Esquire 1405 Montopolis Drive
5 Austin, Texas 78741
6 FOR THE CITY OF SAN ANTONIO, ET AL:
7 Mexican American Legal Defense & Educational Fund Nina Perales, Esquire
8 John Paul "Jack" Salmon, Esquire Celina Ysela Moreno, Esquire
9 110 Broadway Street, Suite 300 San Antonio, Texas 78205
10 Office of the City Attorney, Litigation Division
11 Deborah Lynne Klein Frost Bank Tower
12 100 West Houston Street, 18th Floor San Antonio, Texas 78205-3966
13 Sidley Austin, LLP
14 Yolanda Cornejo Garcia, Esquire Cory D. Szczepanik, Esquire
15 2021 McKinney Avenue, Suite 2000 Dallas, Texas 75201
16 Sidley Austin, LLP
17 Jose F. Sanchez, Esquire 555 West Fifth Street
18 Los Angeles, California 90013
19 FOR TRAVIS COUNTY, ET AL:
20 Travis County Attorney's Office David A. Escamilla, Esquire
21 Sherine E. Thomas, Esquire Sharon Talley, Esquire
22 Tony Nelson, Esquire 314 West 11th Street
23 Granger Building, Suite 500 P.O. Box 1748
24 Austin, Texas 78767
25
Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 4 of 13

3

1 FOR THE CITY OF AUSTIN:
2 City of Austin Law Department Michael Siegel, Esquire
3 301 West 2nd Street Austin, Texas 78701
4 City of Austin
5 Christopher J. Coppola, Esquire P.O. Box 1546
6 Austin, Texas78767
7 FOR THE TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COMMISSIONERS:
8 Law Offices of Rolando L. Rios
9 Rolando L. Rios, Esquire 115 East Travis Street, Suite 1645
10 San Antonio, Texas 78205
11 FOR THE CITY OF DALLAS:
12 City Attorney's Office Charles S. Estee, Esquire
13 1500 Marilla Street, 7BN Dallas, Texas 75201
14 FOR THE CITY OF HOUSTON:
15 City of Houston Legal Department
16 Collyn Ann Peddie, Esquire Patricia L. Casey, Esquire
17 Connica Lemond, Esquire 900 Bagby, 4th Floor
18 Houston, Texas 77002
19 James Edward Maloney, PLLC James Edward Maloney, Esquire
20 The Esperson Buildings 815 Walker Street, Suite 1150
21 Houston, Texas 77002
22
23
24
25
Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 5 of 13

4

1 FOR THE STATE OF TEXAS, ET AL:
2 Attorney General's Office Darren L. McCarty, Esquire
3 Brantley Starr, Esquire William T. Deane, Esquire
4 Eric A. White, Esquire P.O. Box 12548
5 Austin, Texas 78711-2548
6 FOR THE UNITED STATES OF AMERICA:
7 United States Attorney's Office Gary Anderson, Esquire
8 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216
9 U.S. Department of Justice
10 Civil Division Erez Reuveni, Esquire
11 Liberty Square Building 450 5th Street, NW
12 Washington, D.C. 20530
13 COURT REPORTER:
14 Karl H. Myers, CSR, RMR, CRR Official Court Reporter
15 655 E. Cesar Chavez Blvd., Rm. 315 San Antonio, Texas 78206
16 Telephone: (210) 244-5037 Email: karlcsr@yahoo.com
17 Proceedings reported by stenotype, transcript produced by
18 computer-aided transcription.
19
20
21
22
23
24
25
Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 6 of 13

8

1

THE COURT: -- for the circumstances you have raised

2 in your pleading. Is she here now?

3

MR. GARZA: She is, Your Honor.

4

THE COURT: Okay. Let's bring her up now.

5

MR. GARZA: Yes, Your Honor.

6

COURTROOM DEPUTY: Please raise your right hand.

7

(Oath administered to the witness.)

8

COURTROOM DEPUTY: Thank you. Have a seat.

9

THE COURT: And, Mr. Garza, you will have a time not

10 to exceed 15 minutes.

11

MR. GARZA: Thank you, Your Honor.

12

THE COURT: Let's go.

13

*-*-*-*-*-*-*-*

14

DIRECT EXAMINATION

15 BY MR. GARZA:

16 Q. Ms. Bernal, would you -- where do you reside?

17 A. El Paso County.

18 Q. And how long have you lived in El Paso County?

19 A. I was born and raised there. I lived there most of my 56

20 years.

21 Q. And you went to school in El Paso County?

22 A. Yes, I did.

23 Q. And where did you attend college?

24 A. Undergraduate, University of Texas.

25 Q. And law school?

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 7 of 13 11

1 officers had pulled over a bus and were asking the immigration

2 status of people that were riding on the bus. We were sued in

3 federal court.

4

We entered into a settlement agreement. As a part

5 of the settlement agreement, El Paso County agreed that it

6 would not enforce civil immigration law, so as part of our

7 settlement agreement, we also agreed to adopt a written

8 policy. So the El Paso County Sheriff's Department has a

9 written policy to that effect and the County Attorney's Office

10 has a similar policy which prohibits the enforcement of

11 immigration law. I employ five peace officers, all of whom

12 are bound by this policy.

13

THE COURT: And let me ask you, ma'am, what is the

14 rationale for that policy? In other words, you are telling me

15 that the sheriff or sheriff deputies cannot ask immigration

16 status questions?

17

THE WITNESS: (Witness nods head.)

18

THE COURT: Go ahead.

19

THE WITNESS: Correct. El Paso County Sheriff

20 Richard Wiles, myself, as a community strongly believe in both

21 community policing and community prosecution. I do not

22 believe, El Paso County does not believe that it can

23 effectively protect the citizens of El Paso if local law

24 enforcement is involved in enforcing immigration law.

25

For example, what we see is that the immigrant

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 8 of 13 12

1 community, the undocumented community, in particular, is

2 reluctant to come forward as a witness, as a victim, to report

3 crime if their interaction with local law enforcement will

4 subject them to separation from their family or deportation.

5

So what happens is it creates, frankly, a less safe

6 community. It empowers those people that are committing

7 crimes against immigrants and it makes El Paso a less safe

8 community, and that was the basis for entering into both the

9 settlement agreement and the adoption of the written policies.

10

THE COURT: And is that interest greater than

11 determining the immigrant status of a person?

12

THE WITNESS: I think it is greater for El Paso

13 County, for myself and for those people who are not charged

14 with enforcing immigration law. For the federal government,

15 obviously, they are interested and enforcing federal

16 immigration law is a greater interest perhaps to them than our

17 local concerns. Our local concerns, however, are front-line

18 community safety. That is not the same concern that the

19 federal government shares, I believe.

20

THE COURT: All right. Go ahead, Mr. Garza.

21 BY MR. GARZA:

22 Q. As the policies are currently written for both the county

23 attorney and the sheriff, do you view those as inconsistent

24 with the requirements of SB 4?

25 A. I do. I do not believe that, as an elected official, that

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 9 of 13 65

1 requiring the county to comply 100 percent of the time with

2 detainer requests. And even the new form, which is not the

3 subject of the Trujillo case, but is the new form that came

4 out -- that started to be used in April, does not provide

5 probable cause that a criminal offense has been committed.

6

It is roughly the same check boxes that communicate

7 that the federal government believes that an individual is

8 subject to removal proceedings. It simply does not satisfy

9 the requirements of the Fourth Amendment as recognized by this

10 Court and Trujillo.

11

And Bexar County officials, the jailer, the sheriff

12 will face up to a one year in jail penalty under SB 4 for not

13 complying with what he understands to be his obligations under

14 the Fourth Amendment. So that is one type of conflict

15 preemption.

16

Another one that we would like to point out, Mr.

17 Gelernt talked about what happens when you place jail

18 officials in the shoes of immigration agents, as SB 4 does by

19 requiring them to review immigration documents produced by the

20 detainee to make a required determination under SB 4, whether

21 to release this person anyway, even if they are subject to a

22 detainer.

23

And one of those things is a driver's license and

24 then it is just sort of a wide open category of whatever the

25 person is going to try to interpret. And, yes, Farmers Branch

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 10 of 13 66

1 in Arizona v. U.S. says that local officials cannot perform

2 these functions of reviewing immigration documents and making

3 immigration determinations, because they don't necessarily

4 understand them.

5

I would like to talk for a moment about the flip

6 side of the problem. Your Honor is familiar with the

7 situation where somebody might come in to a jail, a legal

8 permanent resident with a green card, with a driver's license,

9 and ICE places a detainer because ICE has concluded that the

10 person is subject to removal proceedings, despite the fact

11 that they have all of this paperwork. Under SB 4, the jailer

12 is required to release the individual.

13

THE COURT: Because he has a license?

14

MS. PERALES: Because he has a driver's license and

15 a green card. Now, ICE may have determined that he has

16 committed an offense that renders him removable and intends to

17 place him into proceedings, which is why ICE has sent the

18 detainer over, but SB 4 says: No, this person must be

19 released.

20

So SB 4 is conflict preempted running in two

21 directions, Your Honor. It forces local jailers to hang on to

22 people when they shouldn't, but it also forces local jailers

23 to release people when the federal government would otherwise

24 want to have them kept in custody for that 48 hours, and that

25 thwarts federal objectives and creates a conflict preemption

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 11 of 13 140

1 Arizona held.

2

Arizona simply held that state authority to do so

3 and, as I understand it, Texas has indicated that its state

4 and local officers have authority to make civil immigration

5 arrests, at least in response to the federal government's

6 request that they do so.

7

What Arizona does is say inherent state authority to

8 participate, to cooperate is preempted so long as it is done

9 unilaterally but where -- and I am quoting from the Supreme

10 Court, or at least I am paraphrasing -- it is done at the

11 request, direction or authorization of the federal government,

12 or in the Supreme Court's words, the request, invitation,

13 authorization or other direction or instruction; it is

14 perfectly legitimate.

15

So the state authority to act in that area, once the

16 request is proffered, which it has been here, is not

17 preempted. So, really, Arizona controls both the inquiries.

18 I will talk for a minute about information sharing and then

19 get to the detainer issue, because that has separate Fourth

20 Amendment issues.

21

Arizona, as counsel for Texas indicated, SB 1070 had

22 a provision with penalties directed at state officers, as

23 opposed to aliens. Really, the key issue in Arizona is, are

24 the states criminalizing the acts of alienage? Are they

25 augmenting what the federal government has already done?

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 12 of 13 148

1 instance of a detainer they have honored, where there hasn't

2 been evidence of a crime. They don't say that. They don't

3 mean to say that. I don't read them to be saying that, but if

4 that is what they are saying, well --

5

One other point on this race issue that came up,

6 just as a point of clarity. Again, I don't understand SB 4 to

7 be authorizing rogue state or local officers to wake up in the

8 morning and say, "I am going to raid this house today."

9

I mean, if they did say that, that would be

10 preempted, because that is not at the direction or request of

11 the federal government. That being said, if the federal

12 government reaches out and says, "Here is a detainer for this

13 specific individual; we would like to know when he is

14 released; we would like to know -- we would like you to hold

15 him for us temporarily," when they respond to that, that is

16 absolutely permissible.

17

Just one other point on the Fourth Amendment, if I

18 may. So as Mr. Starr mentioned, the Abel case from 1960, I

19 think really just sort of resolves the issue. There is really

20 not much more to say about whether administrative warrants,

21 the system of administrative warrants that Congress set up is

22 lawful or unlawful.

23

It is lawful. It has, quote, the sanction of time.

24 Congress, going back to 1790s, have statutes allowing for

25 administrative arrests of aliens.

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

Case 5:17-cv-00404-OLG Document 151-1 Filed 07/10/17 Page 13 of 13 274

1

*-*-*-*-*-*-*-*

2 UNITED STATES DISTRICT COURT )

3 WESTERN DISTRICT OF TEXAS )

4

I certify that the foregoing is a correct transcript

5 from the record of proceedings in the above-entitled matter.

6 I further certify that the transcript fees and format comply

7 with those prescribed by the Court and the Judicial Conference

8 of the United States.

9 Date signed: July 1, 2017.

10

11

/s/ Karl H. Myers

_________________________________

12

KARL H. MYERS, CSR, RMR, CRR

Official Court Reporter

13

655 East Durango Blvd., Suite 315

San Antonio, Texas 78206

14

(210) 244-5037

15

16

17

18

19

20

21

22

23

24

25

Karl H. Myers, CSR, RMR, CRR - (210) 244-5037

 
 Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, §

et al.,

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF HOUSTON,

§

TEXAS,

§

Intervenor

§

§

v.

§

§

THE STATE OF TEXAS, et. al. §

Defendants.

§

C.A. No. 5:17-CV-00404-OLG (Lead Case)
C.A. No. 5:17-CV-00459-OLG (Consolidated Case)
C.A. No. 5:17-CV-00489-OLG (Consolidated Case)

CITY OF HOUSTON’S MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTIONS AND/OR APPLICATIONS FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 2 of 54

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................................................................................. ii

TABLE OF AUTHORITIES ............................................................................ iv

INTRODUCTION ........................................................................................... 1

STANDARDS GOVERNING PRELIMINARY INJUNCTIONS........................ 4

SENATE BILL 4..................................................................................................... 5

ARGUMENT .......................................................................................................... 8

I. SB4 IS PREEMPTED BY FEDERAL LAW ................................................ 8

A. Federal Preemption Principles Governing this Case ............................ 8

B. SB4 Directly and/or Impliedly Conflicts with § 1357(g)’s Scheme to Ensure That Those Functioning as Immigration Officers are Trained, Certified, andCarefully-Supervisedby theU.S. Attorney General ............................................................................................ 12

1. Subsection 1357(g)’s Local Enforcement Scheme.................... 12

2. SB4 Conflicts with and Impermissibly Skews the Scheme of Federal Immigration Enforcement Set Forth in § 1357(g) ........ 21

C. Texas’ and

the

Government’s Preemption

Responses

are

Misdirected, Baseless, or Both .......................................................... 24

1. No Deference is Due the Government’s Views on SB4’s Preemptive Effect or Its Statement of Interest.......................... 24

2. SB4’s Penalties and Mandates Are Not Merely a “Matter of Internal State Management”................................................... 25

3. The Government’s “Cooperation” Arguments Ignore the Operative Provisions of § 1357(g) and its Own Guidance ........ 29

4. The Government’s Argument that Federal Law is Not in Conflict with SB4 Because It Does Not Prohibit Inquiring About Immigration Status is Misdirected................................ 33

II. SB4 VIOLATES THE HOME-RULE PROVISIONS OF TEXAS CONSTITUTION ART. XI, § 5 ............................................................. 35

ii

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 3 of 54 III. SB4 VIOLATES THE FIRST AMENDMENT AND TEXAS
CONSTITUTION ART. I, § 8 .................................................................... 37 IV. SB4 VIOLATES THE FOURTH AMENDMENT AND THE TEXAS
CONSTITUTION, ART. I, § 9 ................................................................... 38 V. SB4 VIOLATES THE FOURTEENTH AMENDMENT EQUAL
PROTECTION AND DUE PROCESS CLAUSES AND TEXAS CONSTITUTION ARTS. I, §§ 3 & 9 ...................................................... 38 PRAYER FOR RELIEF ........................................................................................ 39 CERTIFICATE OF SERVICE ........................................................................ 41
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TABLE OF AUTHORITIES
Page(s)
Cases Altria Grp., Inc. v. Good,
555 U.S.70 (2008)............................................................................................. 9 Anderson v. Edwards,
514 U.S. 143 (1995).......................................................................................... 11 Buckman v. Plaintiffs’ Legal Comm.,
531 U.S. 341 (2001) ......................................................................... 10, 11, 22, 23 Chapman v. Hous. Welfare Rights Org.,
441 U.S. 600 (1979) ......................................................................................... 28 City of Hugo v. Nichols (Two Cases),
656 F.3d 1251 (10th Cir. 2011) ......................................................................... 28 City of Richardson v. Responsible Dog Owners,
794 S.W.2d 17 (Tex. 1990)............................................................................... 36 Columbus v. Ours Garage & Wrecker Service, Inc.,
536 U.S. 424 (2002)......................................................................................... 26 Commissions Imp. Exp. S.A. v. Republic of the Congo,
757 F.3d 321 (D.C. Cir. 2014 ........................................................................... 33 Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000)......................................................................................... 10 Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas,
852 S.W.2d 489 (Tex. 1993)............................................................................. 35 De Canas v. Bica,
424 U.S. 351 (1976) ......................................................................................... 12 Donelon v. La. Div. of Admin. Law ex rel. Wise,
522 F.3d 564 (5th Cir. 2008) ............................................................................ 27 Ex parte Young,
209 U.S .123 (1908) ......................................................................................... 28
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 5 of 54
Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ........................................................................................... 9
Ga. Latino All. for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012) ......................................................................... 11
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .............................................................................15
Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) ...................................................................................... 9, 25
Green v. Mansour, 474 U.S. 64 (1985) ........................................................................................... 28
Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ........................................................................................... 9
Hines v. Davidowitz, 312 U.S. 52 (1941) ............................................................................................. 9
Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003) ............................................................................ 11
Jones v. Rath Packing Co., 430 U.S. 519 (1977) ........................................................................................... 9
Koog v. United States, 79 F.3d 452 (5th Cir. 1996) ......................................................................... 26, 33
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ........................................................................................... 8
Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017)...................................................... 15
Monk v. Wyeth Pharm., Inc., SA-16-CV-1273-XR, 2017 WL 2063008 (W.D. Tex. May11, 2017).................. 11
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971) ......................................................................................... 32
Perdue v. Wyeth Pharm., Inc., 209 F. Supp. 3d 847 (E.D.N.C. 2016) ......................................................... 11, 22
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PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ........................................................................................ 24
Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979), cert. denied 444 U.S. 827 (1979) ....................... 27
Savage v. Jones, 225 U.S. 501 (1912) ......................................................................................... 10
Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180-94 (1978) ..................................................................................... 9
Speaks v. Kruse, 445 F.3d 396 (5th Cir. 2006) ............................................................................ 4
United States v. Arizona, 567 U.S. 387 (2012) ................................................................................... passim
United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), aff’d in part, rev’d in part, 567 U.S. 387 (2012) ....... 13
United States v. Salerno, 481 U.S. 739 (1987) ......................................................................................... 11
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)......................................................................................... 11
Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955) ........................................................................................... 9
Williams v. Mayor, 289 U.S. 36 (1933) ........................................................................................... 27
Wis. Public Intervenor v. Mortier, 501 U.S. 597 (1991) .................................................................................... 25, 26
Wyeth v. Levine, 555 U.S. 555 (2009) .............................................................................8, 9, 24, 25
Constitution and Statutes Texas Const. art. XI,§ 5 ........................................................................................ 35 8 U.S.C. § 1357 .............................................................................................. passim
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Tex. Code Crim. P. § 2.13 ....................................................................................... 7 Tex. Gov’t Code § 311.021 .....................................................................................15 Tex. Gov’t Code § 311.023 .....................................................................................15 Tex. Gov’t Code § 402.0241 ................................................................................... 7 Tex. Gov’t Code § 752.051 ...................................................................................... 5 Tex. Gov’t Code § 752.053 ............................................................................ 5, 6, 39 Tex. Gov’t Code § 752.055 ................................................................................ 6, 39 Tex. Gov’t Code § 752.056 ..................................................................................... 6 Tex. Gov’t Code § 752.0565.................................................................................... 6 Tex. Penal Code § 12.21.......................................................................................... 7
Other Authorities 8 C.F.R. § 287.7.....................................................................................................15 Fed. R. Evid. 201............................................................................................... 5, 16 Amasa M. Eaton, The Right to Local Self-Government, 13 Harv. L. Rev. 441
(Feb. 1900)......................................................................................................28 Annie Decker, Preemption Conflation: Dividing the Local from the State in
Congressional Decision Making, 30 Yale L. & Policy Rev. 321 (Spring 2012).......28 Jake Sullivan, Comment, The Tenth Amendment and Local Government, 112 Yale
L.J. 1935 (May 2003) ...................................................................................... 28 Richard Briffault, Our Localism: Part I―The Structure of Local Government Law,
90 Colum. L. Rev. 1 (1990).............................................................................. 28 U.S. Dep’t of Homeland Security, Guidance on State and Local Governments’
Assistance in Immigration Enforcement and Related Matters 7 (July 16, 2015) .... passim
City Charter Houston, Tex., City Charter, Art. II, § 2(a) ........................................................... 39
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 8 of 54 Houston, Tex., City Charter, Art. II, § 2(b)............................................................ 39 Houston, Tex., City Charter, Art. V, et seq................................................................ 39
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Plaintiff/Intervenor the CITY OF HOUSTON (“Houston”) files this its Memorandum in Support of the Motions and/or Applications for Preliminary Injunction of the cities of El Cenizo [Dkt. 24], El Paso [Dkts. 56 & 56-1], Austin [Dkt. 57], and San Antonio [Dkt. 77], pursuant to this court’s briefing order, dated June 30, 2017. In support thereof, Houston would show as follows:
INTRODUCTION Senate Bill 4’s (“SB4”) constitutionality and this court’s decision whether to grant a preliminary injunction turn, in large part, upon this court’s willingness to suspend reality, ignore or rewrite numerous provisions of the existing immigration laws, and embrace a cynical myth: that holding Texas peace officers and elected and appointed officials hostage to bankrupting fines and draconian penalties, including summary removal from office, does not make anything they are asked or allowed to do under SB4 mandatory. In fact, Defendants, the State of Texas (“Texas”) and United States (“the Government”), contend that SB4 does nothing more than require “cooperation” with federal immigration authorities. Paraphrasing “Cool Hand Luke,” it is as if, surveying the vast field of Texas police officers and chiefs, city council members, mayors, and city managers, jail administrators, and city, county, and district attorneys that SB4 would hold captive, the Governor announced: “what we’ve got here is a failure to cooperate.” Fortunately, this court does not have the luxury of pretending what is, isn’t. Although Houston intervened in these consolidated lawsuits too late to file its own application for preliminary injunction, this court has generously permitted Houston to join in those applications and motions filed by other plaintiffs and to file

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its own brief in support of those motions. To that end, Houston seeks to do three things: 1) to supplement the core arguments made by other plaintiffs in their applications and demonstrate why plaintiffs more than meet the standards required for a successful, pre-enforcement, facial challenge to the key provisions of SB4; 2) to address the misdirected and/or baseless arguments Texas and the Government have made but that other plaintiffs may not have not fully addressed; and 3) to adopt the First Amendment and Texas Constitution Art. I, § 8; Fourth Amendment and Texas Constitution, Art. I, § 9; and Fourteenth Amendment Equal Protection and Due Process Clauses and Texas Constitution Art. I, §§ 3 & 9 arguments made by several other cities in their applications/motions here.
To these ends, Houston argues first that the operative provisions of SB4 are conflict and/or impliedly preempted by federal law, specifically, by the carefullycrafted local immigration enforcement regime established by 8 U.S.C. § 1357. For example, under § 1357(a)(1), the routine inquiries into a detainee’s immigration status that SB4 requires are functions only federal immigration officers perform. Under § 1357(g), these functions may only be routinely performed by local police under contracts with the federal government that ensure federal training, certification, and ongoing federal supervision. SB4 requires none of those things. Subsection 1357(g)(5) grants to cities and to the U.S. Attorney General the power to specify in such contracts whether the enforcement activities that local governments will undertake will be mandatory or optional. SB4 gives Texas that authority to wield with asledge-hammer.
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By fundamentally changing the relationship between federal and local governments in immigration enforcement and the methods that may be used to ensure local compliance, SB4 directly and/or impliedly conflicts with 8 U.S.C. § 1357(g)’s detailed scheme to ensure that those who routinely function as immigration officers are trained, certified, and carefully-supervised by the U.S. Attorney General.
Nothing in Texas’ and the Government’s preemption responses changes this result. First, the U.S. Supreme Court has held that no deference is due the Government’s Statement of Interest or views on SB4’s preemptive effect it contains because its Statement starkly diverges from DHS’ prior pronouncements. Second, a review of SB4, federal immigration statutes, and federalism cases reveals that Defendants’ argument that SB4’s penalties and mandates are merely a “matter of internal state management” is without merit. Likewise, Defendants’ “cooperation” arguments ignore the operative provisions of § 1357(g) and DHS’ own Guidance for State and Local Governments. Third, Defendants’ argument that federal law is not in conflict with SB4 because it does not prohibit inquiring about immigration status is at odds with the plain language of both SB4 and the federal immigration laws.
In addition to its preemption, SB4 is also constitutionally infirm because it violates the home-rule provisions of the Texas Constitution Art. XI, § 5.
While it was abundantly clear at this court’s June 26 hearing that SB4 is a cruel andill-considered solutioninsearchof a problem, Houston seekstoconfirm onceand for all that is also facially unconstitutional. Because a careful analysis of SB4 and the
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immigration laws it purports to enforce reveals that it is, Houston asks that this court enter a preliminary injunction enjoining its enforcement, in whole or in part.
STANDARDS GOVERNING PRELIMINARY INJUNCTIONS To grant preliminary injunction, this court must find that plaintiffs have established: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that, if the injunction is denied, the threatened injury outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest.1 Because Houston entered the case too late to include exhibits to support requirements2-4,withoneexception,itwill relyonevidenceotherplaintiffsprovided indeclarations,livetestimony,andwrittenevidenceatthecourt’shearing onJune26. Houston would, however, call the court’s attention to the Declaration of Art Acevedo, Houston’s Police Chief, Dkt. 99-2, which it filed prior to the hearing along with its Motion to Intervene and proposed complaint, and that Plaintiffs jointly listed as Exhibit P-9 for that hearing.2 It is attached as Exh. A and described where relevant. It more than demonstrates that Houston, like other Texas cities, faces a substantial threat of irreparable injury if the injunction is not issued; that, if the injunction is denied, the threatened injury outweighs any harm that will result if the injunction is granted; and that the grant of an injunction will not disserve the public interest.
1 Speaks v. Kruse, 445 F.3d 396, 400 (5th Cir. 2006). 2 See Dkt. 123 [Exh. P- 9].
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Inthismemorandum, however, Houstonwillfocusonsatisfying thefirstprong of the preliminary injunction test: demonstrating a substantial likelihood of success on the merits.
SENATE BILL 43 SB4 improperly and unconstitutionally changes the existing obligations of municipalities under federal immigration law, transforming them from voluntary and cooperative to mandatory, and subjecting lawmakers and law enforcement officers alike to draconian penalties, not just for violations, but for merely speaking in opposition to the policies SB4 embodies. SB4’s Article 1 amends the Texas Government Code. New § 752.053 requires that“localentities,”which,amongotherthings,itdefinesascityandcounty governing bodies, officers, and their employees, sheriffs, and county, city, and district attorneys, are prohibited from “adopting, enforcing, or endorsing” a policy, which can include “an informal, unwritten policy,” that prohibits or “materially limits” the enforcement of “immigration laws,” as demonstrated by “pattern or practice.”4 SB4 then prohibits these local entities from adopting policies that prohibit or materially limit a police officer from inquiring into the immigration status of a person under lawful detention orunder arrest, id. at§752.053(b)(1); inquiring intothedetainee’splaceof birth, id. at § 752.053(b)(2); sending that information to United States Citizenship and
3 A copy of the enrolled version of Senate Bill 4 is attached as Exh. B for the Court’s convenience. The court is asked to take judicial notice of its provisions. See Fed. R. Evid. 201. 4 Tex. Gov’t Code §§ 752.051(5) (definitions); 752.053(a).
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Immigration Services (“USCIS”), Immigration Customs Enforcement (“ICE”), or any other federal agency, id. at § 752.053(b)(2(A); assisting or cooperating with a federal immigration officer, id. at § 752.053(b)(3); and/or allowing the federal government access to a jail to enforce federal immigration law. Id. at § 752.053(b)(4).
While §752.054 ostensibly prohibitsdiscrimination,itallows any citizentofile a complaint against any local entity alleging violations of 752.053. Id. at § 752.055(a). It then authorizes the Attorney General to seek equitable relief from such violations. Id. at § 752.055(b). Subsection 752.056, in turn, provides for civil penalties against local entities found by a court to have violated § 752.053. Each day is a separate violation. Id. at § 752.056(b). These escalating civil penalties include exorbitant fines of between $1,000.00 and $1,500.00 for the first day of a violation, and, thereafter, between $25,000 and $25,500 per day for every subsequent violation. Id. at § 752.056. Finally, § 752.0565 provides that elected or appointed officials may be removed from office if they violate § 752.053. Proof sufficient to remove an official need only be “a statement by the public officer.” Id. at § 752.0565(b).
Article 2 amends the Texas Code of Criminal Procedure. Art. 2.251(a) mandates that law enforcement agencies that have “custody” of a person subject to a detainerrequest“shallcomplywith, honorandfulfillany requestmadeinthedetainer request,” whether or not the officer or entity has made any determination that it was issued with probable cause or with any underlying criminal charges [other than immigration offenses] to justify continued detention. However, art 2.251(b) suspends
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that duty when the person in custody has provided proof of citizenship or lawful immigration status based on certain government-issued identification.
Article 3 further amends the Texas Government Code. It provides that the Attorney General “shall defend” a local entity sued for complying with an immigration detainer request but only if the Attorney General “determines that the cause of action arises out of a claim involving the local entity’s good-faith compliance with an immigration detainer request.” Tex. Gov’t Code § 402.0241(b). The subsection thus consigns the decision to provide a defense and reimbursement of any judgment to the discretion of the Texas Attorney General, adding an additional means by which Texas can coerce compliance by cities. Only if he or she opts to defend the city will Texas be responsible for any judgment or fees. Id. at § 402.0241(c). If the Attorney General turns the case down, however, or if the claim does not qualify for defense, a city is on its own.
Article5 amendstheLocal Government and PenalCodes to create anew crime. Under Tex. Penal Code § 39.07, as amended, a sheriff’s, police chief’s, constable’s, or jail administrator’s knowing failure to comply with an immigration detainer request is a Class A misdemeanor, which is punishable by up to a year in jail. See id. at § 12.21.
Article 6 amends the Code of Criminal Procedure. It provides that police officers may inquire into the nationality or immigration status of a crime victim or witness if the officer determines, among other things, that the inquiry is necessary to investigate the offense. Tex. Code Crim. P. § 2.13(d)(1).
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ARGUMENT I. SB4 IS PREEMPTED BY FEDERAL LAW5
SB4 violates the Supremacy Clause of the United States Constitution because it directly conflicts with multiple federal statutes, regulations promulgated by the Department of Homeland Security, and executive orders of the President.
Although Houston adopts the preemption arguments made and evidence submitted by the cities of El Cenizo and Austin in connection with their motions/applications for preliminary injunction, it will focus here on how SB4 directly and/or impliedly conflicts with federal law.
A. Federal Preemption Principles Governing this Case The authority of federal law to preempt and thus to supersede state law derives from the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2. In determining whether state law is preempted, courts “must be guided by two cornerstones of our pre-emption jurisprudence. First, ‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’”6 Second, “[i]n all pre-emption cases, and particularly in those in which Congress has ‘legislated ... in a field which the States have traditionally occupied’ ... we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’”7 Federal preemption jurisprudence thus permits three kinds of
5 The Application for Preliminary Injunction filed by the City of El Cenizo, et al., raises preemption arguments that encompass those Houston makes here. See Dkt. 24-1, at 13-19. 6 Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). 7 Wyeth, 555 U.S. at 565 (quoting Lohr, 518 U.S. at 485).
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preemption: express preemption, field preemption, and conflict preemption.8 Houston arguments here are directed only to conflict preemption.
Where, as here, conflict preemption has been asserted, federal law supersedes state law only to the extent the two conflict. This can occur in two ways: 1) where it is impossible for a private party to comply with both state and federal requirements;9 or 2) where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”10
Unlike express and field preemption, conflict preemption turns on the identification of an “actual conflict,” not on any express statement of preemptive intent.11 Instead, “Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose.”12 As the Court explained: “in each case, the pertinent inquiry is whether the two potentially conflicting statutes were ‘brought to bear on precisely the same conduct.’”13
8 See, e.g., Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985). Express preemption applieswhereCongress,throughastatute’sexpress language,declaresitsintent todisplacestatelaw. Id. Field preemption applies where “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Id. 9 See, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). 10 Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see Wyeth, 555 U.S. at 563-64. 11 Geier v. Am. Honda Motor Co., 529 U.S. 861, 884 (2000). 12 Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). 13 Sears,Roebuck &Co. v. San DiegoCty. Dist.CouncilofCarpenters, 436 U.S. 180, 193-94 (1978) (quoting Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 479 (1955); see also Wyeth, 555 U.S. at 583 (Thomas, J., concurring) (“where state and federal law ‘directly conflict,’ state law must give way”).
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By contrast, “frustration of purpose” or implied conflict preemption may exist even when there is no direct conflict. Preemptive intent, however, is drawn from the language of statute itself and its structure and purposes. As one court explained:
What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: ‘For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power.’14 There is also a variation on frustration of purpose/implied conflict preemption that was tailor-made for this case. It is based on the U.S. Supreme Court’s decision in Buckman v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). Buckman dealt with “fraud-onthe–FDA”claimsinvolving amedicaldevicemanufacturerallegedlyusingfraudulent representations to obtain U.S. Food and Drug Administration (“FDA”) approval for adevice. Theplaintiffsbroughtstate-lawclaimsagainsttheconsultantswhomadethe misrepresentations to FDA. Id. at 345-46. Recognizing that state-law claims for fraudon-the-FDA conflicted with federal law because they skew “a somewhat delicate balance of statutory objectives” advanced by FDA, the Court found that the plaintiffs’ state-law claims were preempted. Id. at 348. The Court explained that state-law claims
14 Crosbyv.Nat’lForeignTradeCouncil,530U.S.363, 373(2000) (quotingSavagev. Jones,225U.S.501, 533 (1912)) (emphasis supplied).
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that exist “solely by virtue” of federal regulatory requirements are preempted.15
Buckman’s preemptive effect has been extended far beyond its original context.16
Preemption, as asserted by Houston and other plaintiffs here, is a facial
challenge,17 which ordinarily requires little or no factual evaluation, and is, therefore,
an appropriate ground for seeking an injunction in this pre-enforcement stage. Unlike
the preemption challenge to § 2(B) in U.S. v. Arizona, Houston’s preemption challenge
is not to the likely scope of detention, an inquiry the Court found premature.18 Instead,
Houston’s challenge more closely resembles the Government’s preemption challenge
to §§ 5(C) and 6 in Arizona, both of which the Court found impliedly conflict-
preempted. This inquiry involved a careful examination of the plain language and
structure and purposes of the statutes to determine if a preemptive conflict, direct or
implied, existed.19 That is what Houston has attempted to do for the court here.
15 Id. at 352-53; see also Perdue v. Wyeth Pharm., Inc., 209 F. Supp. 3d 847, 851 (E.D.N.C. 2016) (holding that a state law claim is preempted under Buckman if “‘the existence of these federal enactments is a critical element in [plaintiff's] case,’ and [if] a plaintiff’s claims ‘exist solely by virtue of the FDCA ... requirements.’” Id. (quoting Buckman, 531 U.S. at 352)). 16 See, e.g., Perdue, 209 F. Supp. 3d at 851-52; Monk v. Wyeth Pharm., Inc., SA-16-CV-1273-XR, 2017 WL 2063008, at *4 (W.D. Tex. May 11, 2017). 17 See United States v. Salerno, 481 U.S. 739, 745 (1987) (in facial challenges, challenger must establish that no set of circumstances exists under which the challenged act would be valid). The Supreme Court has called into question the continuing validity of the Salerno rule in the context of First Amendment challenges, like the one here. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 339, n.6 (2008). In cases involving federal preemption of an ordinary state statute, however, the rule applies. SeeHotel&MotelAss’nofOaklandv.CityofOakland, 344 F.3d 959, 971 (9th Cir. 2003).(quoting Salerno, 481 U.S. at 745); see also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (applying Salerno to a federal preemption [facial] challenge to a state statute). 18 567 U.S. 387, 414-15 (2012); see also Ga. Latino All. for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1267–68 (11th Cir. 2012). 19 See Arizona, 567 U.S. at 406.
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Contrary to the groundless assertion made by amicus, Immigration Reform Law Institute, in its brief in support of Texas, there is no special, heightened requirement for or prohibition on finding preemption of state statutes that conflict with immigration laws.20 Moreover, the Institute did not address the conflict preemption arguments Houston makes here and did not address implied conflict preemption at all. Its arguments thus misfire here.
B. SB4 Directly and/or Impliedly Conflicts with § 1357(g)’s Scheme to Ensure That Those Functioning as Immigration Officers are Trained, Certified, and Carefully-Supervised by the U.S. Attorney General 1. Subsection 1357(g)’s Local Enforcement Scheme21
8 U.S.C. § 1357(g)(1) provides that, “Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer … may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.” Subsection 1357(g)(9), provides, however, that “nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.” Id. (emphasis supplied).
20 See Dkt. 137, at 7-8. Instead, the footnote the Institute mis-cites from De Canas v. Bica, 424U.S.351, 357 n.5 (1976), says nothing more remarkable than that “conflicting law … should be pre-empted … ‘onlytotheextentnecessarytoprotecttheachievementoftheaimsof’thefederal law” andreconciled, if possible.20 Grounded in notions of constitutional avoidance, that rule governs every conflict preemption scenario. 21 A copy of 8 U.S.C. § 1357 is attached as Exh. C for the court’s convenience.
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Subsection 1357(g)(5) governs the content of such agreements and is particularly important for this case. It provides that any written agreement must specify “the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual.”22 Thus, the plain language of the statute indicates that Congress intended for the decision whether local officers’ immigration enforcement activities would be mandatory or optional to be the sole province of the U.S. Attorney General based on his or her agreement with local decision-makers. SB4 takes that power for the State.
Subsection 1357(g) is expressly made subject to 31 U.S.C. § 1342, which is the general prohibition on the federal government’s receiving free services. It provides, in relevant part, that an “officer or employee of the United States Government … may not accept voluntary [free] services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Id. (emphasis supplied). Routine immigration enforcement and, in particular, routine enforcement of ICE detainer requests, which are addressed to individuals who have already been “detained” by law enforcement or are already in “custody” does not constitute such an emergency.
In addition, § 1357(g) itself also contains a similar prohibition: “the Attorney General may not accept a service under this subsection if the service will be used to
22 Id. (emphasis supplied) (cited in United States v. Arizona, 641 F.3d 339, 348 (9th Cir. 2011), aff’d in part, rev’d in part, 567 U.S. 387 (2012)).
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displace any Federal employee.” Id. at § 1357(g)(6). In other words, the federal government is not permitted to use borrowed local police officers to avoid hiring the ICE and DHS employees it needs. Together, subsections 1357(g)(6) and 1342 make clear that the Government may not legally accept, cannot require that local government finance, or that local law enforcement officers perform the functions of immigration officers on a routine, systematic basis without a contract.
This is not to say, as Texas argued at the June 26 hearing, that Houston law enforcement officers would have been barred from reporting to ICE Osama bin Laden’s undocumented presence in the Houston Police Department lobby in the absence of a § 1357(g)(1) contract. Subsection 1357(g)(10), read properly, in context, and within the structure and purposes of § 1357(g), provides for just such contingencies. Likewise, 8 U.S.C. § 1373, which provides for cooperation and communication between state law enforcement and federal immigration authorities, would also cover such a contingency.
While ignoring thesereadily-available “cooperation”provisions in response to Houston’s preemption argument, Texas and the Government nevertheless rely almost exclusively upon §§ 1357(g)(10) and 1373 in arguing that all that SB4 requires is mere cooperationandcommunicationandthatnothing inSB4 implicatesorrequiresthata localofficerperform thefunctionsof immigrationofficers. Thus,they arguethatthere is no need for the kind of agreement § 1357(g) envisions. This court, however, cannot
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properly read these provisions in a vacuum to nullify the remainder of § 1357(g) and allow routine performance of immigration officer functions without a contract.23
First, the Government’s and Texas’ reading of § 1357(g)(10) is belied by the plain language of SB4. Under § 1357(a)(1), immigration officer functions include the “power without a warrant to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States.” This function corresponds directly with SB4’s [amended Tex. Gov’t Code] § 753.053(b)(1), which provides that cities “may not prohibit or materially limit” their officers from “inquiring into the immigration status of a person under lawful arrest or detention.” Thus, under SB4, both immigration officers and local police have the “power to interrogate” regarding immigration status.
Subsection 1357(g)(1) also lists as a function of immigration officers the “detention of aliens in the United States.” This function likewise corresponds directly to SB4’s [amended Tex. Code Crim. P.] art. 2.251(a)(1), which provides that law enforcement agencies “shall comply with, honor, and fulfill any request made in the [ICE] detainer requests provided by the federal government.” Compliance with such detainer“request”iscurrentlyvoluntary.24It is,therefore,falsetoargue,asbothTexas
23 Tex. Gov’t Code §§ 311.021(2) (“the entire statute is intended to be effective”); 311.023(5) (in construing a statute, court may consider the “consequences of a particular construction”). The Texas Code Construction Act applies when a federal court is interpreting a Texas statute. 24 See Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (compliance with detainer request is not mandatory); Mercado v. Dallas Cty., 2017 WL 169102, *16 (N.D. Tex. Jan. 17, 2017) (same); 8 C.F.R. § 287.7(a) (“detainer is a request that such agency advise the Department, prior to the release of the alien …”).
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and the Government do, that, under SB4, local police will not perform immigration officer functions but will only “cooperate” with and assist them.
SB4 itself also differentiates between the power to interrogate and the ability to cooperate, communicate, and assist. SB4’s amended Tex. Gov’t Code §753.053(b)(1), empowers officers to inquire “into the immigration status of a person under lawful arrest or detention.” By contrast, § 753.053(b)(3), addresses “assisting and cooperating with federal immigration officers.” Because the Texas Legislature itself treats cooperation and assistance as something separate and distinct from inquiring as to immigration status, this Court may not conflate the two as Defendants suggest.
Subsection’s 1357(g)(6)’s and 1342’s real import then is in restraining Texas’ and the Government’s expansive interpretation of §§ 1357(g)(10) and 1373 as permitting systematic enforcement of immigration laws without a written agreement. Yet there are other reasons for this court to reject the Government’s and Texas’ reading. First, it is undercut by the Government’s own explanation of the purpose of § 1357(g)(10) in its Guidance to State and Local Government’s Assistance in Immigration Enforcement, which is attached as Exh. D here. 25 It explains:
As contemplated by this provision [(g)(10)], DHS has invited and acceptedtheassistanceof state and local law enforcementpersonnelin a varietyof contextsthatlieoutsideofthewrittenagreementsprovidedfor by paragraphs (1) - (9) of subsection 1357(g), such as through BESTs, the Criminal Alien Program, Fugitive Operations Task Forces, and
25 See U.S. Dep’t of Homeland Security (“DHS”), Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 7 (July 16, 2015), available at https://www.dhs.gov/publication/guidance-state-and-local-governments-assistance-immigrationenforcement-and-related. The court is asked to take judicial notice of this published, government document that is currently available on the DHS website. See Fed. R. Evid. 201.
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Operation Community Shield. Moreover, state and local law enforcement officers render assistance to DHS on a case-by-case basis as immigration matters come to their attention in the performance of their regular duties under state or local law.
Id. (emphasis supplied). In the Government’s view then, § 1357(g)(10) is reserved for
special federal programs and case-by-case assistance. Nothing in its own explanation
would allow for the systematic subversion of the rest of §1357(g).
Second, the Ninth Circuit also embraced Houston’s more cabined reading of
§ 1357(g)(10) in a part of its opinion that was not raised, briefed, or decided in the
Supreme Court.26 It explained:
Although this language, read alone, is broad, we must interpret Congress’ intent in adopting subsection (g)(10) in light of the rest of § 1357(g). Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify the rest of § 1357(g), which demonstrates that Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the [U.S.] Attorney General’s supervision. Subsection (g)(10) does not operate as a broad alternative grant of authority for state officers to systematically enforce the INA outside of the restrictions set forth in subsections (g)(1)-(9).
The inclusion of the word ‘removal’27 in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under § 1357(g) to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government. By including ‘removal’ in § 1357(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove immigrants. Therefore, the inclusion of ‘removal’ in the list of ways that a state may ‘otherwise []
26 A quick review of the Government’s Brief in the Supreme Court indicates that it dropped its preemptionargumentunder§1357(g) infavorofoneobliquelyaddressingdeferredactionprograms, after the decision in the Ninth Circuit. See State of Arizona v. United States of America, 2012 WL 939048, *44-45 (2012) (Brief of the United States); see also State of Arizona v. United States of America, 2012 WL 1332574, *1 (2012) (Brief of Petitioners) (petitioners did not address this argument or the Ninth Circuit’s discussion of it in their brief or petition). 27 DHS’ Guidance makes exactly the same argument. See DHS, supra note 25, at 9.
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cooperate with the Attorney General,’ indicates that subsection (g)(10) does not permit states to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated by state law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officers—or such officers are confronted with the necessity—to cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are required for systematic and routine cooperation. Similarly, we interpret subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of § 1357(g).
In sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General—to whom Congress granted discretion in determining the precise conditions and direction of each state officer’s assistance. We find it particularly significant for the purposes of the present case that this discretion includes the Attorney General’s ability to make an individual officer’s immigration-enforcement duties permissive or mandatory. 8 U.S.C. § 1357(g)(5).28
28 Arizona, 641 F.3d at 349-50 (emphasis supplied). The court thus found impliedly preempted Section 2(B) of the Arizona law, which is quite similar to the enforcement provisions of SB4. It explained:
Section 2(B) sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress’ explicit requirement that in the ‘[p]erformance of immigration officer functions by State officers and employees,’ such officers ‘shall be subject to the direction and supervision of the Attorney General.’ 8 U.S.C. § 1357(g)(3). Section 2(B) therefore interferes with Congress’ scheme because Arizona has assumed a role in directing its officers how to enforce the INA. We are not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General's role in directing state enforcement of federal immigration laws.
Id. Emphasis supplied.
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This reading is not inconsistent with the Supreme Court’s determination in Arizona that §§ 1357(g)(10) and 1373 evince Congressional intent to encourage cooperation, such that the “federal scheme thus leaves room for a [statewide] policy requiring state officials to contact ICE as a routine matter.” 567 U.S. at 413 (emphasis supplied). As demonstrated, even the Texas Legislature, in drafting SB4, recognized a distinction and reflected in its text the notion that police cooperation, coordination, and contact with ICE are not the same thing as officers stepping into the shoes of immigration officers to perform immigration officers’ statutory functions on a routine basis. More important, the Government’s own Guidance make this distinction crystal clear. It states:
there is an important distinction between communication of alien-status information between a state or local government and DHS, and the original acquisition of information by the state or local officer from an individual. The terms ‘[t]o communicate’ and ‘report’ in 8 U.S.C. §1357(g)(10)(A) encompass only the specific act of exchanging information with DHS; that provision does not, in itself, provide a state or local officer with additional authority to investigate an individual’s immigration status so as to acquire information that might be communicated to DHS. Nor does 8 U.S.C. § 1373, by itself, provide the state or local officers with that additional authority.29 As a result, nothing in Arizona precludes Houston’s interpretation of §1357(g)(10). Finally, Houston’s interpretation is supported by Congress’ apparent purpose in requiring contracts with local governments before local officers are permitted routinely to perform immigration officer functions. Under § 1357(g), the federal government may ultimately be held liable for those who act as its immigration officers. The use of
29 See DHS, supra note 25, at 12 (emphasis supplied).
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contracts necessarily identifies and limits the universe of those for whom the federal government may become responsible. To that end, Subsection 1357(g)(2) requires that any local police officer carrying out such functions, not only “be knowledgeable in federal immigration law,” but the contract “shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.”30 Indeed, such officer “shall be subject to the direction and supervision of the Attorney General” who “is required to supervise and direct the individual” per specific provisions in the agreement. Id. at § 1357(g)(3) & (5). These provisions make clear that, although local police officers will be acting under color of federal law, he or she “shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).” Id. at § 1357(g)(7) & (8). Finally, no such police officer may displace a federal employee, such as a current or future employee of ICE. Id. at § 1357(g)(6).
These exacting requirements demonstrate that it is almost unimaginable that the Congress would have authorized the wide-ranging immigration enforcement by local police officers across Texas that SB4 requires without § 1357(g)’s requisite ongoing supervision, training, or certification by the U.S. Attorney General.
30 8 U.S.C. § 1357(g)(2) (emphasis supplied).
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2. SB4 Conflicts with and Impermissibly Skews the Scheme of Federal Immigration Enforcement Set Forth in § 1357(g)
SB4 directly conflicts with the immigration enforcement scheme set forth in § 1357(g) by 1) mandating that local police officers perform immigration officer functions even though it is a violation of federal law for ICE, DHS, or any other federal government agency to accept such services without paying for them; 2) creating an unfunded mandate in violation of 31 U.S.C.A. § 1342; 3) mandating that local police officers and cities provide services federal law expressly makes voluntary; 3) punishing civilly, criminally, and with forfeiture of office the failure to provide services federal law expressly makes voluntary; 4) subjecting the federal government, without its permission or authorization, to liability by forcing local police officers to act under color of federal law without providing the training or supervision required by federal law from federal law enforcement agencies; 5) eliminating the knowledge, training, and supervision requirements mandated for those acting as federal immigration officers under federal law; 6) in violation of federal law, displacing federal workers who ICE and DHS might otherwise have hired in Texas to enforce the federal immigration laws; and, most important, 7) depriving cities of the statutory choice whether they will mandatorily or voluntarily enforce federal immigration law.
In addition or in the alternative, for the same reasons, SB4 frustrates the purposes of § 1357(g) and “skews” improperly and irrevocably the “delicate balance of statutory objectives” it sets forth to ensure that those who enforce the immigration
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laws are highly trained, certified, and carefully supervised by federal authorities.31
Moreover, as in Buckman, SB4 exists “solely by virtue” of the federal immigration
laws. As a result, the requirements and punishments it imposes on law enforcement officers, agencies and public officials are preempted.32
There can be no doubt that SB4’s operative provisions are at least impliedly
preempted. Indeed, the Government itself states in its Guidance that, “through these and
other cooperative arrangements [under § 1357(g)], state and local governments have
been able to assist DHS in a manner that conforms to DHS’s balanced administration of
a complex immigration scheme and that is consistent with DHS’s specific priorities and
approach.”33
More important, SB4 imposes precisely the kind of mandatory local regime that
the Government itself has deemed to be in conflict with both the federal immigration
laws, its carefully-crafted enforcement scheme, and its immigration enforcement goals.
As the Government itself explains in its Guidance, currently available on its website:
In requiring ‘cooperation,’ the INA thus requires that a state or local law enforcementofficerwho assists DHS officers intheir enforcementof the immigration laws must at all times have the freedom to adapt to federal priorities and direction and conform to federal discretion, rather than being subject to systematic mandatory state or local directives that may work at odds with DHS. Although a similar lack of receptiveness to federal priorities might pervade even a system that gives officers discretion, any such state
31 See Buckman, 561 U.S. at 348 (“The balance sought by the Administration can be skewed by allowing [such] claims …”). 32 Id. at 352-53; see also Perdue, 209 F. Supp. 3d at 851 (E.D.N.C. 2016) (holding that a state law claim is preempted under Buckman if “‘the existence of these federal enactments is a critical element in [plaintiff's] case,’ and [if] a plaintiff’s claims ‘exist solely by virtue of the FDCA ... requirements.’” Id. (quoting Buckman, 531 U.S. at 352)). 33 See DHS, supra note 25, at 7 (emphasis supplied).
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or local government-directed mandate would necessarily function as a parallel or contradictory direction, in competition with the Secretary’s direction, as to how to enforce immigration law, thereby eroding the federal government’s exclusive authority over immigration enforcement. Where inconsistent with federal priorities, a mandatory directive would force the Federal Government to divert resources away from the enforcement priorities it has set. Evenifa state or local mandatory directive matches the federal priorities in place at the time of adoption, federal priorities and the manner in which they are applied can, and do, change. In fact, over the past two years, the federal immigration enforcement priorities and the manner in which they are applied have been significantly revised. While any mandatory scheme raises these concerns, they are particularly pressing where state or local mandates are codified because such codified laws are by their nature more difficult to adjust to respond to changing priorities of the Federal Government.34
Because SB4 conflicts with or skews § 1357(g)’s delicate balance of statutory
objectives to utilize only certified-trained, knowledgeable, closely-supervised (by
federal officials) immigration officers to enforce federal immigration law, federal law
preempts Art. 2.251 [Code of Criminal Procedure], § 39.07 [Texas Penal Code],
§ 87.031 [Local Gov’t Code], and §§ 752.053(a), (b)(1), (b)(2)(B). 752.055, 752.056,
752.0565 [Gov’t Code] of SB4. These provisions are, therefore, of no effect.35
There is no set of circumstance under which SB4 could operate constitutionally.
Since Houston is not the federal government, it does not currently provide training to
itselected or appointed officials, or employees, including its police officers, regarding
federal immigration enforcement.36 Even if Houston did provide some immigration
enforcement training, however, it could never mandate the U.S. Attorney General’s
34 DHS, supra note 25, at 9-10. 35 See Buckman, 531 U.S. at 348. 36 Houston, however, does provide training and policies regarding probable cause, warrants, and lawful searches and seizures unrelated to federal immigration law. See Exh. A, ¶¶ 16-17.
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training, direct supervision of its officers, or require that he or she certify them as trained.37 Moreover, SB4 could never provide the choice to local governments that §1357(g)(5)providesastowhetherlocalenforcement willbemandatory orvoluntary. Finally, SB4 deprives cities and the federal government of the ability to prevent a finding of liability against them for torts and similar claims or to have the federal government takelegal responsibility when local police act as immigration officers. Id. The listed provisions of SB4 are, therefore, preempted.
C. Texas’ and the Government’s Preemption Responses are Misdirected, Baseless, or Both
Both Texas and the Government offer similar responses to Plaintiffs’ various preemption arguments.38 None has merit.
1. No Deference is Due the Government’s Views on SB4’s Preemptive Effect or Its Statement of Interest
It is well-settled that where, as here, the federal government has so dramatically changed its position [at least in its Statement of Interest] with regard to the constitutionalityof statelaws, itsviewsonthepreemptiveeffectof federalstatutes are entitled to no deference whatsoever. In Wyeth v. Levine, 555 U.S. at 581, the Supreme Court held that “the United States’ amicus brief is similarly undeserving of deference.” Id. (emphasis supplied). It explained: “Unlike the Government’s brief in Geier v. American
37SeePLIVA,Inc.v.Mensing, 564 U.S. 604, 623-24 (2011) (“[w]hen a party cannot satisfy itsstateduties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes”). 38 Texas will also have the opportunity to respond to the arguments Houston makes here under the court’s June 30 briefing order.
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Honda Motor Co., 529 U.S. 861 (2000), which explained the effects of state law on the DOT’s regulation in a manner consistent with the agency’s prior accounts … the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case.”39
Here, the Government’s Guidance, see supra note 25, demonstrate its longstanding interpretation of the federal immigration laws. Its Statement of Interest, however, departs markedly from those views. This court should, therefore, disregard it here, along with the Government’s views on the preemptive effect of SB4 on the federal immigration laws it contains. If, however, this court gives the Government’s statement any deference Houston would respond as follows:
2. SB4’s Penalties and Mandates Are Not Merely a “Matter of Internal State Management”
Both Texas and the Government argue that the penalties and mandates SB4 imposes do not create a preemption issue but create only a “matter of state management;” therefore, “a state may direct the operations of its officials and discipline them for failing to comply with the state direction without implicating federal preemption principles or requiring federal approval.”40 Nothing in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), which the Government cites for this notion, supports it, including the language it quotes and takes badly out of context. Instead, all of thecasestheGovernmentcitesaddress whether, without anexplicitreferenceto
39 Wyeth, 555 U.S. at 581 (emphasis supplied). 40 Statement of Interest of the United States [Doc. 90] (“Statement of Interest”) at 22 (emphasis supplied).
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political subdivisions in the statute, cities can assert federal statutory rights delegated
to states.41 Thus, in Mortier, a case seeking to hold state and local pesticide regulations
preempted by federal law, the Court upheld local governments’ power to regulate
pesticides, a power granted specifically to states, because the application of ordinary
preemption principles did not reveal an unconstitutional conflict. The case does not
discuss in any manner a state’s disciplining a city like an errant schoolchild.
Second, the Fifth Circuit has held, in the very cases the Government cites, that
similar encroachment upon local authority was not the minimal management of state
affairs the Government would dismiss here. To the contrary, in Koog, 79 F.3d at 461
(emphasis supplied), the Fifth Circuit explained:
our understanding of the principles of federalism does not permit us to characterize the Brady [gun control] Act as a ‘minimal interference with state functions.’ We do not consider it a minimal interference when a local sheriff or chief of police is offered no choice but to devote purely local manpower and monetary resources to check the backgrounds of countless applicants for handgun purchases.
Worse, in a footnote to its Statement of Interest, the Government cites an 84-
year old Supreme Court case apparently to preserve the argument that cities somehow
41 Indeed, the very sentence before the one quoted by the Government states: “Properly read, the statutory language tilts in favor of local regulation.” Id. at 607. See also Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 433 (2002) (“[r]eading § 14501(c)’s set of exceptions [some including political subdivisions and some not] in combination … we conclude that the statute does not provide the requisite “clear and manifest indication that Congress sought to supplant local authority”); Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996) (in a case involving challenge by local law enforcement officers to the mandates of federal gun control law, the court held such mandates unconstitutional in part, stating merely that states have a say in the matter). Neither case, however, stands for the proposition that cities have no rights to complain of draconian state penalties for failure to comply with federal direction or of the unconstitutionality or preemption of state law that directly affects them.
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lack standing to sue the states that “created” them.42 The Government’s argument,
however, misstates binding federal law in the Fifth Circuit.
In Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979), cert. denied 444 U.S. 827
(1979), the court held that a school district could bring an action, alleging federal
preemption, againstthe Stateof Texas and others to challengethe constitutionalityof
state statutes that required certain districts to participate in federal-subsidized breakfast
programs. Addressing cases like Williams v. Mayor, the court explained:
The SupremeCourtitself said, in a somewhatdifferent contextfrom that facing us here, that ‘a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.’ Gomillion v. Lightfoot, 364 U.S. 339, 344, 81 S. Ct. 125, 128, 5 L. Ed. 2d 110 (1960). We agree. We think these cases are substantive interpretations of the constitutional provisions involved; we do not think they hold that a municipality never has standing to sue the state of which it is a creature. In fact, correctly interpreted, these cases do not deal with “standing,” in the sense in which we use the term, at all.
Id. at 1068 (emphasis supplied). More recently, the Fifth Circuit has reaffirmed that,
“although some circuits have followed a per se rulethatpolitical subdivisions may not
sue their parent states under any constitutional provision, that is not the rule in this circuit.”43
Equally important, cities’ ability to assert challenges under the Supremacy
Clauseisparticularlyimportantwhere, ashere, theremedysoughtis only prospective
42 Id. at 22, n.13, citing Williams v. Mayor, 289 U.S. 36, 40 (1933). 43 Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir. 2008).
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injunctive relief, not money damages. As the Court explained in Green v. Mansour, 474
U.S. 64, 68 (1985) “the availability of prospective relief of the sort awarded in Ex parte
Young gives life to the Supremacy Clause. Remedies designed to end a continuing
violation of federal law are necessary to vindicate the federal interest in assuring the
supremacy of that law.”44
Finally, Houston has standing to assert federal preemption against Texas
because of the Supremacy Clause’s unique nature. “The Supremacy Clause is ‘not a
sourceof anyfederalrights’butratheroperat[es]to‘securefederalrightsbyaccording
them priority whenever they come in conflict with state law.’ That is, a plaintiff
allegingaSupremacyClauseclaimisactuallyallegingarightunder someotherfederal
law, which trumps a contrary state law by operation of the Supremacy Clause.” 45
44 Id. at 68 (citing Ex parte Young, 209 U.S .123, 155-56, 159 (1908)). 45 City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1256 (10th Cir. 2011) (quoting Chapman v. Hous. WelfareRightsOrg.,441U.S.600, 613(1979)).There is also agoodargument,madein learned treatises and academic articles, that cities also possess independent constitutional status under the Tenth Amendment to the U.S. Constitution, which reserves powers not delegated to the United States “to the States, respectively, or to the people.” (Emphasis supplied). Under long-standing principles of statutory construction, “the people” in this context must mean something other than the states. The phrase also cannot be treated as mere constitutional surplusage. At the time the Constitution was drafted, Thomas Jefferson, Alexis de Toqueville, and others considered cities and town to be “little republics,” “repositories of popular sovereignty through which citizens decided the most fundament political questions.” Jake Sullivan, Comment, The Tenth Amendment and Local Government, 112 Yale L.J. 1935, 1940 & n.31 (May 2003). Several influential writers have, therefore, posited that the Tenth Amendment’s reference “to the people” was to cities and towns because it “presupposed the existence of cities and towns as important political communities through which people expressed their will and exercised various powers.” Id. at 1941 & n.34 (emphasis in original), (citing Richard Briffault, Our Localism: Part I―The Structure of Local Government Law, 90 Colum. L. Rev. 1, 89 (1990)); see also Annie Decker, Preemption Conflation: Dividing the Local from the State in Congressional Decision Making, 30 Yale L. & Policy Rev. 321, 350 (Spring 2012) (citing Sullivan and others, she argues that “the Tenth Amendment can be read to preserve the right of local self-determination, seeing local governments as the best vehicle for expression of the people’s will. Similarly, looking beyond the Constitution’s textual silence,othershave argued thatlocal governmentshave aform ofsovereignty apartfrom thestates”); Amasa M. Eaton, The Right to Local Self-Government, 13 Harv. L. Rev. 441 (Feb. 1900) (arguing that cities and towns reserved their right to self-government long before the Constitution was drafted).
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3. The Government’s “Cooperation” Arguments Ignore the Operative Provisions of § 1357(g) and its Own Guidance
The Government’s preemption arguments, at pages 20-21 of its Statement of Interest,likeTexas’s argumentsinitsmemorandum, andtheargumentsof both atthe court’shearing, suggestthatthere isnoconflictbetweenSB4 andfederal immigration law because all SB4 requires is the mere cooperation and communication already provided for in § 1357(g)(10). To embrace this argument, this court must believe that the rest of § 1357(g)’s requirements have somehow been nullified by § 1357(g)(10) and that SB4’s punitive provisions are actually toothless. Moreover, this court must also believe that SB4 requires something that the Government would consider to be “cooperation” under the federal immigration laws. None of these assumptions is grounded in reality or federal law.
First, as set forth in Section I(B)(1) above, the Government’s expansive interpretation of § 1357(g)(10) runs counter to the plain language of § 1357(g), its structure and purposes, bedrock principles of statutory interpretation, the Government’s own Guidance, and the Ninth Circuit. Subsection 1357(g)(10) simply cannot be read properly to negate all the other subsections of § 1357(g). Yet that is precisely how the Government and Texas would interpret the provision here.
Second, also as set forth above, SB4 expressly empowers local officers to perform the functions of immigration officers, not merely to cooperate and communicate with them. The Texas Legislature made this distinction clear when it separated those functions in Tex. Gov’t Code § 753.053(b)(1), which empowers
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officers to inquire “into the immigration status of a person under lawful arrest or
detention” and, § 753.053(b)(3), which addresses “assisting and cooperating with
federal immigration officers.” Moreover, § 1357(a)(1) sets forth the functions of
immigration officers and SB4 requires that local officers perform them on a regular
and systematic basis. That is not cooperation: it isconscription.
Third, the Government’s own published Guidance, earlier versions of which
were cited in Arizona, 567 U.S. at 410, eviscerate its arguments here. First, its definition
of “cooperate” in § 1357(g)(10)(B) excludes the very activities SB4 requires. For example,
its Guidance defines the term “cooperate” as
the rendering of assistance by state and local officers to federal officials, in the latter officials’ enforcement of the INA, in a manner that maintains the ability to conform to the policies and priorities of DHS and that ensures that individual state and local officers are at all times in a position to be— and, when requested, are in fact—responsive to the direction and guidance of federal officials charged with implementing and enforcing the immigration laws.46
More important, the Government does not consider it “cooperation” when a state or
localgovernment thwartsitsgoals, schemes, orprocesses as SB4 inevitably does.
[t]o constitute genuine cooperation as contemplated by 8 U.S.C. § 1357(g)(10), state or local governments must not systematically act in a way that conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate. States may not act with the aim or effect of altering the Federal Government’s prioritization or balancing of different goals—such as by effectively compelling the Federal Government to address certain ends or by furthering those ends while disregarding others, or by attempting to frustrate the Federal Government’s accomplishment of one end to advance other ends. In other words, when states attempt to act in the immigration arena, their actions cannot disrupt or interfere with the Federal Government’s pursuit of its multiple, inter-related goals.
46 DHS, supra note 25, at 8 (emphasis supplied).
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Id. at 10 (emphasis supplied). Most important, in discussing the need for federal
primacy in immigration enforcement, the Government’s Guidance states:
The INA’s ‘cooperation’ requirement means that a state or local government may not adopt its own mandatory set of directives to implement the state’s own enforcement policies, because such a mandate would serve as an obstacle to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances require. State or local laws or actions that are not responsive to federal control or direction, or categorically demand enforcement in such a way as to deprive the Federal Government—and state and local officers—of the flexibility and discretion that animates the Federal Government’s ability to globally supervise immigration enforcement, do not constitute the requisite ‘cooperation’ within the meaning of 8 U.S.C. § 1357(g)(10)(B), even if the state or local government’s own purpose is to enforce federal immigration law.
Id. at 8 (emphasis supplied). The Government reinforces this notion in the website’s
language introducing this document. It states: “for a state or local government to act
systematically on a matter that affects immigration enforcement, however, that action
has to be consistent with the comprehensive regulatory regime of the INA, which requires such state enforcement efforts be responsive to the policies and priorities set by DHS.”47
There is, therefore, nothing about what SB4 actually does― turn Texas’ local law
enforcement officers into a rump federal enforcement force, far outside the purview of
DHS and not trained or supervised by them―that would constitute “cooperation”
under even the Government’s own definition of the term.
In this regard, in its Statement, the Government rewrites § 1357(g)(10) to
assume that the cooperation required is cooperation between individual officers and
47 DHS, supra note 25 (website introduction) (emphasis supplied).
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ICE and its individual agents. The statute, however, refers to cooperation and communication with the Attorney General. They are not the same thing. The Government’s Guidance make clear that § 1357(g)(10) merely reinforces federal policymaking primacy. “The text of the statute [§ 1357(g)] makes clear that state and local governments may not adopt and implement their own enforcement programs based on their own assessment of what is appropriate for administering the INA, separate and apart from what the Secretary has established and oversees. Thus 8 U.S.C. § 1357(g)(10)(B) refers to states cooperating ‘with the [Secretary]’ (emphasis in original), the federal officer charged by Congress with the administration of the INA.”48
Fourth, although the Government glosses over the mandatory character of the alleged “cooperation” coerced here, § 1357(g)(5), which requires U.S. Attorney General and cities to decide jointly what enforcement activities will be mandatory or voluntary, and the Supremacy Clause do not. Indeed, courts have found conflict preemption where only the technique of enforcement varied.
In Arizona, for example, the court found § 5(C) of the state’s immigration law preempted on its face, even though it attempted to achieve the same goals as federal law, because it involved a conflict in the method of enforcement.49 The Court recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.”50 That is particularly true where, as here,
48 Id. at 8-9. 49 Arizona, 567 U.S. at 406. 50 Id. (citing Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971)).
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Texas purports to do in SB4 what the federal government is absolutely, constitutionally prohibited from doing: mandating that local authorities enforce federal law.51 By nullifying § 1357(g)(5)’s choice of mandatory or voluntary enforcement activities, § 1357(g)’s voluntary contracts, and substituting draconian penalties to ensure compliance, SB4 substantially changes the techniques Texas and the Government may use to enforce locally federal immigration laws. Thus, even if Texas is right about cooperation―and it is not―SB4’s operative provisions are still preempted.
Texas’ cannot escape the mandatory nature of SB4―and preemption―by claiming that prohibiting a prohibition on immigration inquiries, combined with extraordinarily stiff penalties for any infraction, including barring speech critical of SB4 or the policies it mandates, somehow renders a police officer’s inquiry into a person’s immigration status voluntary, cooperative, or anything but the product of the rankest, most naked kind of coercion. Instead, by changing so dramatically the method by which local governments must deal with federal immigration enforcement, the Texas Legislature has doomed SB4 to inevitable preemption.
4. The Government’s Argument that Federal Law is Not in Conflict with SB4 Because It Does Not Prohibit Inquiring About Immigration Status is Misdirected
In its final preemption response, the Government claims that Arizona permitsa law that imposes a mandatory obligation to inquire about immigration status. It doesn’t.
51 See Koog, 79 F.3d at 461 (“we believe that permitting Congress to circumvent the coercion principle by issuing commands directly to state and local officials critically diminishes the separate and sovereign dignity of the States recognized by New York); see also Commissions Imp. Exp. S.A. v. Republic of the Congo, 757 F.3d 321, 326 (D.C. Cir. 2014) (citing Arizona).
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First, Arizona’s § 2(B) differs from SB4’s § 752.053 in that § 2(B) left considerable discretion in the hands of local officers to make “reasonable attempts” to determine immigration status based upon a “reasonable suspicion” that the person was unlawfully in the United States. 567 U.S. at 411. SB4 includes no such provisions and, infact,wouldimposeharshpenalties onany lawmakerorsupervisor who wouldallow such discretion. Instead, status checks under SB4 are effectively mandatory in virtually all circumstances. Arizona never countenanced SB4’s unyielding requirements.
Second, in the Supreme Court, the Government’s objection to SB4 was not that itconflictedwiththeenforcementscheme setforthin§1357(g).Althoughithadraised that argument in the Ninth Circuit, by the time the case reached the Supreme Court, the Government focused on § 2(B)’s interference with its deferred action programs and other enforcement priorities. Id. at 412. As a result, the Court focused more on the communication requirement of § 2(B) than on the mandatory inquiry provision and concluded that “the federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.” Id. at 413 (emphasis added).
The Government’s own Guidance, however, makes clear that such routine contact is not equivalent to routine interrogation about immigration status.
there is an important distinction between communication of alien-status information between a state or local government and DHS, and the original acquisition of information by the state or local officer from an individual. The terms ‘[t]o communicate’ and ‘report’ in 8 U.S.C. 1357(g)(10)(A) encompass only the specific act of exchanging information with DHS; that provision does not, in itself, provide a state or local officer with additional authority to investigate an individual’s immigration status so as to acquire
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information that might be communicated to DHS. Nor does 8 U.S.C. § 1373, by itself, provide the state or local officers with that additional authority.52 Thus, nothing in Arizona authorizes the mandatory, routine interrogation about immigration status that SB4 requires. II. SB4 VIOLATES THE HOME-RULE PROVISIONS OF TEXAS CONSTITUTION ART. XI, § 553 TheCourt may takejudicialnoticethat Houstonisahome-rulecity.54Itscharter describes the procedure under which local officials, including a Mayor and City Council, are elected and removed from office.55 It also reserves to Houston and its governing body all constitutional home-rule authority, including the discretion to allocate resources and determine its own priorities in promoting the welfare, health, prosperity, comfort, public safety, and convenience of all Houstonians.56 Under the Texas Constitution, art. XI, § 5, home-rule cities such as Houston possessthefullpower of self-government and“looktotheLegislaturenotfor grantsof power, butonly forlimitationsontheirpower.”57UnlikethefederalSupremacy clause, however, the State of Texas, under art. XI, § 5, may not simply legislate and expect
52 See DHS, supra note 25. at 12. 53 The motion/application of the City of Austin raises a home-rule argument that would encompass Houston’s argument here. See Dkt. 57, at 18-19. 54 See, e.g., Houston, Tex., City Charter, Art. II, § 2(b). 55 Id. at Art. V, et seq. 56 Id. at Art. II, § 2(a). 57 See Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993).
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cities to defer.58 Instead, a city must defer only to the extent that its law conflicts with the state statute.
The Stateof Texashasimposedno regulationsof itsownthatconflictwiththose imposed by municipalities. Instead, the State of Texas now purports to tell municipalities how to exercise power that was conferred on them by the federal government and the State Constitution that the cities still retain. The Texas Constitution’s home-rule provision does not permit such micro-management.
SB4 and, in particular, § 752.0565 [Gov’t Code] of SB4, entitled “Removal from Office,” also violates the Home Rule provision of the Texas Constitution, art. XI, § 5, by improperly denying Houston the power of self-government, including the right to elect and remove local officials, by misusing and misapplying quo warranto proceedings in a situation for which they were never intended or suited.
SB4 also violates art. XI, § 5, by improperly infringing Houston’s right to determine for itself how to exercise its own police power. Under the Houston City Charter, art. XVI, § 1: “The City of Houston shall have power by ordinance duly passed to establish and maintain the City Police Department, prescribe the duties of policemen andregulatetheir conduct.”In addition, art. VI, §7a givesHouston’smayor the power to appoint and remove heads of departments.
Pursuant to such provisions, § 34-22 of Houston’s Code of Ordinances states: “There is hereby created the office of the chief of police in the police department of the
58 City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990).
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city. The chief of police shall be appointed by the mayor and confirmed by the city council. Subject only to the orders and actions of the city council and mayor, the chief of police shall be the executive officer and director of the police department. He shall havemanagementof thedepartment, shallexerciseallof thefunctionsassignedtothe department,andshallcarryouttheprovisionsof lawandof ordinanceswithrespectto such functions.”
Neither the United States nor Texas Constitutions grant the Texas Legislature any authority to regulate the immigration status of foreign nationals. To the extent that SB4 seeks to regulate the manner in which Houston provides for the public health and safety of all of its residents and visitors, including foreign nationals, SB4 is an unconstitutional violation of Houston’s home-rule authority.
Finally, by arbitrarily imposing unduly burdensome and oppressive harms on Houston, its officials, its employees, and its residents, and by substantially restricting protected conduct including freedoms of expression, association, and travel, SB4 is not rationally related to any legitimate governmentalinterest. III. SB4 VIOLATES THE FIRST AMENDMENT AND TEXAS
CONSTITUTION ART. I, § 8 Houston adopts the First Amendment and Texas constitutional equivalents’ arguments and evidence submitted by the cities of El Cenizo, El Paso, Austin, and San Antonio in connection with their motions/applications for preliminary injunction. SB4 violates the constitutional provisions because it penalizes the protected speech of local officials who “endorse” a “policy,” even an “informal, unwritten policy,” that
37

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would contradict SB4’s mandates, and is unconstitutionally overbroad by including vague terms, such as “materially limit,” “custody,” “endorse,” “informal or unwritten policy,” Houston asks the court to enjoin SB4, and, in particular, §§ 752.053(a)(1),752.055-56, 752.0565 [Gov’t Code] of SB4, as violative of the First Amendment, as applied to the States through the Fourteenth Amendment, and art. I, § 8 of the Texas Constitution. IV. SB4 VIOLATES THE FOURTH AMENDMENT AND THE TEXAS
CONSTITUTION, ART. I, § 9 Houston adopts the Fourth Amendment arguments and evidence submitted by the cities of El Cenizo and El Paso in connection with their application for preliminary injunction. In particular, Houston is aware the El Cenizo plaintiffs are addressing the question of cities’ standing to raise Fourth Amendment issues, Houston agree with and adopts their view that plaintiffs standing to raise these issues because police officials cannot be made to choose between complying with SB4 and violating the Fourth Amendment, on the one hand, or disobeying SB4 and subjecting themselves to jail and removal from office, on the other. V. SB4 VIOLATES THE FOURTEENTH AMENDMENT EQUAL PROTECTION AND DUE PROCESS CLAUSES AND TEXAS CONSTITUTION ARTS. I, §§ 3 & 9 Houston adopts the Fourteenth Amendment Equal Protection and Due Process, and Texas equivalents’ arguments and evidence submitted by the cities of El Cenizo and El Paso in connection with their application for preliminary injunction.
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SB4 and, in particular, § 752.053(b) [Gov’t Code] of SB4, impermissibly invites police officers to engage in unconstitutional investigative practices, including profiling based upon race, ethnicity, national origin, and perceived status. SB4 prevents all legislative, executive, or judicial action at the local level that is designed to protect or even guide individual police officers in enforcing laws affecting immigrants as such. BecauseSB4failstopresentany cognizableGuidanceforenforcementof suspectedcivil immigration violations, SB4’s purported “savings clause,” id. at § 752.059, is illusory. SB4 cannot be constitutionally applied and should be enjoined in its entirety.
As set forth in in El Paso’s application, SB4’s citizen reporting provision, § 752.055, treats citizens and lawful immigrants differently, according privileges to citizens alone. There is no constitutional basis for this discriminatory treatment. Moreover, state-compelled enforcement of federal immigration laws is not a compelling interest that justifies such race-based discrimination. SB4 is not narrowly-tailored, and is not the least restrictive means of achieving the requisite governmental interest, if any.
There is likewise no rational basis for removing immigration enforcement from any control or guidance by police, chiefs, sheriffs, other local leaders, ICE itself, or the U.S. Attorney General as provided by contract by federal law. See 8 U.S.C. § 1357(g). This is a narrowly-tailored alternative that avoids the constitutional infirmities of SB4.
PRAYER FOR RELIEF The City of Houston respectfully request that the court enter a preliminary injunction barring Texas from enforcing SB4 in whole or in part.
39

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 48 of 54

Respectfully submitted, CITY OF HOUSTON LEGAL DEPARTMENT

By: /s/ Collyn A. Peddie

RONALD C. LEWIS

**

City Attorney

State Bar No.: 12305450

ronald.lewis@houstontx.gov

Judith L. Ramsey

Chief, General Litigation Division

State Bar No.: 16519550

judith.ramsey@houstontx.gov

Patricia L. Casey

Sr. Assistant City Attorney

State Bar No.: 03959075

pat.casey@houstontx.gov

Connica Lemond

Sr. Assistant City Attorney

State Bar No.: 24031937

connica.lemond@houstontx.gov

Collyn Peddie

Sr. Assistant City Attorney

State Bar No.: 15707300

collyn.peddie@houstontx.gov

Fernando De Leon

Sr. Assistant City Attorney

State Bar No.: 24025325

fernando.deleon2@houstontx.gov

900 Bagby, 4th Floor

Houston, Texas 77002

832.393.6491 - Telephone

832.393.6259 – Fascimile

Attorneys for Intervenors, City of Houston

Pending Pro Hac Vice Permission **

40

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 49 of 54

CERTIFICATE OF SERVICE
I hereby certify that on July 10th, 2017, I served the following attorneys with a true and correct copy of the foregoing document in accordance with Rule 5(b) of the Federal Rules of Civil Procedure.

/s/ Collyn A. Peddie Collyn A. Peddie

ATTORNEYS FOR EL CENIZO PLAINTIFFS:

Andre I. Segura asegura@aclu.org

Omar C. Jadwat ojadwat@aclu.org

Spencer Amdur samdur@aclu.org

Lee Gelernt

lgelernt@aclu.org

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street

New York, New York 10004

212.549.2676 – Telephone

212.549.2654 – Facsimile

Cody Wofsy

cwofsy@aclu.org

Stephen B. Kang skang@aclu.org

Cecillia D. Wang cwang@aclu.org

AMERICAN CIVIL LIBERTIES UNION

39 Drumm Street

San Francisco, California 94111

415.343.0785 – Telephone

415.395.0950 – Facsimile

Edgar Saldivar esaldivar@aclutx.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS P.O. Box 8306 Houston, Texas 77288 713.325.7011 – Telephone 713.942.8966 – Facsimile

Max Renea Hicks rhicks@renea-hicks.com LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, Texas 78703 512.480.8231 – Telephone

41

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Luis Roberto Vera, Jr. lrvlaw@sbcglobal.net LAW OFFICES OF LUIS ROBERTO VERA & ASSOCIATES, P.C. 111 Soledad, Suite 1325 San Antonio, Texas 78205-2260 210.225.3300 – Telephone 210.225.2060 – Facsimile

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:

Jo Anne Bernal

joanne.bernal@ca.epcounty.com

EL PASO COUNTY ATTORNEY

El Paso County Bldg.

500 E. San Antonio St., Room 203

El Paso, Texas 79901-2419

915.546.2083 – Telephone

915.546.2133 – Facsimile

Jose Garza

jgarza@trla.org

LAW OFFICE OF JOSE GARZA

7414 Robin Rest Dr.

San Antonio, Texas 78209

210.392.2856 – Telephone

Michael Patrick Moran michael@ggmtx.com GARZA GOLANDO MORAN, PLLC 115 E. Travis Street, Suite 1235 San Antonio, Texas 78205 210.892.8543 – Telephone

ATTORNEYS FOR TEXAS ORGANIZING PROJECT EDUCATION FUND PLAINTIFFS:

Efren Carlos Olivares efren@texascivilrightsproject.org TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Alamo, Texas 78516 956.787.8171 – Telephone 956.787.6348 – Facsimile

Mimi M.D. Marziani mimi@texascivilrightsproject.org TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive

42

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 51 of 54

Austin, Texas 78741 512.474.5073 – Telephone 512.474.0726 – Facsimile

ATTORNEYS FOR SAN ANTONIO PLAINTIFFS:

Deborah L. Klein

deborah.klein@sanantonio.gov

OFFICE OF THE CITY ATTORNEY, LITIGATION DIVISION

Frost Bank tower

100 West Houston Street, 18th Floor

San Antonio, Texas 78205-3966

210.207.8919 – Telephone

210.207.4357 – Facsimile

Andrea E. Senteno

asenteno@maldef.org

Celina Y. Moreno

cmoreno@maldef.org

Marisa Bono

mbono@maldef.org

Nina Perales

nperales@maldef.org

Tanya g. Pellegrini

tpellegrini@maldef.org

John Paul Salmon

jsalmon@maldef.org

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF)

110 Broadway, Suite 300

San Antonio, Texas 78205

202.293.2828 – Telephone

202.293.2849 – Facsimile

Thomas A. Saenz

tsaenz@maldef.org

MALDEF

634 S. Spring Street, 11th Floor

Los Angeles, California 90014

213.629.2512 – Telephone

213.629.0266 – Facsimile

Cory D. Szczepanik

cszczepanik@sidley.com

Yolanda Cornejo Garcia ygarcia@sidley.com

SIDLEY AUSTIN, LLP

2021 McKinney Avenue, Suite 200

Dallas, Texas 75201

214.981.3300 – Telephone

214.981.3400 – Facsimile

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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 52 of 54

Jose F. Sanchez

jose.sanchez@sidley.com

SIDLEY AUSTIN, LLP

555 West Fifth Street

Los Angeles, California 90013

213.896.6000 – Telephone

213.896.6600 – Facsimile

ATTORNEYS FOR CITY OF AUSTIN INTERVENORS:

Christopher J. Coppola christopher.coppola@austintexas.gov

Michael J. Siegel

michael.siegel@austintexas.gov

CITY OF AUSTIN

P.O. Box 1546

Austin, Texas78767

512.974.2161 – Telephone

512.974.1311 – Facsimile

ATTORNEYS FOR TRAVIS COUNTY INTERVENORS:

Anthony J. Nelson

tony.nelson@traviscountytx.gov

Laurie R. Eiserloh

laurie.eiserloh@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

314 West 11th Street, Room 590

Austin, Texas 78701

512.854.4801 – Telephone

512.854.4808 – Facsimile

Sharon Talley

sharon.talley@traviscountytx.gov

Sherine E. Thomas

sherine.thomas@traviscountytx.gov

Tim Labadie

tim.labadie@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

P.O. Box 1748

Austin, Texas78767

512.854.9513 – Telephone

512.854.4808 – Facsimile

ATTORNEYS FOR CITY OF DALLAS INTERVENORS:

Charles S. Estee

charles.estee@dallascityhall.com

DALLAS CITY ATTORNEY OFFICE

1500 Marilla, 7DN

44

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 53 of 54

Dallas, Texas 75201 214.670.3499 – Telephone 214.670.0622 – Facsimile

ATTORNEYS FOR TEXAS ASSOCIAITON OF HISPANIC COUNTY JUDGES & COUNTY COMMISSIONERS INTERVENORS:

Rolando L. Rios

rrios@rolandorioslaw.com

Law Offices of Rolando L. Rios

115 E. Travis Street, Suite 1645

San Antonio, Texas 78205

210.222.2102 – Telephone

210.222.2898 – Facsimile

ATTORNEYS FOR DEFENDANTS:

Adam Arthur Biggs

adam.biggs@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

300 W. 15th Street

Austin, Texas 78701

512.463.2120 – Telephone

512.320.0667 – Facsimile

Brantley Starr

brantley.starr@oag.texas.gov

Deputy First Assistant Attorney General

William T. Deane

bill.deane@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548, Capital Station

Austin, Texas 78711

512.936.8160 – Telephone

512.936.0545 – Facsimile

Joel Stonedale

joel.stonedale@oag.texas.gov

Andrew D. Leonie, III leonie@texasattorneygeneral.gov

David J. Hacker

david.hacker@oag.texas.gov

David A. Nimocks

austin.nimocks@oag.texas.gov

Joel Stonedale

joel.stonedale@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

209 W. 14th St., 8th Floor

Austin, Texas 78701

512.475.3281 – Telephone

Darren L. McCarty

darren.mccarty@oag.texas.gov

45

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 54 of 54 OFFICE OF TEXAS ATTORNEY GENERAL Executive Administration 240 W. 14th Street, 7th Floor Austin, Texas 78701 512.936.0594 – Telephone 512.936.0545 – Facsimile
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Exh. B

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S.B. No. 4

1

AN ACT

2 relating to the enforcement by campus police departments and

3 certain local governmental entities of state and federal laws

4 governing immigration and to related duties and liability of

5 certain persons in the criminal justice system; providing a civil

6 penalty; creating a criminal offense.

7

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

8 ARTICLE 1. POLICIES OF AND GRANT PROGRAMS FOR LOCAL ENTITIES AND

9

CAMPUS POLICE DEPARTMENTS

10

SECTION 1.01. Chapter 752, Government Code, is amended by

11 adding Subchapter C to read as follows:

12 SUBCHAPTER C. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY

13

LOCAL ENTITIES AND CAMPUS POLICE DEPARTMENTS

14

Sec. 752.051. DEFINITIONS. In this subchapter:

15

(1) "Campus police department" means a law enforcement

16 agency of an institution of higher education.

17

(2) "Immigration laws" means the laws of this state or

18 federal law relating to aliens, immigrants, or immigration,

19 including the federal Immigration and Nationality Act (8 U.S.C.

20 Section 1101 et seq.).

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S.B. No. 4

1 higher education as defined by Section 61.003, Education Code.

2

(4) "Lawful detention" means the detention of an

3 individual by a local entity, state criminal justice agency, or

4 campus police department for the investigation of a criminal

5 offense. The term excludes a detention if the sole reason for the

6 detention is that the individual:

7

(A) is a victim of or witness to a criminal

8 offense; or

9

(B) is reporting a criminal offense.

10

(5) "Local entity" means:

11

(A) the governing body of a municipality, county,

12 or special district or authority, subject to Section 752.052;

13

(B) an officer or employee of or a division,

14 department, or other body that is part of a municipality, county, or

15 special district or authority, including a sheriff, municipal

16 police department, municipal attorney, or county attorney; and

17

(C) a district attorney or criminal district

18 attorney.

19

(6) "Policy" includes a formal, written rule, order,

20 ordinance, or policy and an informal, unwritten policy.

21

Sec. 752.052. APPLICABILITY OF SUBCHAPTER.

(a) This

22 subchapter does not apply to a hospital or hospital district

23 created under Subtitle C or D, Title 4, Health and Safety Code, a

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S.B. No. 4

1 Constitution, to the extent that the hospital or hospital district

2 is providing access to or delivering medical or health care

3 services as required under the following applicable federal or

4 state laws:

5

(1) 42 U.S.C. Section 1395dd;

6

(2) 42 U.S.C. Section 1396b(v);

7

(3) Subchapter C, Chapter 61, Health and Safety Code;

8

(4) Chapter 81, Health and Safety Code; and

9

(5) Section 311.022, Health and Safety Code.

10

(b) Subsection (a) excludes the application of this

11 subchapter to a commissioned peace officer:

12

(1) employed by a hospital or hospital district during

13 the officer ’s employment; or

14

(2) commissioned by a hospital or hospital district.

15

(c) This subchapter does not apply to a commissioned peace

16 officer employed or contracted by a religious organization during

17 the officer ’s employment with the organization or while the officer

18 is performing the contract.

19

(d) This subchapter does not apply to a school district or

20 open-enrollment charter school, including a peace officer employed

21 or contracted by a district or charter school during the officer ’s

22 employment with the district or charter school or while the officer

23 is performing the contract. This subchapter does not apply to the

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S.B. No. 4

1

(e) This subchapter does not apply to the public health

2 department of a local entity.

3

(f) This subchapter does not apply to:

4

(1) a community center as defined by Section 571.003,

5 Health and Safety Code; or

6

(2) a local mental health authority as defined by

7 Section 531.002, Health and Safety Code.

8

Sec. 752.053. POLICIES AND ACTIONS REGARDING IMMIGRATION

9 ENFORCEMENT. (a) A local entity or campus police department may

10 not:

11

(1) adopt, enforce, or endorse a policy under which

12 the entity or department prohibits or materially limits the

13 enforcement of immigration laws;

14

(2) as demonstrated by pattern or practice, prohibit

15 or materially limit the enforcement of immigration laws; or

16

(3) for an entity that is a law enforcement agency or

17 for a department, as demonstrated by pattern or practice,

18 intentionally violate Article 2.251, Code of Criminal Procedure.

19

(b) In compliance with Subsection (a), a local entity or

20 campus police department may not prohibit or materially limit a

21 person who is a commissioned peace officer described by Article

22 2.12, Code of Criminal Procedure, a corrections officer, a booking

23 clerk, a magistrate, or a district attorney, criminal district

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S.B. No. 4

1 under a lawful detention or under arrest;

2

(2) with respect to information relating to the

3 immigration status, lawful or unlawful, of any person under a

4 lawful detention or under arrest, including information regarding

5 the person ’s place of birth:

6

(A) sending the information to or requesting or

7 receiving the information from United States Citizenship and

8 Immigration Services, United States Immigration and Customs

9 Enforcement, or another relevant federal agency;

10

(B) maintaining the information; or

11

(C) exchanging the information with another

12 local entity or campus police department or a federal or state

13 governmental entity;

14

(3) assisting or cooperating with a federal

15 immigration officer as reasonable or necessary, including

16 providing enforcement assistance; or

17

(4) permitting a federal immigration officer to enter

18 and conduct enforcement activities at a jail to enforce federal

19 immigration laws.

20

(c) Notwithstanding Subsection (b)(3), a local entity or

21 campus police department may prohibit persons who are employed by

22 or otherwise under the direction or control of the entity or

23 department from assisting or cooperating with a federal immigration

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S.B. No. 4

1 under the direction or control of the entity or department may not

2 consider race, color, religion, language, or national origin while

3 enforcing immigration laws except to the extent permitted by the

4 United States Constitution or Texas Constitution.

5

Sec. 752.055. COMPLAINT; EQUITABLE RELIEF.

(a) Any

6 citizen residing in the jurisdiction of a local entity or any

7 citizen enrolled at or employed by an institution of higher

8 education may file a complaint with the attorney general if the

9 person asserts facts supporting an allegation that the entity or

10 the institution ’s campus police department has violated Section

11 752.053. The citizen must include a sworn statement with the

12 complaint stating that to the best of the citizen ’s knowledge, all

13 of the facts asserted in the complaint are true and correct.

14

(b) If the attorney general determines that a complaint

15 filed under Subsection (a) against a local entity or campus police

16 department is valid, the attorney general may file a petition for a

17 writ of mandamus or apply for other appropriate equitable relief in

18 a district court in Travis County or in a county in which the

19 principal office of the entity or department is located to compel

20 the entity or department that is suspected of violating Section

21 752.053 to comply with that section.

22

(c) An appeal of a suit brought under Subsection (b) is

23 governed by the procedures for accelerated appeals in civil cases

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S.B. No. 4

1 police department that is found by a court of law as having

2 intentionally violated Section 752.053 is subject to a civil

3 penalty in an amount:

4

(1) not less than $1,000 and not more than $1,500 for

5 the first violation; and

6

(2) not less than $25,000 and not more than $25,500 for

7 each subsequent violation.

8

(b) Each day of a continuing violation of Section 752.053

9 constitutes a separate violation for the civil penalty under this

10 section.

11

(c) The court that hears an action brought under Section

12 752.055 against the local entity or campus police department shall

13 determine the amount of the civil penalty under this section.

14

(d) A civil penalty collected under this section shall be

15 deposited to the credit of the compensation to victims of crime fund

16 established under Subchapter B, Chapter 56, Code of Criminal

17 Procedure.

18

(e) Sovereign immunity of this state and governmental

19 immunity of a county and municipality to suit is waived and

20 abolished to the extent of liability created by this section.

21

Sec. 752.0565. REMOVAL FROM OFFICE. (a) For purposes of

22 Section 66.001, Civil Practice and Remedies Code, a person holding

23 an elective or appointive office of a political subdivision of this

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S.B. No. 4

1 to which Subsection (a) applies if presented with evidence,

2 including evidence of a statement by the public officer,

3 establishing probable grounds that the public officer engaged in

4 conduct described by Subsection (a). The court in which the

5 petition is filed shall give precedence to proceedings relating to

6 the petition in the same manner as provided for an election contest

7 under Section 23.101.

8

(c) If the person against whom an information is filed based

9 on conduct described by Subsection (a) is found guilty as charged,

10 the court shall enter judgment removing the person from office.

11

Sec. 752.057. COMMUNITY OUTREACH POLICY. (a) Each law

12 enforcement agency that is subject to the requirements of this

13 subchapter may adopt a written policy requiring the agency to

14 perform community outreach activities to educate the public that a

15 peace officer may not inquire into the immigration status of a

16 victim of or witness to an alleged criminal offense unless, as

17 provided by Article 2.13, Code of Criminal Procedure, the officer

18 determines that the inquiry is necessary to:

19

(1) investigate the offense; or

20

(2) provide the victim or witness with information

21 about federal visas designed to protect individuals providing

22 assistance to law enforcement.

23

(b) A policy adopted under this section must include

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S.B. No. 4

1

(2) sexual assault, including those receiving

2 services under a sexual assault program, as those terms are defined

3 by Section 420.003.

4

SECTION 1.02. Subchapter A, Chapter 772, Government Code,

5 is amended by adding Section 772.0073 to read as follows:

6

Sec. 772.0073. ENFORCEMENT OF IMMIGRATION LAW GRANT

7 PROGRAM. (a) In this section:

8

(1) "Criminal justice division" means the criminal

9 justice division established under Section 772.006.

10

(2) "Immigration detainer request" means a federal

11 government request to a local entity to maintain temporary custody

12 of an alien, including a United States Department of Homeland

13 Security Form I-247 document or a similar or successor form.

14

(3) "Immigration laws" means the laws of this state or

15 federal law relating to aliens, immigrants, or immigration,

16 including the federal Immigration and Nationality Act (8 U.S.C.

17 Section 1101 et seq.).

18

(4) "Local entity" means a municipality or county.

19

(b) The criminal justice division shall establish and

20 administer a competitive grant program to provide financial

21 assistance to local entities to offset costs related to:

22

(1) enforcing immigration laws; or

23

(2) complying with,

honoring, or

fulfilling

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S.B. No. 4

1

(3) criteria for evaluating grant applications and

2 awarding grants;

3

(4) guidelines related to grant amounts; and

4

(5) procedures for monitoring the use of a grant

5 awarded under this section and ensuring compliance with any

6 conditions of the grant.

7

(d) The criminal justice division may use any revenue

8 available for purposes of this section.

9

ARTICLE 2. DUTIES OF LAW ENFORCEMENT AGENCIES AND JUDGES

10

SECTION 2.01. Chapter 2, Code of Criminal Procedure, is

11 amended by adding Article 2.251 to read as follows:

12

Art. 2.251. DUTIES RELATED TO IMMIGRATION DETAINER

13 REQUESTS. (a) A law enforcement agency that has custody of a

14 person subject to an immigration detainer request issued by United

15 States Immigration and Customs Enforcement shall:

16

(1) comply with, honor, and fulfill any request made

17 in the detainer request provided by the federal government; and

18

(2) inform the person that the person is being held

19 pursuant to an immigration detainer request issued by United States

20 Immigration and Customs Enforcement.

21

(b) A law enforcement agency is not required to perform a

22 duty imposed by Subsection (a) with respect to a person who has

23 provided proof that the person is a citizen of the United States or

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S.B. No. 4

1 amended by adding Article 42.039 to read as follows:

2

Art. 42.039. COMPLETION OF SENTENCE IN FEDERAL CUSTODY.

3 (a) This article applies only to a criminal case in which:

4

(1) the judgment requires the defendant to be confined

5 in a secure correctional facility; and

6

(2) the defendant is subject to an immigration

7 detainer request.

8

(b) In a criminal case described by Subsection (a), the

9 judge shall, at the time of pronouncement of a sentence of

10 confinement, issue an order requiring the secure correctional

11 facility in which the defendant is to be confined and all

12 appropriate government officers, including a sheriff, a warden, or

13 members of the Board of Pardons and Paroles, as appropriate, to

14 require the defendant to serve in federal custody the final portion

15 of the defendant ’s sentence, not to exceed a period of seven days,

16 following the facility ’s or officer ’s determination that the change

17 in the place of confinement will facilitate the seamless transfer

18 of the defendant into federal custody. In the absence of an order

19 issued under this subsection, a facility or officer acting under

20 exigent circumstances may perform the transfer after making the

21 determination described by this subsection.

This subsection

22 applies only if appropriate officers of the federal government

23 consent to the transfer of the defendant into federal custody under

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S.B. No. 4

1 soon as the information becomes available.

The judge retains

2 jurisdiction for the purpose of issuing an order under this

3 article.

4

(d) For purposes of this article, "secure correctional

5 facility" has the meaning assigned by Section 1.07, Penal Code.

6

ARTICLE 3. DEFENSE OF LOCAL ENTITIES BY ATTORNEY GENERAL

7

SECTION 3.01. Subchapter B, Chapter 402, Government Code,

8 is amended by adding Section 402.0241 to read as follows:

9

Sec. 402.0241. DEFENSE OF LOCAL ENTITIES IN SUITS RELATED

10 TO IMMIGRATION DETAINER REQUESTS. (a) In this section, "local

11 entity" has the meaning assigned by Section 752.051.

12

(b) The attorney general shall defend a local entity in any

13 action in any court if:

14

(1) the executive head or governing body, as

15 applicable, of the local entity requests the attorney general ’s

16 assistance in the defense; and

17

(2) the attorney general determines that the cause of

18 action arises out of a claim involving the local entity ’s

19 good-faith compliance with an immigration detainer request

20 required by Article 2.251, Code of Criminal Procedure.

21

(c) If the attorney general defends a local entity under

22 Subsection (b), the state is liable for the expenses, costs,

23 judgment, or settlement of the claims arising out of the

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S.B. No. 4

1 general under Subsection (b).

2

ARTICLE 4. SURETY BOND

3

SECTION 4.01. Article 17.16, Code of Criminal Procedure, is

4 amended by amending Subsection (a) and adding Subsection (a-1) to

5 read as follows:

6

(a) A surety may before forfeiture relieve the surety of the

7 surety ’s undertaking by:

8

(1) surrendering the accused into the custody of the

9 sheriff of the county where the prosecution is pending; or

10

(2) delivering to the sheriff of the county in which

11 the prosecution is pending and to the office of the prosecuting

12 attorney an affidavit stating that the accused is incarcerated in:

13 (A)

federal

custody, subject to Subsection

14 (a-1);

15

(B) [in] the custody of any state;[,] or

16

(C) [in] any county of this state.

17

(a-1) For purposes of Subsection (a)(2), the surety may not

18 be relieved of the surety ’s undertaking if the accused is in federal

19 custody to determine whether the accused is lawfully present in the

20 United States.

21

ARTICLE 5. PROHIBITED CONDUCT BY SHERIFF OR CONSTABLE

22

SECTION 5.01. Section 87.031, Local Government Code, is

23 amended by adding Subsection (c) to read as follows:

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S.B. No. 4

1 Section 39.07 to read as follows:

2

Sec. 39.07. FAILURE TO COMPLY WITH IMMIGRATION DETAINER

3 REQUEST. (a) A person who is a sheriff, chief of police, or

4 constable or a person who otherwise has primary authority for

5 administering a jail commits an offense if the person:

6

(1) has custody of a person subject to an immigration

7 detainer request issued by United States Immigration and Customs

8 Enforcement; and

9

(2) knowingly fails to comply with the detainer

10 request.

11

(b) An offense under this section is a Class A misdemeanor.

12

(c) It is an exception to the application of this section

13 that the person who was subject to an immigration detainer request

14 described by Subsection (a)(1) had provided proof that the person

15 is a citizen of the United States or that the person has lawful

16 immigration status in the United States, such as a Texas driver ’s

17 license or similar government-issued identification.

18

ARTICLE 6. INQUIRY BY PEACE OFFICER REGARDING IMMIGRATION OR

19

NATIONALITY OF CRIME VICTIM OR WITNESS

20

SECTION 6.01. Article 2.13, Code of Criminal Procedure, is

21 amended by adding Subsections (d) and (e) to read as follows:

22

(d) Subject to Subsection (e), in the course of

23 investigating an alleged criminal offense, a peace officer may

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S.B. No. 4

1

(2) provide the victim or witness with information

2 about federal visas designed to protect individuals providing

3 assistance to law enforcement.

4

(e) Subsection (d) does not prevent a peace officer from:

5

(1) conducting a separate investigation of any other

6 alleged criminal offense; or

7

(2) inquiring as to the nationality or immigration

8 status of a victim of or witness to a criminal offense if the

9 officer has probable cause to believe that the victim or witness has

10 engaged in specific conduct constituting a separate criminal

11 offense.

12

ARTICLE 7. SEVERABILITY AND EFFECTIVE DATE

13

SECTION 7.01. It is the intent of the legislature that every

14 provision, section, subsection, sentence, clause, phrase, or word

15 in this Act, and every application of the provisions in this Act to

16 each person or entity, are severable from each other. If any

17 application of any provision in this Act to any person, group of

18 persons, or circumstances is found by a court to be invalid for any

19 reason, the remaining applications of that provision to all other

20 persons and circumstances shall be severed and may not be affected.

21

SECTION 7.02. This Act takes effect immediately if it

22 receives a vote of two-thirds of all the members elected to each

23 house, as provided by Section 39, Article III, Texas Constitution.

Case 5:17-cv-00404-OLG Document 150-2 Filed 07/10/17 Page 17 of 17

S.B. No. 4

President of the Senate

Speaker of the House

I hereby certify that S.B. No. 4 passed the Senate on

February 8, 2017, by the following vote: Yeas 20, Nays 10; and that

the Senate concurred in House amendments on May 3, 2017, by the

following vote: Yeas 20, Nays 11.

Secretary of the Senate I hereby certify that S.B. No. 4 passed the House, with amendments, on April 27, 2017, by the following vote: Yeas 94, Nays 53, one present not voting.

Approved: Date

Chief Clerk of the House

Governor

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 1 of 6
Exh. C

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 2 of 6
§ 1357. Powers of immigration officers and employees, 8 USCA § 1357
KeyCite Yellow Flag - Negative Treatment Proposed Legislation
United States Code Annotated Title 8. Aliens and Nationality (Refs & Annos) Chapter 12. Immigration and Nationality (Refs & Annos) Subchapter II. Immigration Part IX. Miscellaneous 8 U.S.C.A. § 1357 § 1357. Powers of immigration officers and employees Effective: August 12, 2006
Currentness
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant--
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 3 of 6
§ 1357. Powers of immigration officers and employees, 8 USCA § 1357
(5) to make arrests--
(A) for any offense against the United States, if the offense is committed in the officer’s or employee’s presence,or
(B) for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony,
if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.
(b) Administration of oath; taking of evidence
Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this chapter and the administration of the Service; and any person to whom such oath has been administered, (or who has executed an unsworn declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of Title 28) under the provisions of this chapter, who shall knowingly or willfully give false evidence or swear (or subscribe under penalty of perjury as permitted under section 1746 of Title 28) to any false statement concerning any matter referred to in this subsection shall be guilty of perjury and shall be punished as provided by section 1621 of Title 18.
(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 4 of 6
§ 1357. Powers of immigration officers and employees, 8 USCA § 1357
(d) Detainer of aliens for violation of controlled substances laws In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law rel ating to controlled substances, if the official (or another official)--
(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien, the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.
(e) Restriction on warrantless entry in case of outdoor agricultural operations Notwithstanding any other provision of this section other than paragraph (3) of subsection (a), an officer or employee of the Service may not enter without the consent of the owner (or agent thereof) or a properly executed warrant onto the premises of a farm or other outdoor agricultural operation for the purpose of interrogating a person believed to be an alien as to the person’s right to be or to remain in the United States.
(f) Fingerprinting and photographing of certain aliens
(1) Under regulations of the Attorney General, the Commissioner shall provide for the fingerprinting and photographing of each alien 14 years of age or older against whom a proceeding is commenced under section 1229a of this title.
(2) Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies, upon request.
(g) Performance of immigration officer functions by State officers and employees

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 5 of 6
§ 1357. Powers of immigration officers and employees, 8 USCA § 1357
(1) Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.
(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.
(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an

Case 5:17-cv-00404-OLG Document 150-3 Filed 07/10/17 Page 6 of 6
§ 1357. Powers of immigration officers and employees, 8 USCA § 1357
agreement with the Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State--
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
(h) Protecting abused juveniles
An alien described in section 1101(a)(27)(J) of this title who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 1101(a)(27)(J)(iii)(I) of this title.
CREDIT(S) (June 27, 1952, c. 477, Title II, ch. 9, § 287, 66 Stat. 233; Pub.L. 94-550, § 7, Oct. 18, 1976, 90 Stat. 2535; Pub.L. 99-570, Title I, § 1751(d), Oct. 27, 1986, 100 Stat. 3207-47; Pub.L. 99-603, Title I, § 116, Nov. 6, 1986, 100 Stat. 3384; Pub.L. 100-525, §§ 2(e), 5, Oct. 24, 1988, 102 Stat. 2610, 2615; Pub.L. 101-649, Title V, § 503(a), (b)(1), Nov. 29, 1990, 104 Stat. 5048, 5049; Pub.L. 102-232, Title III, § 306(a)(3), Dec. 12, 1991, 105 Stat. 1751; Pub.L. 104-208, Div. C, Title I, § 133, Title III, § 308(d)(4)(L), (e)(1)(M), (g)(5)(A)(i), Sept. 30, 1996, 110 Stat. 3009-563, 3009-618, 3009-619, 3009-623; Pub.L. 109-162, Title VIII, § 826, Jan. 5, 2006, 119 Stat. 3065; Pub.L. 109-271, § 6(g), Aug. 12, 2006, 120 Stat. 763.)
Notes of Decisions (311)

8 U.S.C.A. § 1357, 8 USCA § 1357 Current through P.L. 115-40. Also includes P.L. 115-42 and 115-43. Title 26 current through 115-43.

End of Document

© 2017 Thomson Reuters. No claim to original U.S. GovernmentWorks.

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Exh. D

Case 5:17-cv-00404-OLG Document 150-4 Filed 07/10/17 Page 2 of 16
U.S. Department of Homeland Security Washington, DC 20528
GUIDANCE ON STATE AND LOCAL GOVERNMENTS’ ASSISTANCE IN IMMIGRATION ENFORCEMENT AND RELATED MATTERS
Summary
The Department of Homeland Security (DHS) provides this guidance on assistance furnished by state and local law enforcement officers to DHS in its enforcement of the Nation’s immigration laws. This guidance primarily concerns assistance by such officers in the enforcement of the civil provisions of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq., specifically, cooperation in the identification, apprehension, detention, and removal of aliens who are unlawfully present. In light of laws passed by several states addressing the involvement by state and local law enforcement officers in federal enforcement of immigration laws, DHS concluded that this guidance would be appropriate to set forth DHS’s position on the proper role of state and local officers in this context.
DHS has long viewed state and local governments as valuable partners that can serve a helpful role in assisting DHS in fulfilling its responsibilities with respect to immigration enforcement. DHS continues to welcome that participation and does not intend by this guidance to disturb the longstanding pattern of cooperation on a day-to-day basis with state and local law enforcement agencies. For a state or local government to act systematically1 on a matter that affects immigration enforcement, however, that action has to be consistent with the comprehensive regulatory regime of the INA, which requires such state enforcement efforts to constitute cooperation, and therefore also requires such efforts to be responsive to the policies and priorities set by DHS.
This guidance first sets out general legal principles that govern the respective roles of the Federal Government and the states in immigration matters. It then discusses the specific provisions of the INA that address the manner in which state and local officers may assist DHS in immigration enforcement. The guidance explains that systematic state or local government actions will conflict with the INA with respect to the identification, apprehension, detention, and removal of aliens if state or local law enforcement officers do not act in accordance either with a statutory provision or agreement with DHS providing them with express authority for their actions, or with 8 U.S.C. § 1357(g)(10)(B), which authorizes state and local governments to “cooperate with the [Secretary of Homeland Security] in the identification, apprehension,
1 In referring to “systematic” actions of state and local governments, we mean regular or repeated activity that is undertaken pursuant to or consistent with some governing principles or standards, whether formal or informal—such as state or local laws, written or unwritten agency policy, training guidelines, or standard operating procedures. The term “systematic” is intended to be in contrast with occasional, sporadic, or irregular activity that may happen from time to time in an official’s discretion or as the need arises in the course of an official’s regular duties.
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detention, or removal of aliens not lawfully present in the United States” (emphasis added). Under that provision, a state or local government’s action must constitute genuine cooperation with DHS to avoid infringing on the Federal Government’s authority. Applying that basic requirement, the guidance provides non-exhaustive lists of examples of state and local government actions related to immigration enforcement that are permissible and examples that would infringe on the Federal Government’s authorities and discretion.2
I. GENERAL LEGAL PRINCIPLES
A. Responsibilities of the Federal Government over Immigration
Congress’s power over immigration and naturalization derives from the U.S. Constitution’s Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, related constitutional authorities concerning foreign relations, and its power to “establish an uniform Rule of Naturalization.” U.S. Const. Art. I, § 8, cl. 4. Authority to regulate immigration and matters concerning aliens in or seeking to enter the United States is vested with the Federal Government. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982); De Canas v. Bica, 424 U.S. 351, 354 (1976). Control of immigration is a “fundamental sovereign attribute.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). As the Supreme Court has explained, the Nation’s immigration policy “is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power,” and “so exclusively entrusted to the political branches” of the National Government as “to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1962).
The primary means by which the Federal Government exercises this authority is through the INA, which is a comprehensive statute that addresses virtually all matters related to immigration.3 See Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011) (the INA “established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country’” (quoting De Canas, 424 U.S. at 353, 359)); Elkins v. Moreno, 435 U.S. 647, 664 (1978) (describing the INA “as a comprehensive and complete code covering all aspects of admission of aliens to this country”).
2 Given its statutory and regulatory authority over immigration and naturalization matters, as well as its longstanding experience and expertise in enforcing the Nation’s immigration laws, DHS is uniquely situated to interpret the INA and determine what actions assist and what actions undermine its efforts. DHS accordingly issues this memorandum pursuant to the Secretary’s authority to issue such instructions and to take such other actions as she deems necessary for carrying out her authority in the enforcement of laws relating to the immigration and naturalization of aliens. 8 U.S.C. § 1103(a)(3).
3 This is not to suggest that the INA is the only statute by which the Federal Government has exercised its authority to regulate immigration or matters concerning aliens. Various other federal statutes address discrete aspects related to aliens and immigration. Although the focus of this guidance is on the INA because it is the primary statute in this field, the background principles discussed in this introduction are equally applicable to other federal laws that concern aliens and immigration. Cf. 8 U.S.C. § 1101(a)(17) (defining the term “immigration laws” as including the INA “and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens”).
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The INA allocates various responsibilities for its implementation and enforcement to the President and a number of Executive Branch officials, including the Secretary of Homeland Security, the Attorney General, and the Secretary of State. See 8 U.S.C. § 1103(a)(1); Sale v. Haitian Centers Council, Inc., 508 U.S. 155, 171-72 (1993) (noting, in a pre-DHS case, distribution of authority under the INA to various federal officials). The Secretary of Homeland Security is responsible, among other duties, for enforcing the civil provisions of the INA, including those involving the investigation, arrest, and detention of aliens who are subject to removal; for instituting and prosecuting removal proceedings before the Department of Justice’s Executive Office for Immigration Review (EOIR); for the actual removal of aliens; for developing and implementing national immigration policies and priorities; and for assisting the Attorney General in enforcing the criminal provisions of the INA. See 8 U.S.C. § 1103(a)(1); see also 6 U.S.C. §§ 202(5) (providing DHS with the authority to “establish[] national immigration enforcement policies and priorities”); 271(a)(3)(D) (providing DHS with the authority to “establish national immigration services policies and priorities”).
The INA’s text and underlying congressional intent reveal a complex and multi-faceted set of objectives relating to various aspects of the immigration and naturalization system. The Federal Government has not adopted a one-dimensional focus in which the sole considerations for those who violate restrictions related to the entry and presence of aliens are removal, sanctions, or both. To be sure, removal and sanctions are significant elements of the purposes and objectives as defined by Congress and DHS. See, e.g., 8 U.S.C. §§ 1182(a)(6)(A) (providing ground of removability for aliens who are present in the United States without being admitted or paroled); 1227(a)(1)(B) (providing ground of removability for aliens who are present in the United States in violation of law after being admitted); 1325 (providing criminal prohibition for aliens entering or attempting to enter the United States in violation of law). But these ends are to be pursued consistently and simultaneously with several others. For example, the Federal Government seeks to be welcoming to those aliens who are in the United States legally and to protect them from undue harassment. See Hines v. Davidowitz, 312 U.S. 52, 73 (1941). Even for those aliens present in the United States without lawful immigration status, the Federal Government has extended various humanitarian protections. See, e.g., 8 U.S.C. §§ 1158 (asylum); 1254a (temporary protected status); 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure family unity); 1229b(b) (cancellation of removal); 1182(d)(5) (parole); 1101(a)(15)(T) (visas for certain victims of human trafficking); and 1101(a)(15)(U) (visas for certain victims of criminal activity who have suffered substantial physical or mental abuse). In its administration and enforcement of the INA, DHS also may properly consider issues of foreign relations, as well as the potential impact of certain enforcement techniques or initiatives on citizens and lawfully present aliens or on federal, state, and local law enforcement efforts under other laws. DHS’s administration and enforcement of the INA necessarily reflect and embody these multiple and sometimes competing goals. Moreover, DHS must act within the constraints of limited resources and therefore must carefully prioritize its efforts in order to carry out its mandate.4
4 See, e.g., Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, titled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, titled “Civil Immigration
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Whenever authority to enforce any Act of Congress is assigned to officers of the Executive Branch, the responsible officers are understood to be vested with broad and presumptively unreviewable discretion in deciding whether and how to enforce the Act in given circumstances. That is true whether the agency is invoking criminal, civil, or administrative process. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). The Supreme Court has recognized that prosecutorial discretion is especially important in the immigration enforcement context. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 489 (1999) (observing that prosecutorial discretion has long been “a special province of the Executive,” and finding that the considerations underlying such prerogative “are greatly magnified in the deportation context”); see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (noting that discretion is essential in the administration of the immigration laws, as “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program”); Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 52224 (BIA 2011) (discussing the broad authority DHS has in exercising its prosecutorial discretion in initiating removal proceedings). By charging DHS with primary responsibility for enforcement of federal immigration laws, Congress intended for DHS to use its expertise in calibrating its actions so as to ensure the varied and sometimes competing objectives involved in immigration are appropriately balanced.
Consistent with the broad range of enforcement discretion infused in the INA, U.S. Immigration and Customs Enforcement (ICE) agents and officers, U.S. Customs and Border Protection (CBP) agents and officers, and U.S. Citizenship and Immigration Services (USCIS) officers appropriately exercise discretion in their daily activities in the field. DHS agents, officers, and attorneys also exercise discretion in deciding whether to institute charges against an alien or what charges to bring, whether to oppose applications for discretionary relief, and whether and when to execute a removal order. These and other exercises of discretion by ICE, CBP, and USCIS agents and officers are, of course, subject to the supervision and control of superior DHS officials and, ultimately, the Secretary.
B. General Principles Governing Assistance by State and Local Officers in Immigration Enforcement
DHS has long viewed state and local governments as valuable partners that can provide meaningful assistance to DHS with respect to immigration matters. Although only the Federal Government may establish national immigration policy and the comprehensive schemes for administering and enforcing that policy, state and local governments undoubtedly have legitimate interests in certain matters concerning aliens and retain, under their reserved powers, some authority to act on certain matters that may affect aliens and immigration. See De Canas, 424 U.S. at 355 (acknowledging that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by [the Federal Government’s] constitutional power, whether latent or exercised.”). State governments do not have authority, however, to directly regulate aliens and immigration, id. at 358, such as by determining which
Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Mar. 2, 2011), available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.
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aliens may be admitted to the United States or by setting the terms and conditions under which those aliens may remain. Moreover, state and local governments must be careful to ensure that their actions do not infringe upon the comprehensive regulatory regime of the INA. For a state or local government to act on a matter that affects aliens and immigration, that action cannot interfere with the Federal Government’s authority to administer the INA.
The Constitution assigns responsibility for the regulation of immigration to the National Government because it concerns not a single state, but an aspect of the external relations of the Nation as a whole—in particular, the admission and treatment in the United States of the citizens or subjects of other nations. As with other matters concerning the Nation’s external relations, the actions of “a single State” “can, at her pleasure, embroil us in disastrous quarrels with other nations.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1875). For “[e]xperience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.” Hines, 312 U.S. at 64. Reflecting these sensitivities, states also may not effect the “[l]egal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens” or those believed to be aliens. Id. at 65-66.
Under the Supremacy Clause of the U.S. Constitution, U.S. Const. Art. VI, cl. 2, the judgments of the Federal Government in the execution of federal law must prevail over those of the states. See City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (finding that two governments “cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system. . . . The potential for deadlock . . . inheres in dual sovereignties, but the Constitution has resolved that problem in the Supremacy Clause . . . .”). Accordingly, to the extent that state or local involvement in a federal area is appropriate, such involvement must be consistently cooperative with federal efforts. In fact, in the long experience of DHS (and the Immigration and Naturalization Service before it), the on-the-ground assistance rendered by state and local governments to federal immigration enforcement officers has often been of this cooperative nature, with the former deferring to federal officers in deciding whether or how to proceed under the INA in particular cases or with respect to particular aliens when questions arise. That relationship is also reflected in the formation of task forces that include DHS officers and state and local law enforcement officers, such as Border Enforcement Security Task Forces (BESTs). It is also found in more informal, flexible interactions where state and local law enforcement assist federal authorities in issues related to immigration enforcement that arise through their routine local law enforcement duties. Where state and local officers and DHS officers work closely together, often along the U.S. border, state and local officers are responsive to the requests, needs, and guidance of the federal agency.5
5 The Federal Government may, at times, take a secondary, supporting role to a state enforcement effort that is primarily aimed at enforcing state law. State and local law enforcement officers may seek assistance in a state-led operation aimed at carrying out a state’s own police powers, but request DHS assistance based on the knowledge that they may encounter an immigration issue in the course of that operation. Where DHS assists in these situations, DHS may take a secondary role in the overall operation, but the primary and lead role on any federal immigration issues encountered in the course of the operation.
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As explained below, these principles regarding the relationship between DHS and state and local officers in the enforcement of federal immigration law are embodied in the INA itself.
II. INA PROVISIONS SPECIFICALLY GOVERNING SYSTEMATIC ASSISTANCE BY STATE AND LOCAL OFFICERS
As noted above, DHS has long viewed state and local governments as valuable partners that can provide meaningful assistance to DHS in fulfilling its responsibilities with respect to enforcing the immigration laws. Those governments, however, must be careful to ensure that their actions do not infringe upon the comprehensive regulatory regime of the INA, including its vesting of enforcement authority and discretion in the Secretary, or upon the Federal Government’s constitutional authority over foreign affairs. That is especially true with respect to the identification, apprehension, detention, and removal of aliens not lawfully present in the United States.6
A. The General Statutory Framework Governing Assistance by State and Local Officers and Employees
The basic premises of the relationship between federal officials and state and local law enforcement officers are embodied in federal law, which identifies and defines the role of state and local officers who assist federal officers in the identification, apprehension, detention, and removal of aliens under the INA. Congress has explicitly authorized state and local law enforcement officers to participate in enforcement actions in specified circumstances. See, e.g., 8 U.S.C. §§ 1324(c) (providing that arrests for violation of the INA’s criminal prohibitions against smuggling, transporting or harboring aliens may be made not only by federal immigration officers, but also by “all other officers whose duty it is to enforce criminal laws”); 1252c (authorizing state and local law enforcement officials to arrest aliens who are unlawfully present in the United States and were previously removed after being convicted of a felony but only if they have confirmed the status of such aliens with ICE); 1103(a)(10) (granting power to DHS to authorize state and local law enforcement officers, when an “actual or imminent mass influx of aliens . . . presents urgent circumstances requiring an immediate Federal response,” to perform functions of federal immigration officers). Outside of such specific authorizations, 8 U.S.C. § 1357(g), entitled “Performance of immigration officer functions by State officers and employees,” recognizes two additional avenues for state and local law enforcement officers to provide assistance to federal officials in enforcing the INA and identifies the permissible contours of that assistance.7
First, 8 U.S.C. § 1357(g) allows DHS to enter into a written agreement with a state or a
6 As the focus of this guidance is on state government actions related to the enforcement of restrictions imposed by the Federal Government on which aliens may enter the United States and the conditions under which aliens are permitted to remain, we do not address provisions in federal law concerning the authority of state governments to take actions relating to the grant or denial of certain benefits, services, or privileges to particular classes of aliens.
7 In addition to authorizing cooperation between state and local law enforcement and federal officials on immigration enforcement, Congress has also specifically prohibited state or local governments from restricting communication with the Federal Government regarding immigration status of individuals. See 8 U.S.C. §§ 1373(a)-(b); 1644.
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political subdivision, to enlist its voluntary assistance in the performance of various tasks relating to the “investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). Where this process is utilized, the state or political subdivision’s officers’ activities are limited both by the terms of the agreement—a so-called “287(g) Agreement”—and by the INA itself, which, among other conditions, requires that the state and local law enforcement officers who are conducting immigration enforcement operations are “qualified to perform a function of an immigration officer,” have “knowledge of, and adhere to, Federal law relating to the function,” and “have received adequate training regarding the enforcement of relevant Federal immigration laws.” 8 U.S.C. § 1357(g)(1) and (2). Just as critically, all functions performed under a 287(g) Agreement “shall be subject to the direction and supervision of the [Secretary].” 8 U.S.C. § 1357(g)(3). Exercising its authority under subsection 1357(g), DHS has entered into cooperative agreements with more than 60 state and local law enforcement agencies to allow appropriately trained and supervised state and local officers to perform enumerated immigration-related functions. These agreements have been designed to ensure that those officers exercise immigration enforcement authority in a manner that is consistent with the multifaceted federal objectives and priorities, and do so under federal supervision to preserve the flexibility and discretion called for under federal law.
Second, paragraph (10) of subsection 1357(g) allows state and local officers to participate in certain aspects of the enforcement of immigration laws outside of a formal written agreement, through formal or informal “cooperat[ion] with the [Secretary].” Paragraph (10) states:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State -- (A) to communicate with the [Secretary] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
As contemplated by this provision, DHS has invited and accepted the assistance of state and local law enforcement personnel in a variety of contexts that lie outside of the written agreements provided for by paragraphs (1) - (9) of subsection 1357(g), such as through BESTs, the Criminal Alien Program, Fugitive Operations Task Forces, and Operation Community Shield. Moreover, state and local law enforcement officers render assistance to DHS on a caseby-case basis as immigration matters come to their attention in the performance of their regular duties under state or local law.
Through these and other cooperative arrangements, state and local governments have been able to assist DHS in a manner that conforms to DHS’s balanced administration of a complex immigration scheme and that is consistent with DHS’s specific priorities and approach. In the next section, this memorandum elaborates upon the meaning of this requirement for state and local officers and employees to “cooperate” with the Secretary.
B. Interpretation of “Cooperate”
Under the INA, an officer or employee of a state or political subdivision of a state may,
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without a written agreement with the Department, “cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(B). The term “cooperate” is not defined in Section 1357, but the content of the term follows from federal primacy in the administration and enforcement of the immigration laws and from the text and overall structure of the INA. Based on those sources, the Department interprets the term “cooperate” in subparagraph 1357(g)(10)(B) to mean the rendering of assistance by state and local officers to federal officials, in the latter officials’ enforcement of the INA, in a manner that maintains the ability to conform to the policies and priorities of DHS and that ensures that individual state and local officers are at all times in a position to be—and, when requested, are in fact—responsive to the direction and guidance of federal officials charged with implementing and enforcing the immigration laws.
1. Cooperation Requires Federal Primacy in Immigration Enforcement
Consistent with the Constitution’s vesting of authority over immigration policy and regulation with the Federal Government and Congress’s vesting of enforcement authority and discretion with the Secretary, DHS must have exclusive authority to set enforcement priorities and to determine how best to allocate DHS’s resources. Federal primacy also requires that DHS be able to effectuate the enforcement discretion that the INA vests in the Secretary, and that state and local law enforcement officers systematically assisting DHS in enforcing the INA be in a position to conform to and effectuate that discretion as well. The INA’s “cooperation” requirement means that a state or local government may not adopt its own mandatory set of directives to implement the state’s own enforcement policies, because such a mandate would serve as an obstacle to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances require. State or local laws or actions that are not responsive to federal control or direction, or categorically demand enforcement in such a way as to deprive the Federal Government—and state and local officers— of the flexibility and discretion that animates the Federal Government’s ability to globally supervise immigration enforcement, do not constitute the requisite “cooperation” within the meaning of 8 U.S.C. § 1357(g)(10)(B), even if the state or local government’s own purpose is to enforce federal immigration law.
Against this backdrop, for state and local law enforcement officers to “cooperate” with the Secretary (within the meaning of 8 U.S.C. § 1357(g)(10)(B)) in rendering assistance to DHS officers, those officers must at all times be in a position to be—and, when requested, must in fact be—responsive to federal enforcement discretion, and their assistance must be rendered within any parameters set by DHS so that DHS can exercise control over enforcement and has the flexibility to respond to changing considerations.
2. The INA Confirms that Where a State or Local Government Would Participate Systematically in the Identification, Apprehension, Detention, or Removal of Aliens, the State or Local Action Must Be Responsive to Federal Direction
The text of the statute makes clear that state and local governments may not adopt and implement their own enforcement programs based on their own assessment of what is
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appropriate for administering the INA, separate and apart from what the Secretary has established and oversees. Thus, 8 U.S.C. § 1357(g)(10)(B) refers to the states cooperating “with the [Secretary]” (emphasis added), the federal officer charged by Congress with the administration of the INA.
The requirement of some measure of federal control is also confirmed by paragraph 1357(g)(10)’s reference to “cooperat[ion]” in the “removal” of aliens not lawfully present. It is clear that state and local officers have no authority to remove an alien from the United States, or to institute or conduct proceedings to that end. Inclusion of this function as part of the four-step enforcement process described in paragraph (10) of Section 1357(g) signifies that nature of “cooperation” that is required with respect to the process as a whole—with the Secretary having the leading and primary role.
This interpretation of “cooperate” is further confirmed by considering the statutory context in which the word “cooperate” appears, as well as the constitutional background against which the INA was enacted (wherein, as explained above, the Federal Government and not the states is assigned responsibility over immigration policy and foreign affairs). Subparagraph 1357(g)(10)(B) concerns cooperation by state and local officers in the “identification, apprehension, detention, [and] removal of aliens not lawfully present in the United States.” But this provision is part of a broader statutory scheme that balances this function (i.e., removal of aliens not lawfully present) against numerous complementary or even competing aims, as noted above. When DHS acts to enforce restrictions related to the entry of aliens, it does so respecting these complementary and competing aims. The United States has ongoing relationships with foreign nations and is mindful as to how it exercises its immigration authority because of the potential consequences for those relationships, and because of the potential for foreign governments to take reciprocal or retaliatory measures against U.S. nationals abroad. State and local officers must retain the requisite freedom to conform to the discretion of federal authorities, so that they do not take actions that frustrate federal objectives and discretion and that any actions they do take are consistent with applicable conditions under federal law, regulations, and procedures.
In requiring “cooperation,” the INA thus requires that a state or local law enforcement officer who assists DHS officers in their enforcement of the immigration laws must at all times have the freedom to adapt to federal priorities and direction and conform to federal discretion, rather than being subject to systematic mandatory state or local directives that may work at odds with DHS. Although a similar lack of receptiveness to federal priorities might pervade even a system that gives officers discretion, any such state or local government-directed mandate would necessarily function as a parallel or contradictory direction, in competition with the Secretary’s direction, as to how to enforce immigration law, thereby eroding the federal government’s exclusive authority over immigration enforcement. Where inconsistent with federal priorities, a mandatory directive would force the Federal Government to divert resources away from the enforcement priorities it has set. Even if a state or local mandatory directive matches the federal priorities in place at the time of adoption, federal priorities and the manner in which they are applied can, and do, change. In fact, over the past two years, the federal immigration
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enforcement priorities and the manner in which they are applied have been significantly revised.8 While any mandatory scheme raises these concerns, they are particularly pressing where state or local mandates are codified because such codified laws are by their nature more difficult to adjust to respond to changing priorities of the Federal Government.
3. Cooperation is Not Limited to a Particular Form
The Federal Government may work with state and local governments in various ways, as it currently does, so their participation is not restricted to a particular form. The federal oversight role may range from express, direct involvement—such as DHS officers participating in a joint task force with state and local law enforcement officers—to implied, indirect involvement—such as DHS officers sharing information or general advice and guidance with state and local law enforcement officers. The “cooperation” requirement, however, does not necessarily require ex ante permission from the Federal Government for state and local law enforcement personnel to assist in immigration enforcement. Paragraph 1357(g)(10) recognizes that formal authorization is not required before every instance of such cooperation. And the INA’s requirement that the assistance rendered by state and local officers be cooperative or responsive to federal priorities and exercise of discretion likewise does not require affirmative authorization in advance or federal involvement in every single act of assistance. DHS may choose to confine its role simply to establishing a general program under which a state or local officers may act repeatedly in a manner that is consistent with that program and with the policy or direction set by the Federal Government as it relates to the program. And DHS may elect to invite and accept—as it traditionally has—individual instances of assistance by state and local officers that arise out of the performance of their regular duties under state and local law.
But to constitute genuine cooperation as contemplated by 8 U.S.C. § 1357(g)(10), state or local governments must not systematically act in a way that conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate. States may not act with the aim or effect of altering the Federal Government’s prioritization or balancing of different goals—such as by effectively compelling the Federal Government to address certain ends or by furthering those ends while disregarding others, or by attempting to frustrate the Federal Government’s accomplishment of one end to advance other ends. In other words, when states attempt to act in the immigration arena, their actions cannot disrupt or interfere with the Federal Government’s pursuit of its multiple, interrelated goals. Rather, for those actions to qualify as cooperation, they must assist the Federal Government in accomplishing its goals.
8 See, e.g., Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, titled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, titled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Mar. 2, 2011), available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.
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4. Communication with the Federal Government About Immigration Status
The provisions of the INA addressing communications by state and local officers with DHS are consistent with and reinforce the foregoing interpretation of “cooperate.” Communications between state and local officers and the Secretary regarding the immigration status of an individual are addressed by both 8 U.S.C. § 1357(g)(10)(A) and 8 U.S.C. § 1373. State and local actions pursuant to these provisions that are taken in connection with assisting DHS in enforcement of federal immigration laws—and specifically, in connection with assisting DHS in the identification, apprehension, detention, or removal of unlawfully present aliens—as distinguished from the state or local government’s own purposes, must, like actions taken pursuant to 8 U.S.C. § 1357(g)(10)(B), be done in “cooperation” with the Secretary. Neither provision gives state or local officials authority to use these communications in a systematic manner for the investigation and apprehension of aliens in ways that are not coordinated with and responsive to federal priorities and discretion.
Subparagraph (10)(A) of subsection 1357(g) permits state and local officers “to communicate with the [Secretary] regarding the immigration status of an individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” This provision must be read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for state and local officers to “otherwise cooperate” with the Secretary, without a written agreement. Because the INA thus deems communications referred to in subparagraph (A) to be another form of “cooperation” of the sort referred to in subparagraph (B), the interpretation of “cooperate” set forth above applies equally to communications by state and local officers on immigration status (made pursuant to subparagraph 1357(g)(10)(A)) as it does to other state and local efforts to participate “in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States” (pursuant to subparagraph 1357(g)(10)(B)).
Section 1373 recognizes state authority to request information from the Federal Government “regarding the immigration status, lawful or unlawful, of any individual,” and further obligates DHS to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” 8 U.S.C. § 1373(b)-(c). Section 1373 thus permits state and local governments to make inquires on specific aliens and requires DHS to respond to such individual requests.
Section 1373 was enacted by Congress at the same time as paragraph 1357(g)(10), see Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104-208, §§ 133, 642 (1996), and therefore the two provisions should be read consistently with each other. See Wood v. A. Wilbert’s Sons Shingle & Lumber Co., 226 U.S. 384, 389 (1912) (separate parts of the same enactment should be read as to not conflict and should be construed such that “each [part has] its proper application, distinct from and harmonious with that of the other.”). When these provisions are read together, 8 U.S.C. § 1373 ensures that no external restriction on the communications between government entities will prevent state and local officers from cooperatively assisting the Federal Government under 8 U.S.C. § 1357(g)(10). See 8 U.S.C. § 1373(a)-(b).
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Further, a state or local government may use the procedures described by subsection 1373(c) to promote bona fide state interests—for example, investigating identity fraud or ensuring eligibility for certain state benefits. But when a state or local government utilizes section 1373 to systematically assist in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” such assistance efforts must be “cooperative” pursuant to the requirements of paragraph 1357(g)(10). In other words, while state and local governments are authorized under section 1373 to inquire into immigration status on individual cases, state and local governments cannot mandate the use of the procedures described by that section for purposes of enforcing the INA’s immigration provisions in a manner that conflicts with policies and priorities of DHS. Any such state-directed mandate would function as direction designed to compete with the Secretary’s direction as to how to enforce immigration law, thereby impermissibly challenging the Federal Government’s exclusive authority over immigration enforcement, interfering with federal enforcement discretion, and forcing the Federal Government to divert resources away from the enforcement priorities it has set.
Finally, there is an important distinction between communication of alien-status information between a state or local government and DHS, and the original acquisition of information by the state or local officer from an individual. The terms “[t]o communicate” and “report” in 8 U.S.C. 1357(g)(10)(A) encompass only the specific act of exchanging information with DHS; that provision does not, in itself, provide a state or local officer with additional authority to investigate an individual’s immigration status so as to acquire information that might be communicated to DHS. Nor does 8 U.S.C. § 1373, by itself, provide the state or local officers with that additional authority. A state or local officer’s ability to acquire such information as to immigration status, therefore, must derive from another source – for example, when the officer is acting pursuant to a written agreement or otherwise in cooperation with the Secretary under 8 U.S.C. § 1357(g), or when the officer learns of information incidentally in the performance of regular police functions.
III. PRACTICAL APPLICATION
To better illustrate the application of the principles discussed above, including the definition of the term “cooperate” in 8 U.S.C. § 1357(g)(10)(B) and the general immigration and preemption principles under which this statutory provision operates, below are some examples of state and local government actions categorized based on whether they are permissible or whether they would infringe on the Federal Government’s authorities. In reviewing this list, there are several critical factors to bear in mind.
First, this is a non-exhaustive list that is intended to provide a select few examples of the above guidance in practice. The fact that a state or local government’s contemplated actions do not have an analogue on this list does not have any bearing on whether such actions would be permissible cooperation or impermissible.
Second, a state and local government’s actions always must be considered in their precise context. The below examples are hypotheticals that are divorced from any particular state or local statutory regime or operational practice. Merely because a state or local government takes some action that bears a resemblance to one of the examples below does not mean that the
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Federal Government may not reach the opposite conclusion as to the permissibility of that state or local action based on the exact wording and structure of the statute in question, the relationship of that state or local action to other state or local actions, the impact of that state or local action on U.S. foreign affairs, or the means by which the state or local government acts in practice.
Third, the definition of “cooperate” in 8 U.S.C. § 1357(g)(10)(B) as described above controls, not the examples below. A state or local government’s actions must maintain the ability to conform to the policies and priorities of DHS and ensure that individual state and local officers are at all times in a position to be—and, when requested, are in fact— responsive to the exercise of direction and guidance of the federal officials charged with implementing and enforcing the immigration laws.

A. Cooperation and Other Permissible Actions

•

State and local law enforcement officers participating in joint task forces with

DHS immigration officers (among other possible U.S. and international partners),

where one purpose of the task force includes identifying and apprehending

individuals suspected of being in violation of federal immigration law.

•

State and local law enforcement officers providing assistance to DHS immigration

officers in the execution of a civil or criminal search or arrest warrant for

individuals suspected of being in violation of federal immigration law—for

example, by providing tactical officers to join the federal officials during higher

risk operations, or providing perimeter security for the operation (e.g., blocking

off public streets).

•

State and local governments providing state equipment, facilities, or services for

use by federal immigration officials for official business.

•

Where independent state or local law grounds provide a basis for doing so, state

and local law enforcement officers seizing evidence or initiating a stop of an

individual at the request of DHS immigration officers where the seizure or stop

would aid an ongoing federal investigation into possible violations of federal

immigration law.

•

Allowing federal immigration officials access to state and local facilities for the

purpose of identifying detained aliens who are held under the state or local

government’s authority, but who also may be of interest to the Federal

Government.

•

Where state government officials learn in the normal course of state business of

possible violations of federal immigration law, referring those possible violations

to DHS immigration officials on a case-by-case basis.

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•

State or local governments sharing information related to immigration matters

with DHS—whether this occurs by state or local governments utilizing standing

information-sharing programs established by DHS, developing relationships with

local DHS offices through which information is shared on a regular basis, or

making calls to DHS on a case-by-case basis.

•

A state or local government exercising certain immigration authorities delegated

to it by DHS pursuant to a written agreement.

B. Impermissible Actions

•

State and local governments attempting to independently remove an alien from

the United States or imposing sanctions on an alien due to a suspected violation of

federal immigration law.

•

State and local governments establishing programs under which aliens currently

in foreign countries may seek permission to enter the United States, or state or

local governments independently facilitating the entry of aliens into the United

States.

•

State governments mandating that state or local law enforcement officers inquire

into the immigration status of a specified group or category of individuals.

•

State governments requiring aliens, because of their status as aliens, to perform

certain tasks or satisfy certain criteria that the INA and federal law neither

requires nor expressly authorizes, in order for those aliens to avoid sanctions by

state officials.

•

State or local governments creating state prohibitions or imposing civil or

criminal sanctions for conduct that is within the scope of the INA, even if not

prohibited by the INA—for example, penalizing aliens present in the United

States without lawful status, penalizing aliens who are in violation of federal

registration requirements, or prohibiting aliens who do not have work

authorization from the Federal Government to seek work within a state.

•

State or local government officials consistently referring certain classes of

individuals or matters to DHS for some action to such an extent as to risk

burdening limited DHS resources and personnel either after being asked by DHS

not to refer those matters or where such referrals fall outside of DHS priorities.

•

State and local governments creating a program that authorizes aliens to work in

their jurisdictions without regard to whether the aliens have work authorization

from the Federal Government.

•

State and local governments proscribing or penalizing the use of consular

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Case 5:17-cv-00404-OLG Document 150-4 Filed 07/10/17 Page 16 of 16 identification cards or other documents, in circumstances where their use would be reasonably related to fulfilling the United States’ treaty-based obligation to inform arrested or detained aliens that they may have their country’s embassy or consulate notified, and that officials from the embassy or consulate must be allowed access to them upon request.
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, §

et al.,

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF HOUSTON,

§

TEXAS,

§

Intervenor

§

§

v.

§

§

THE STATE OF TEXAS, et. al. §

Defendants.

§

C.A. No. 5:17-CV-00404-OLG (Lead Case)
C.A. No. 5:17-CV-00459-OLG (Consolidated Case)
C.A. No. 5:17-CV-00489-OLG (Consolidated Case)

CITY OF HOUSTON’S MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTIONS AND/OR APPLICATIONS FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 2 of 54

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................................................................................. ii

TABLE OF AUTHORITIES ............................................................................ iv

INTRODUCTION ........................................................................................... 1

STANDARDS GOVERNING PRELIMINARY INJUNCTIONS........................ 4

SENATE BILL 4..................................................................................................... 5

ARGUMENT .......................................................................................................... 8

I. SB4 IS PREEMPTED BY FEDERAL LAW ................................................ 8

A. Federal Preemption Principles Governing this Case ............................ 8

B. SB4 Directly and/or Impliedly Conflicts with § 1357(g)’s Scheme to Ensure That Those Functioning as Immigration Officers are Trained, Certified, andCarefully-Supervisedby theU.S. Attorney General ............................................................................................ 12

1. Subsection 1357(g)’s Local Enforcement Scheme.................... 12

2. SB4 Conflicts with and Impermissibly Skews the Scheme of Federal Immigration Enforcement Set Forth in § 1357(g) ........ 21

C. Texas’ and

the

Government’s Preemption

Responses

are

Misdirected, Baseless, or Both .......................................................... 24

1. No Deference is Due the Government’s Views on SB4’s Preemptive Effect or Its Statement of Interest.......................... 24

2. SB4’s Penalties and Mandates Are Not Merely a “Matter of Internal State Management”................................................... 25

3. The Government’s “Cooperation” Arguments Ignore the Operative Provisions of § 1357(g) and its Own Guidance ........ 29

4. The Government’s Argument that Federal Law is Not in Conflict with SB4 Because It Does Not Prohibit Inquiring About Immigration Status is Misdirected................................ 33

II. SB4 VIOLATES THE HOME-RULE PROVISIONS OF TEXAS CONSTITUTION ART. XI, § 5 ............................................................. 35

ii

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 3 of 54 III. SB4 VIOLATES THE FIRST AMENDMENT AND TEXAS
CONSTITUTION ART. I, § 8 .................................................................... 37 IV. SB4 VIOLATES THE FOURTH AMENDMENT AND THE TEXAS
CONSTITUTION, ART. I, § 9 ................................................................... 38 V. SB4 VIOLATES THE FOURTEENTH AMENDMENT EQUAL
PROTECTION AND DUE PROCESS CLAUSES AND TEXAS CONSTITUTION ARTS. I, §§ 3 & 9 ...................................................... 38 PRAYER FOR RELIEF ........................................................................................ 39 CERTIFICATE OF SERVICE ........................................................................ 41
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 4 of 54
TABLE OF AUTHORITIES
Page(s)
Cases Altria Grp., Inc. v. Good,
555 U.S.70 (2008)............................................................................................. 9 Anderson v. Edwards,
514 U.S. 143 (1995).......................................................................................... 11 Buckman v. Plaintiffs’ Legal Comm.,
531 U.S. 341 (2001) ......................................................................... 10, 11, 22, 23 Chapman v. Hous. Welfare Rights Org.,
441 U.S. 600 (1979) ......................................................................................... 28 City of Hugo v. Nichols (Two Cases),
656 F.3d 1251 (10th Cir. 2011) ......................................................................... 28 City of Richardson v. Responsible Dog Owners,
794 S.W.2d 17 (Tex. 1990)............................................................................... 36 Columbus v. Ours Garage & Wrecker Service, Inc.,
536 U.S. 424 (2002)......................................................................................... 26 Commissions Imp. Exp. S.A. v. Republic of the Congo,
757 F.3d 321 (D.C. Cir. 2014 ........................................................................... 33 Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000)......................................................................................... 10 Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas,
852 S.W.2d 489 (Tex. 1993)............................................................................. 35 De Canas v. Bica,
424 U.S. 351 (1976) ......................................................................................... 12 Donelon v. La. Div. of Admin. Law ex rel. Wise,
522 F.3d 564 (5th Cir. 2008) ............................................................................ 27 Ex parte Young,
209 U.S .123 (1908) ......................................................................................... 28
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 5 of 54
Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ........................................................................................... 9
Ga. Latino All. for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012) ......................................................................... 11
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .............................................................................15
Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) ...................................................................................... 9, 25
Green v. Mansour, 474 U.S. 64 (1985) ........................................................................................... 28
Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ........................................................................................... 9
Hines v. Davidowitz, 312 U.S. 52 (1941) ............................................................................................. 9
Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003) ............................................................................ 11
Jones v. Rath Packing Co., 430 U.S. 519 (1977) ........................................................................................... 9
Koog v. United States, 79 F.3d 452 (5th Cir. 1996) ......................................................................... 26, 33
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ........................................................................................... 8
Mercado v. Dallas Cty., 2017 WL 169102 (N.D. Tex. Jan. 17, 2017)...................................................... 15
Monk v. Wyeth Pharm., Inc., SA-16-CV-1273-XR, 2017 WL 2063008 (W.D. Tex. May11, 2017).................. 11
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971) ......................................................................................... 32
Perdue v. Wyeth Pharm., Inc., 209 F. Supp. 3d 847 (E.D.N.C. 2016) ......................................................... 11, 22
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 6 of 54
PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ........................................................................................ 24
Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979), cert. denied 444 U.S. 827 (1979) ....................... 27
Savage v. Jones, 225 U.S. 501 (1912) ......................................................................................... 10
Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180-94 (1978) ..................................................................................... 9
Speaks v. Kruse, 445 F.3d 396 (5th Cir. 2006) ............................................................................ 4
United States v. Arizona, 567 U.S. 387 (2012) ................................................................................... passim
United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), aff’d in part, rev’d in part, 567 U.S. 387 (2012) ....... 13
United States v. Salerno, 481 U.S. 739 (1987) ......................................................................................... 11
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)......................................................................................... 11
Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955) ........................................................................................... 9
Williams v. Mayor, 289 U.S. 36 (1933) ........................................................................................... 27
Wis. Public Intervenor v. Mortier, 501 U.S. 597 (1991) .................................................................................... 25, 26
Wyeth v. Levine, 555 U.S. 555 (2009) .............................................................................8, 9, 24, 25
Constitution and Statutes Texas Const. art. XI,§ 5 ........................................................................................ 35 8 U.S.C. § 1357 .............................................................................................. passim
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Tex. Code Crim. P. § 2.13 ....................................................................................... 7 Tex. Gov’t Code § 311.021 .....................................................................................15 Tex. Gov’t Code § 311.023 .....................................................................................15 Tex. Gov’t Code § 402.0241 ................................................................................... 7 Tex. Gov’t Code § 752.051 ...................................................................................... 5 Tex. Gov’t Code § 752.053 ............................................................................ 5, 6, 39 Tex. Gov’t Code § 752.055 ................................................................................ 6, 39 Tex. Gov’t Code § 752.056 ..................................................................................... 6 Tex. Gov’t Code § 752.0565.................................................................................... 6 Tex. Penal Code § 12.21.......................................................................................... 7
Other Authorities 8 C.F.R. § 287.7.....................................................................................................15 Fed. R. Evid. 201............................................................................................... 5, 16 Amasa M. Eaton, The Right to Local Self-Government, 13 Harv. L. Rev. 441
(Feb. 1900)......................................................................................................28 Annie Decker, Preemption Conflation: Dividing the Local from the State in
Congressional Decision Making, 30 Yale L. & Policy Rev. 321 (Spring 2012).......28 Jake Sullivan, Comment, The Tenth Amendment and Local Government, 112 Yale
L.J. 1935 (May 2003) ...................................................................................... 28 Richard Briffault, Our Localism: Part I―The Structure of Local Government Law,
90 Colum. L. Rev. 1 (1990).............................................................................. 28 U.S. Dep’t of Homeland Security, Guidance on State and Local Governments’
Assistance in Immigration Enforcement and Related Matters 7 (July 16, 2015) .... passim
City Charter Houston, Tex., City Charter, Art. II, § 2(a) ........................................................... 39
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 8 of 54 Houston, Tex., City Charter, Art. II, § 2(b)............................................................ 39 Houston, Tex., City Charter, Art. V, et seq................................................................ 39
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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 9 of 54
Plaintiff/Intervenor the CITY OF HOUSTON (“Houston”) files this its Memorandum in Support of the Motions and/or Applications for Preliminary Injunction of the cities of El Cenizo [Dkt. 24], El Paso [Dkts. 56 & 56-1], Austin [Dkt. 57], and San Antonio [Dkt. 77], pursuant to this court’s briefing order, dated June 30, 2017. In support thereof, Houston would show as follows:
INTRODUCTION Senate Bill 4’s (“SB4”) constitutionality and this court’s decision whether to grant a preliminary injunction turn, in large part, upon this court’s willingness to suspend reality, ignore or rewrite numerous provisions of the existing immigration laws, and embrace a cynical myth: that holding Texas peace officers and elected and appointed officials hostage to bankrupting fines and draconian penalties, including summary removal from office, does not make anything they are asked or allowed to do under SB4 mandatory. In fact, Defendants, the State of Texas (“Texas”) and United States (“the Government”), contend that SB4 does nothing more than require “cooperation” with federal immigration authorities. Paraphrasing “Cool Hand Luke,” it is as if, surveying the vast field of Texas police officers and chiefs, city council members, mayors, and city managers, jail administrators, and city, county, and district attorneys that SB4 would hold captive, the Governor announced: “what we’ve got here is a failure to cooperate.” Fortunately, this court does not have the luxury of pretending what is, isn’t. Although Houston intervened in these consolidated lawsuits too late to file its own application for preliminary injunction, this court has generously permitted Houston to join in those applications and motions filed by other plaintiffs and to file

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 10 of 54
its own brief in support of those motions. To that end, Houston seeks to do three things: 1) to supplement the core arguments made by other plaintiffs in their applications and demonstrate why plaintiffs more than meet the standards required for a successful, pre-enforcement, facial challenge to the key provisions of SB4; 2) to address the misdirected and/or baseless arguments Texas and the Government have made but that other plaintiffs may not have not fully addressed; and 3) to adopt the First Amendment and Texas Constitution Art. I, § 8; Fourth Amendment and Texas Constitution, Art. I, § 9; and Fourteenth Amendment Equal Protection and Due Process Clauses and Texas Constitution Art. I, §§ 3 & 9 arguments made by several other cities in their applications/motions here.
To these ends, Houston argues first that the operative provisions of SB4 are conflict and/or impliedly preempted by federal law, specifically, by the carefullycrafted local immigration enforcement regime established by 8 U.S.C. § 1357. For example, under § 1357(a)(1), the routine inquiries into a detainee’s immigration status that SB4 requires are functions only federal immigration officers perform. Under § 1357(g), these functions may only be routinely performed by local police under contracts with the federal government that ensure federal training, certification, and ongoing federal supervision. SB4 requires none of those things. Subsection 1357(g)(5) grants to cities and to the U.S. Attorney General the power to specify in such contracts whether the enforcement activities that local governments will undertake will be mandatory or optional. SB4 gives Texas that authority to wield with asledge-hammer.
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By fundamentally changing the relationship between federal and local governments in immigration enforcement and the methods that may be used to ensure local compliance, SB4 directly and/or impliedly conflicts with 8 U.S.C. § 1357(g)’s detailed scheme to ensure that those who routinely function as immigration officers are trained, certified, and carefully-supervised by the U.S. Attorney General.
Nothing in Texas’ and the Government’s preemption responses changes this result. First, the U.S. Supreme Court has held that no deference is due the Government’s Statement of Interest or views on SB4’s preemptive effect it contains because its Statement starkly diverges from DHS’ prior pronouncements. Second, a review of SB4, federal immigration statutes, and federalism cases reveals that Defendants’ argument that SB4’s penalties and mandates are merely a “matter of internal state management” is without merit. Likewise, Defendants’ “cooperation” arguments ignore the operative provisions of § 1357(g) and DHS’ own Guidance for State and Local Governments. Third, Defendants’ argument that federal law is not in conflict with SB4 because it does not prohibit inquiring about immigration status is at odds with the plain language of both SB4 and the federal immigration laws.
In addition to its preemption, SB4 is also constitutionally infirm because it violates the home-rule provisions of the Texas Constitution Art. XI, § 5.
While it was abundantly clear at this court’s June 26 hearing that SB4 is a cruel andill-considered solutioninsearchof a problem, Houston seekstoconfirm onceand for all that is also facially unconstitutional. Because a careful analysis of SB4 and the
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immigration laws it purports to enforce reveals that it is, Houston asks that this court enter a preliminary injunction enjoining its enforcement, in whole or in part.
STANDARDS GOVERNING PRELIMINARY INJUNCTIONS To grant preliminary injunction, this court must find that plaintiffs have established: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that, if the injunction is denied, the threatened injury outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest.1 Because Houston entered the case too late to include exhibits to support requirements2-4,withoneexception,itwill relyonevidenceotherplaintiffsprovided indeclarations,livetestimony,andwrittenevidenceatthecourt’shearing onJune26. Houston would, however, call the court’s attention to the Declaration of Art Acevedo, Houston’s Police Chief, Dkt. 99-2, which it filed prior to the hearing along with its Motion to Intervene and proposed complaint, and that Plaintiffs jointly listed as Exhibit P-9 for that hearing.2 It is attached as Exh. A and described where relevant. It more than demonstrates that Houston, like other Texas cities, faces a substantial threat of irreparable injury if the injunction is not issued; that, if the injunction is denied, the threatened injury outweighs any harm that will result if the injunction is granted; and that the grant of an injunction will not disserve the public interest.
1 Speaks v. Kruse, 445 F.3d 396, 400 (5th Cir. 2006). 2 See Dkt. 123 [Exh. P- 9].
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Inthismemorandum, however, Houstonwillfocusonsatisfying thefirstprong of the preliminary injunction test: demonstrating a substantial likelihood of success on the merits.
SENATE BILL 43 SB4 improperly and unconstitutionally changes the existing obligations of municipalities under federal immigration law, transforming them from voluntary and cooperative to mandatory, and subjecting lawmakers and law enforcement officers alike to draconian penalties, not just for violations, but for merely speaking in opposition to the policies SB4 embodies. SB4’s Article 1 amends the Texas Government Code. New § 752.053 requires that“localentities,”which,amongotherthings,itdefinesascityandcounty governing bodies, officers, and their employees, sheriffs, and county, city, and district attorneys, are prohibited from “adopting, enforcing, or endorsing” a policy, which can include “an informal, unwritten policy,” that prohibits or “materially limits” the enforcement of “immigration laws,” as demonstrated by “pattern or practice.”4 SB4 then prohibits these local entities from adopting policies that prohibit or materially limit a police officer from inquiring into the immigration status of a person under lawful detention orunder arrest, id. at§752.053(b)(1); inquiring intothedetainee’splaceof birth, id. at § 752.053(b)(2); sending that information to United States Citizenship and
3 A copy of the enrolled version of Senate Bill 4 is attached as Exh. B for the Court’s convenience. The court is asked to take judicial notice of its provisions. See Fed. R. Evid. 201. 4 Tex. Gov’t Code §§ 752.051(5) (definitions); 752.053(a).
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Immigration Services (“USCIS”), Immigration Customs Enforcement (“ICE”), or any other federal agency, id. at § 752.053(b)(2(A); assisting or cooperating with a federal immigration officer, id. at § 752.053(b)(3); and/or allowing the federal government access to a jail to enforce federal immigration law. Id. at § 752.053(b)(4).
While §752.054 ostensibly prohibitsdiscrimination,itallows any citizentofile a complaint against any local entity alleging violations of 752.053. Id. at § 752.055(a). It then authorizes the Attorney General to seek equitable relief from such violations. Id. at § 752.055(b). Subsection 752.056, in turn, provides for civil penalties against local entities found by a court to have violated § 752.053. Each day is a separate violation. Id. at § 752.056(b). These escalating civil penalties include exorbitant fines of between $1,000.00 and $1,500.00 for the first day of a violation, and, thereafter, between $25,000 and $25,500 per day for every subsequent violation. Id. at § 752.056. Finally, § 752.0565 provides that elected or appointed officials may be removed from office if they violate § 752.053. Proof sufficient to remove an official need only be “a statement by the public officer.” Id. at § 752.0565(b).
Article 2 amends the Texas Code of Criminal Procedure. Art. 2.251(a) mandates that law enforcement agencies that have “custody” of a person subject to a detainerrequest“shallcomplywith, honorandfulfillany requestmadeinthedetainer request,” whether or not the officer or entity has made any determination that it was issued with probable cause or with any underlying criminal charges [other than immigration offenses] to justify continued detention. However, art 2.251(b) suspends
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that duty when the person in custody has provided proof of citizenship or lawful immigration status based on certain government-issued identification.
Article 3 further amends the Texas Government Code. It provides that the Attorney General “shall defend” a local entity sued for complying with an immigration detainer request but only if the Attorney General “determines that the cause of action arises out of a claim involving the local entity’s good-faith compliance with an immigration detainer request.” Tex. Gov’t Code § 402.0241(b). The subsection thus consigns the decision to provide a defense and reimbursement of any judgment to the discretion of the Texas Attorney General, adding an additional means by which Texas can coerce compliance by cities. Only if he or she opts to defend the city will Texas be responsible for any judgment or fees. Id. at § 402.0241(c). If the Attorney General turns the case down, however, or if the claim does not qualify for defense, a city is on its own.
Article5 amendstheLocal Government and PenalCodes to create anew crime. Under Tex. Penal Code § 39.07, as amended, a sheriff’s, police chief’s, constable’s, or jail administrator’s knowing failure to comply with an immigration detainer request is a Class A misdemeanor, which is punishable by up to a year in jail. See id. at § 12.21.
Article 6 amends the Code of Criminal Procedure. It provides that police officers may inquire into the nationality or immigration status of a crime victim or witness if the officer determines, among other things, that the inquiry is necessary to investigate the offense. Tex. Code Crim. P. § 2.13(d)(1).
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ARGUMENT I. SB4 IS PREEMPTED BY FEDERAL LAW5
SB4 violates the Supremacy Clause of the United States Constitution because it directly conflicts with multiple federal statutes, regulations promulgated by the Department of Homeland Security, and executive orders of the President.
Although Houston adopts the preemption arguments made and evidence submitted by the cities of El Cenizo and Austin in connection with their motions/applications for preliminary injunction, it will focus here on how SB4 directly and/or impliedly conflicts with federal law.
A. Federal Preemption Principles Governing this Case The authority of federal law to preempt and thus to supersede state law derives from the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2. In determining whether state law is preempted, courts “must be guided by two cornerstones of our pre-emption jurisprudence. First, ‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’”6 Second, “[i]n all pre-emption cases, and particularly in those in which Congress has ‘legislated ... in a field which the States have traditionally occupied’ ... we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’”7 Federal preemption jurisprudence thus permits three kinds of
5 The Application for Preliminary Injunction filed by the City of El Cenizo, et al., raises preemption arguments that encompass those Houston makes here. See Dkt. 24-1, at 13-19. 6 Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). 7 Wyeth, 555 U.S. at 565 (quoting Lohr, 518 U.S. at 485).
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preemption: express preemption, field preemption, and conflict preemption.8 Houston arguments here are directed only to conflict preemption.
Where, as here, conflict preemption has been asserted, federal law supersedes state law only to the extent the two conflict. This can occur in two ways: 1) where it is impossible for a private party to comply with both state and federal requirements;9 or 2) where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”10
Unlike express and field preemption, conflict preemption turns on the identification of an “actual conflict,” not on any express statement of preemptive intent.11 Instead, “Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose.”12 As the Court explained: “in each case, the pertinent inquiry is whether the two potentially conflicting statutes were ‘brought to bear on precisely the same conduct.’”13
8 See, e.g., Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985). Express preemption applieswhereCongress,throughastatute’sexpress language,declaresitsintent todisplacestatelaw. Id. Field preemption applies where “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Id. 9 See, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). 10 Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see Wyeth, 555 U.S. at 563-64. 11 Geier v. Am. Honda Motor Co., 529 U.S. 861, 884 (2000). 12 Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). 13 Sears,Roebuck &Co. v. San DiegoCty. Dist.CouncilofCarpenters, 436 U.S. 180, 193-94 (1978) (quoting Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 479 (1955); see also Wyeth, 555 U.S. at 583 (Thomas, J., concurring) (“where state and federal law ‘directly conflict,’ state law must give way”).
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By contrast, “frustration of purpose” or implied conflict preemption may exist even when there is no direct conflict. Preemptive intent, however, is drawn from the language of statute itself and its structure and purposes. As one court explained:
What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: ‘For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power.’14 There is also a variation on frustration of purpose/implied conflict preemption that was tailor-made for this case. It is based on the U.S. Supreme Court’s decision in Buckman v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). Buckman dealt with “fraud-onthe–FDA”claimsinvolving amedicaldevicemanufacturerallegedlyusingfraudulent representations to obtain U.S. Food and Drug Administration (“FDA”) approval for adevice. Theplaintiffsbroughtstate-lawclaimsagainsttheconsultantswhomadethe misrepresentations to FDA. Id. at 345-46. Recognizing that state-law claims for fraudon-the-FDA conflicted with federal law because they skew “a somewhat delicate balance of statutory objectives” advanced by FDA, the Court found that the plaintiffs’ state-law claims were preempted. Id. at 348. The Court explained that state-law claims
14 Crosbyv.Nat’lForeignTradeCouncil,530U.S.363, 373(2000) (quotingSavagev. Jones,225U.S.501, 533 (1912)) (emphasis supplied).
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that exist “solely by virtue” of federal regulatory requirements are preempted.15
Buckman’s preemptive effect has been extended far beyond its original context.16
Preemption, as asserted by Houston and other plaintiffs here, is a facial
challenge,17 which ordinarily requires little or no factual evaluation, and is, therefore,
an appropriate ground for seeking an injunction in this pre-enforcement stage. Unlike
the preemption challenge to § 2(B) in U.S. v. Arizona, Houston’s preemption challenge
is not to the likely scope of detention, an inquiry the Court found premature.18 Instead,
Houston’s challenge more closely resembles the Government’s preemption challenge
to §§ 5(C) and 6 in Arizona, both of which the Court found impliedly conflict-
preempted. This inquiry involved a careful examination of the plain language and
structure and purposes of the statutes to determine if a preemptive conflict, direct or
implied, existed.19 That is what Houston has attempted to do for the court here.
15 Id. at 352-53; see also Perdue v. Wyeth Pharm., Inc., 209 F. Supp. 3d 847, 851 (E.D.N.C. 2016) (holding that a state law claim is preempted under Buckman if “‘the existence of these federal enactments is a critical element in [plaintiff's] case,’ and [if] a plaintiff’s claims ‘exist solely by virtue of the FDCA ... requirements.’” Id. (quoting Buckman, 531 U.S. at 352)). 16 See, e.g., Perdue, 209 F. Supp. 3d at 851-52; Monk v. Wyeth Pharm., Inc., SA-16-CV-1273-XR, 2017 WL 2063008, at *4 (W.D. Tex. May 11, 2017). 17 See United States v. Salerno, 481 U.S. 739, 745 (1987) (in facial challenges, challenger must establish that no set of circumstances exists under which the challenged act would be valid). The Supreme Court has called into question the continuing validity of the Salerno rule in the context of First Amendment challenges, like the one here. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 339, n.6 (2008). In cases involving federal preemption of an ordinary state statute, however, the rule applies. SeeHotel&MotelAss’nofOaklandv.CityofOakland, 344 F.3d 959, 971 (9th Cir. 2003).(quoting Salerno, 481 U.S. at 745); see also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (applying Salerno to a federal preemption [facial] challenge to a state statute). 18 567 U.S. 387, 414-15 (2012); see also Ga. Latino All. for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1267–68 (11th Cir. 2012). 19 See Arizona, 567 U.S. at 406.
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Contrary to the groundless assertion made by amicus, Immigration Reform Law Institute, in its brief in support of Texas, there is no special, heightened requirement for or prohibition on finding preemption of state statutes that conflict with immigration laws.20 Moreover, the Institute did not address the conflict preemption arguments Houston makes here and did not address implied conflict preemption at all. Its arguments thus misfire here.
B. SB4 Directly and/or Impliedly Conflicts with § 1357(g)’s Scheme to Ensure That Those Functioning as Immigration Officers are Trained, Certified, and Carefully-Supervised by the U.S. Attorney General 1. Subsection 1357(g)’s Local Enforcement Scheme21
8 U.S.C. § 1357(g)(1) provides that, “Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer … may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.” Subsection 1357(g)(9), provides, however, that “nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.” Id. (emphasis supplied).
20 See Dkt. 137, at 7-8. Instead, the footnote the Institute mis-cites from De Canas v. Bica, 424U.S.351, 357 n.5 (1976), says nothing more remarkable than that “conflicting law … should be pre-empted … ‘onlytotheextentnecessarytoprotecttheachievementoftheaimsof’thefederal law” andreconciled, if possible.20 Grounded in notions of constitutional avoidance, that rule governs every conflict preemption scenario. 21 A copy of 8 U.S.C. § 1357 is attached as Exh. C for the court’s convenience.
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Subsection 1357(g)(5) governs the content of such agreements and is particularly important for this case. It provides that any written agreement must specify “the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual.”22 Thus, the plain language of the statute indicates that Congress intended for the decision whether local officers’ immigration enforcement activities would be mandatory or optional to be the sole province of the U.S. Attorney General based on his or her agreement with local decision-makers. SB4 takes that power for the State.
Subsection 1357(g) is expressly made subject to 31 U.S.C. § 1342, which is the general prohibition on the federal government’s receiving free services. It provides, in relevant part, that an “officer or employee of the United States Government … may not accept voluntary [free] services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Id. (emphasis supplied). Routine immigration enforcement and, in particular, routine enforcement of ICE detainer requests, which are addressed to individuals who have already been “detained” by law enforcement or are already in “custody” does not constitute such an emergency.
In addition, § 1357(g) itself also contains a similar prohibition: “the Attorney General may not accept a service under this subsection if the service will be used to
22 Id. (emphasis supplied) (cited in United States v. Arizona, 641 F.3d 339, 348 (9th Cir. 2011), aff’d in part, rev’d in part, 567 U.S. 387 (2012)).
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displace any Federal employee.” Id. at § 1357(g)(6). In other words, the federal government is not permitted to use borrowed local police officers to avoid hiring the ICE and DHS employees it needs. Together, subsections 1357(g)(6) and 1342 make clear that the Government may not legally accept, cannot require that local government finance, or that local law enforcement officers perform the functions of immigration officers on a routine, systematic basis without a contract.
This is not to say, as Texas argued at the June 26 hearing, that Houston law enforcement officers would have been barred from reporting to ICE Osama bin Laden’s undocumented presence in the Houston Police Department lobby in the absence of a § 1357(g)(1) contract. Subsection 1357(g)(10), read properly, in context, and within the structure and purposes of § 1357(g), provides for just such contingencies. Likewise, 8 U.S.C. § 1373, which provides for cooperation and communication between state law enforcement and federal immigration authorities, would also cover such a contingency.
While ignoring thesereadily-available “cooperation”provisions in response to Houston’s preemption argument, Texas and the Government nevertheless rely almost exclusively upon §§ 1357(g)(10) and 1373 in arguing that all that SB4 requires is mere cooperationandcommunicationandthatnothing inSB4 implicatesorrequiresthata localofficerperform thefunctionsof immigrationofficers. Thus,they arguethatthere is no need for the kind of agreement § 1357(g) envisions. This court, however, cannot
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properly read these provisions in a vacuum to nullify the remainder of § 1357(g) and allow routine performance of immigration officer functions without a contract.23
First, the Government’s and Texas’ reading of § 1357(g)(10) is belied by the plain language of SB4. Under § 1357(a)(1), immigration officer functions include the “power without a warrant to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States.” This function corresponds directly with SB4’s [amended Tex. Gov’t Code] § 753.053(b)(1), which provides that cities “may not prohibit or materially limit” their officers from “inquiring into the immigration status of a person under lawful arrest or detention.” Thus, under SB4, both immigration officers and local police have the “power to interrogate” regarding immigration status.
Subsection 1357(g)(1) also lists as a function of immigration officers the “detention of aliens in the United States.” This function likewise corresponds directly to SB4’s [amended Tex. Code Crim. P.] art. 2.251(a)(1), which provides that law enforcement agencies “shall comply with, honor, and fulfill any request made in the [ICE] detainer requests provided by the federal government.” Compliance with such detainer“request”iscurrentlyvoluntary.24It is,therefore,falsetoargue,asbothTexas
23 Tex. Gov’t Code §§ 311.021(2) (“the entire statute is intended to be effective”); 311.023(5) (in construing a statute, court may consider the “consequences of a particular construction”). The Texas Code Construction Act applies when a federal court is interpreting a Texas statute. 24 See Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (compliance with detainer request is not mandatory); Mercado v. Dallas Cty., 2017 WL 169102, *16 (N.D. Tex. Jan. 17, 2017) (same); 8 C.F.R. § 287.7(a) (“detainer is a request that such agency advise the Department, prior to the release of the alien …”).
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and the Government do, that, under SB4, local police will not perform immigration officer functions but will only “cooperate” with and assist them.
SB4 itself also differentiates between the power to interrogate and the ability to cooperate, communicate, and assist. SB4’s amended Tex. Gov’t Code §753.053(b)(1), empowers officers to inquire “into the immigration status of a person under lawful arrest or detention.” By contrast, § 753.053(b)(3), addresses “assisting and cooperating with federal immigration officers.” Because the Texas Legislature itself treats cooperation and assistance as something separate and distinct from inquiring as to immigration status, this Court may not conflate the two as Defendants suggest.
Subsection’s 1357(g)(6)’s and 1342’s real import then is in restraining Texas’ and the Government’s expansive interpretation of §§ 1357(g)(10) and 1373 as permitting systematic enforcement of immigration laws without a written agreement. Yet there are other reasons for this court to reject the Government’s and Texas’ reading. First, it is undercut by the Government’s own explanation of the purpose of § 1357(g)(10) in its Guidance to State and Local Government’s Assistance in Immigration Enforcement, which is attached as Exh. D here. 25 It explains:
As contemplated by this provision [(g)(10)], DHS has invited and acceptedtheassistanceof state and local law enforcementpersonnelin a varietyof contextsthatlieoutsideofthewrittenagreementsprovidedfor by paragraphs (1) - (9) of subsection 1357(g), such as through BESTs, the Criminal Alien Program, Fugitive Operations Task Forces, and
25 See U.S. Dep’t of Homeland Security (“DHS”), Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 7 (July 16, 2015), available at https://www.dhs.gov/publication/guidance-state-and-local-governments-assistance-immigrationenforcement-and-related. The court is asked to take judicial notice of this published, government document that is currently available on the DHS website. See Fed. R. Evid. 201.
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Operation Community Shield. Moreover, state and local law enforcement officers render assistance to DHS on a case-by-case basis as immigration matters come to their attention in the performance of their regular duties under state or local law.
Id. (emphasis supplied). In the Government’s view then, § 1357(g)(10) is reserved for
special federal programs and case-by-case assistance. Nothing in its own explanation
would allow for the systematic subversion of the rest of §1357(g).
Second, the Ninth Circuit also embraced Houston’s more cabined reading of
§ 1357(g)(10) in a part of its opinion that was not raised, briefed, or decided in the
Supreme Court.26 It explained:
Although this language, read alone, is broad, we must interpret Congress’ intent in adopting subsection (g)(10) in light of the rest of § 1357(g). Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify the rest of § 1357(g), which demonstrates that Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the [U.S.] Attorney General’s supervision. Subsection (g)(10) does not operate as a broad alternative grant of authority for state officers to systematically enforce the INA outside of the restrictions set forth in subsections (g)(1)-(9).
The inclusion of the word ‘removal’27 in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under § 1357(g) to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government. By including ‘removal’ in § 1357(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove immigrants. Therefore, the inclusion of ‘removal’ in the list of ways that a state may ‘otherwise []
26 A quick review of the Government’s Brief in the Supreme Court indicates that it dropped its preemptionargumentunder§1357(g) infavorofoneobliquelyaddressingdeferredactionprograms, after the decision in the Ninth Circuit. See State of Arizona v. United States of America, 2012 WL 939048, *44-45 (2012) (Brief of the United States); see also State of Arizona v. United States of America, 2012 WL 1332574, *1 (2012) (Brief of Petitioners) (petitioners did not address this argument or the Ninth Circuit’s discussion of it in their brief or petition). 27 DHS’ Guidance makes exactly the same argument. See DHS, supra note 25, at 9.
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cooperate with the Attorney General,’ indicates that subsection (g)(10) does not permit states to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated by state law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officers—or such officers are confronted with the necessity—to cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are required for systematic and routine cooperation. Similarly, we interpret subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of § 1357(g).
In sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General—to whom Congress granted discretion in determining the precise conditions and direction of each state officer’s assistance. We find it particularly significant for the purposes of the present case that this discretion includes the Attorney General’s ability to make an individual officer’s immigration-enforcement duties permissive or mandatory. 8 U.S.C. § 1357(g)(5).28
28 Arizona, 641 F.3d at 349-50 (emphasis supplied). The court thus found impliedly preempted Section 2(B) of the Arizona law, which is quite similar to the enforcement provisions of SB4. It explained:
Section 2(B) sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress’ explicit requirement that in the ‘[p]erformance of immigration officer functions by State officers and employees,’ such officers ‘shall be subject to the direction and supervision of the Attorney General.’ 8 U.S.C. § 1357(g)(3). Section 2(B) therefore interferes with Congress’ scheme because Arizona has assumed a role in directing its officers how to enforce the INA. We are not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General's role in directing state enforcement of federal immigration laws.
Id. Emphasis supplied.
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This reading is not inconsistent with the Supreme Court’s determination in Arizona that §§ 1357(g)(10) and 1373 evince Congressional intent to encourage cooperation, such that the “federal scheme thus leaves room for a [statewide] policy requiring state officials to contact ICE as a routine matter.” 567 U.S. at 413 (emphasis supplied). As demonstrated, even the Texas Legislature, in drafting SB4, recognized a distinction and reflected in its text the notion that police cooperation, coordination, and contact with ICE are not the same thing as officers stepping into the shoes of immigration officers to perform immigration officers’ statutory functions on a routine basis. More important, the Government’s own Guidance make this distinction crystal clear. It states:
there is an important distinction between communication of alien-status information between a state or local government and DHS, and the original acquisition of information by the state or local officer from an individual. The terms ‘[t]o communicate’ and ‘report’ in 8 U.S.C. §1357(g)(10)(A) encompass only the specific act of exchanging information with DHS; that provision does not, in itself, provide a state or local officer with additional authority to investigate an individual’s immigration status so as to acquire information that might be communicated to DHS. Nor does 8 U.S.C. § 1373, by itself, provide the state or local officers with that additional authority.29 As a result, nothing in Arizona precludes Houston’s interpretation of §1357(g)(10). Finally, Houston’s interpretation is supported by Congress’ apparent purpose in requiring contracts with local governments before local officers are permitted routinely to perform immigration officer functions. Under § 1357(g), the federal government may ultimately be held liable for those who act as its immigration officers. The use of
29 See DHS, supra note 25, at 12 (emphasis supplied).
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contracts necessarily identifies and limits the universe of those for whom the federal government may become responsible. To that end, Subsection 1357(g)(2) requires that any local police officer carrying out such functions, not only “be knowledgeable in federal immigration law,” but the contract “shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.”30 Indeed, such officer “shall be subject to the direction and supervision of the Attorney General” who “is required to supervise and direct the individual” per specific provisions in the agreement. Id. at § 1357(g)(3) & (5). These provisions make clear that, although local police officers will be acting under color of federal law, he or she “shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).” Id. at § 1357(g)(7) & (8). Finally, no such police officer may displace a federal employee, such as a current or future employee of ICE. Id. at § 1357(g)(6).
These exacting requirements demonstrate that it is almost unimaginable that the Congress would have authorized the wide-ranging immigration enforcement by local police officers across Texas that SB4 requires without § 1357(g)’s requisite ongoing supervision, training, or certification by the U.S. Attorney General.
30 8 U.S.C. § 1357(g)(2) (emphasis supplied).
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2. SB4 Conflicts with and Impermissibly Skews the Scheme of Federal Immigration Enforcement Set Forth in § 1357(g)
SB4 directly conflicts with the immigration enforcement scheme set forth in § 1357(g) by 1) mandating that local police officers perform immigration officer functions even though it is a violation of federal law for ICE, DHS, or any other federal government agency to accept such services without paying for them; 2) creating an unfunded mandate in violation of 31 U.S.C.A. § 1342; 3) mandating that local police officers and cities provide services federal law expressly makes voluntary; 3) punishing civilly, criminally, and with forfeiture of office the failure to provide services federal law expressly makes voluntary; 4) subjecting the federal government, without its permission or authorization, to liability by forcing local police officers to act under color of federal law without providing the training or supervision required by federal law from federal law enforcement agencies; 5) eliminating the knowledge, training, and supervision requirements mandated for those acting as federal immigration officers under federal law; 6) in violation of federal law, displacing federal workers who ICE and DHS might otherwise have hired in Texas to enforce the federal immigration laws; and, most important, 7) depriving cities of the statutory choice whether they will mandatorily or voluntarily enforce federal immigration law.
In addition or in the alternative, for the same reasons, SB4 frustrates the purposes of § 1357(g) and “skews” improperly and irrevocably the “delicate balance of statutory objectives” it sets forth to ensure that those who enforce the immigration
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laws are highly trained, certified, and carefully supervised by federal authorities.31
Moreover, as in Buckman, SB4 exists “solely by virtue” of the federal immigration
laws. As a result, the requirements and punishments it imposes on law enforcement officers, agencies and public officials are preempted.32
There can be no doubt that SB4’s operative provisions are at least impliedly
preempted. Indeed, the Government itself states in its Guidance that, “through these and
other cooperative arrangements [under § 1357(g)], state and local governments have
been able to assist DHS in a manner that conforms to DHS’s balanced administration of
a complex immigration scheme and that is consistent with DHS’s specific priorities and
approach.”33
More important, SB4 imposes precisely the kind of mandatory local regime that
the Government itself has deemed to be in conflict with both the federal immigration
laws, its carefully-crafted enforcement scheme, and its immigration enforcement goals.
As the Government itself explains in its Guidance, currently available on its website:
In requiring ‘cooperation,’ the INA thus requires that a state or local law enforcementofficerwho assists DHS officers intheir enforcementof the immigration laws must at all times have the freedom to adapt to federal priorities and direction and conform to federal discretion, rather than being subject to systematic mandatory state or local directives that may work at odds with DHS. Although a similar lack of receptiveness to federal priorities might pervade even a system that gives officers discretion, any such state
31 See Buckman, 561 U.S. at 348 (“The balance sought by the Administration can be skewed by allowing [such] claims …”). 32 Id. at 352-53; see also Perdue, 209 F. Supp. 3d at 851 (E.D.N.C. 2016) (holding that a state law claim is preempted under Buckman if “‘the existence of these federal enactments is a critical element in [plaintiff's] case,’ and [if] a plaintiff’s claims ‘exist solely by virtue of the FDCA ... requirements.’” Id. (quoting Buckman, 531 U.S. at 352)). 33 See DHS, supra note 25, at 7 (emphasis supplied).
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or local government-directed mandate would necessarily function as a parallel or contradictory direction, in competition with the Secretary’s direction, as to how to enforce immigration law, thereby eroding the federal government’s exclusive authority over immigration enforcement. Where inconsistent with federal priorities, a mandatory directive would force the Federal Government to divert resources away from the enforcement priorities it has set. Evenifa state or local mandatory directive matches the federal priorities in place at the time of adoption, federal priorities and the manner in which they are applied can, and do, change. In fact, over the past two years, the federal immigration enforcement priorities and the manner in which they are applied have been significantly revised. While any mandatory scheme raises these concerns, they are particularly pressing where state or local mandates are codified because such codified laws are by their nature more difficult to adjust to respond to changing priorities of the Federal Government.34
Because SB4 conflicts with or skews § 1357(g)’s delicate balance of statutory
objectives to utilize only certified-trained, knowledgeable, closely-supervised (by
federal officials) immigration officers to enforce federal immigration law, federal law
preempts Art. 2.251 [Code of Criminal Procedure], § 39.07 [Texas Penal Code],
§ 87.031 [Local Gov’t Code], and §§ 752.053(a), (b)(1), (b)(2)(B). 752.055, 752.056,
752.0565 [Gov’t Code] of SB4. These provisions are, therefore, of no effect.35
There is no set of circumstance under which SB4 could operate constitutionally.
Since Houston is not the federal government, it does not currently provide training to
itselected or appointed officials, or employees, including its police officers, regarding
federal immigration enforcement.36 Even if Houston did provide some immigration
enforcement training, however, it could never mandate the U.S. Attorney General’s
34 DHS, supra note 25, at 9-10. 35 See Buckman, 531 U.S. at 348. 36 Houston, however, does provide training and policies regarding probable cause, warrants, and lawful searches and seizures unrelated to federal immigration law. See Exh. A, ¶¶ 16-17.
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training, direct supervision of its officers, or require that he or she certify them as trained.37 Moreover, SB4 could never provide the choice to local governments that §1357(g)(5)providesastowhetherlocalenforcement willbemandatory orvoluntary. Finally, SB4 deprives cities and the federal government of the ability to prevent a finding of liability against them for torts and similar claims or to have the federal government takelegal responsibility when local police act as immigration officers. Id. The listed provisions of SB4 are, therefore, preempted.
C. Texas’ and the Government’s Preemption Responses are Misdirected, Baseless, or Both
Both Texas and the Government offer similar responses to Plaintiffs’ various preemption arguments.38 None has merit.
1. No Deference is Due the Government’s Views on SB4’s Preemptive Effect or Its Statement of Interest
It is well-settled that where, as here, the federal government has so dramatically changed its position [at least in its Statement of Interest] with regard to the constitutionalityof statelaws, itsviewsonthepreemptiveeffectof federalstatutes are entitled to no deference whatsoever. In Wyeth v. Levine, 555 U.S. at 581, the Supreme Court held that “the United States’ amicus brief is similarly undeserving of deference.” Id. (emphasis supplied). It explained: “Unlike the Government’s brief in Geier v. American
37SeePLIVA,Inc.v.Mensing, 564 U.S. 604, 623-24 (2011) (“[w]hen a party cannot satisfy itsstateduties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes”). 38 Texas will also have the opportunity to respond to the arguments Houston makes here under the court’s June 30 briefing order.
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Honda Motor Co., 529 U.S. 861 (2000), which explained the effects of state law on the DOT’s regulation in a manner consistent with the agency’s prior accounts … the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case.”39
Here, the Government’s Guidance, see supra note 25, demonstrate its longstanding interpretation of the federal immigration laws. Its Statement of Interest, however, departs markedly from those views. This court should, therefore, disregard it here, along with the Government’s views on the preemptive effect of SB4 on the federal immigration laws it contains. If, however, this court gives the Government’s statement any deference Houston would respond as follows:
2. SB4’s Penalties and Mandates Are Not Merely a “Matter of Internal State Management”
Both Texas and the Government argue that the penalties and mandates SB4 imposes do not create a preemption issue but create only a “matter of state management;” therefore, “a state may direct the operations of its officials and discipline them for failing to comply with the state direction without implicating federal preemption principles or requiring federal approval.”40 Nothing in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), which the Government cites for this notion, supports it, including the language it quotes and takes badly out of context. Instead, all of thecasestheGovernmentcitesaddress whether, without anexplicitreferenceto
39 Wyeth, 555 U.S. at 581 (emphasis supplied). 40 Statement of Interest of the United States [Doc. 90] (“Statement of Interest”) at 22 (emphasis supplied).
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political subdivisions in the statute, cities can assert federal statutory rights delegated
to states.41 Thus, in Mortier, a case seeking to hold state and local pesticide regulations
preempted by federal law, the Court upheld local governments’ power to regulate
pesticides, a power granted specifically to states, because the application of ordinary
preemption principles did not reveal an unconstitutional conflict. The case does not
discuss in any manner a state’s disciplining a city like an errant schoolchild.
Second, the Fifth Circuit has held, in the very cases the Government cites, that
similar encroachment upon local authority was not the minimal management of state
affairs the Government would dismiss here. To the contrary, in Koog, 79 F.3d at 461
(emphasis supplied), the Fifth Circuit explained:
our understanding of the principles of federalism does not permit us to characterize the Brady [gun control] Act as a ‘minimal interference with state functions.’ We do not consider it a minimal interference when a local sheriff or chief of police is offered no choice but to devote purely local manpower and monetary resources to check the backgrounds of countless applicants for handgun purchases.
Worse, in a footnote to its Statement of Interest, the Government cites an 84-
year old Supreme Court case apparently to preserve the argument that cities somehow
41 Indeed, the very sentence before the one quoted by the Government states: “Properly read, the statutory language tilts in favor of local regulation.” Id. at 607. See also Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 433 (2002) (“[r]eading § 14501(c)’s set of exceptions [some including political subdivisions and some not] in combination … we conclude that the statute does not provide the requisite “clear and manifest indication that Congress sought to supplant local authority”); Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996) (in a case involving challenge by local law enforcement officers to the mandates of federal gun control law, the court held such mandates unconstitutional in part, stating merely that states have a say in the matter). Neither case, however, stands for the proposition that cities have no rights to complain of draconian state penalties for failure to comply with federal direction or of the unconstitutionality or preemption of state law that directly affects them.
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lack standing to sue the states that “created” them.42 The Government’s argument,
however, misstates binding federal law in the Fifth Circuit.
In Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979), cert. denied 444 U.S. 827
(1979), the court held that a school district could bring an action, alleging federal
preemption, againstthe Stateof Texas and others to challengethe constitutionalityof
state statutes that required certain districts to participate in federal-subsidized breakfast
programs. Addressing cases like Williams v. Mayor, the court explained:
The SupremeCourtitself said, in a somewhatdifferent contextfrom that facing us here, that ‘a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.’ Gomillion v. Lightfoot, 364 U.S. 339, 344, 81 S. Ct. 125, 128, 5 L. Ed. 2d 110 (1960). We agree. We think these cases are substantive interpretations of the constitutional provisions involved; we do not think they hold that a municipality never has standing to sue the state of which it is a creature. In fact, correctly interpreted, these cases do not deal with “standing,” in the sense in which we use the term, at all.
Id. at 1068 (emphasis supplied). More recently, the Fifth Circuit has reaffirmed that,
“although some circuits have followed a per se rulethatpolitical subdivisions may not
sue their parent states under any constitutional provision, that is not the rule in this circuit.”43
Equally important, cities’ ability to assert challenges under the Supremacy
Clauseisparticularlyimportantwhere, ashere, theremedy soughtis only prospective
42 Id. at 22, n.13, citing Williams v. Mayor, 289 U.S. 36, 40 (1933). 43 Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir. 2008).
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injunctive relief, not money damages. As the Court explained in Green v. Mansour, 474
U.S. 64, 68 (1985) “the availability of prospective relief of the sort awarded in Ex parte
Young gives life to the Supremacy Clause. Remedies designed to end a continuing
violation of federal law are necessary to vindicate the federal interest in assuring the
supremacy of that law.”44
Finally, Houston has standing to assert federal preemption against Texas
because of the Supremacy Clause’s unique nature. “The Supremacy Clause is ‘not a
sourceof anyfederalrights’butratheroperat[es]to‘securefederalrightsbyaccording
them priority whenever they come in conflict with state law.’ That is, a plaintiff
allegingaSupremacyClauseclaimisactuallyallegingarightunder someotherfederal
law, which trumps a contrary state law by operation of the Supremacy Clause.” 45
44 Id. at 68 (citing Ex parte Young, 209 U.S .123, 155-56, 159 (1908)). 45 City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1256 (10th Cir. 2011) (quoting Chapman v. Hous. WelfareRightsOrg.,441U.S.600, 613(1979)).There is also agoodargument,madein learned treatises and academic articles, that cities also possess independent constitutional status under the Tenth Amendment to the U.S. Constitution, which reserves powers not delegated to the United States “to the States, respectively, or to the people.” (Emphasis supplied). Under long-standing principles of statutory construction, “the people” in this context must mean something other than the states. The phrase also cannot be treated as mere constitutional surplusage. At the time the Constitution was drafted, Thomas Jefferson, Alexis de Toqueville, and others considered cities and town to be “little republics,” “repositories of popular sovereignty through which citizens decided the most fundament political questions.” Jake Sullivan, Comment, The Tenth Amendment and Local Government, 112 Yale L.J. 1935, 1940 & n.31 (May 2003). Several influential writers have, therefore, posited that the Tenth Amendment’s reference “to the people” was to cities and towns because it “presupposed the existence of cities and towns as important political communities through which people expressed their will and exercised various powers.” Id. at 1941 & n.34 (emphasis in original), (citing Richard Briffault, Our Localism: Part I―The Structure of Local Government Law, 90 Colum. L. Rev. 1, 89 (1990)); see also Annie Decker, Preemption Conflation: Dividing the Local from the State in Congressional Decision Making, 30 Yale L. & Policy Rev. 321, 350 (Spring 2012) (citing Sullivan and others, she argues that “the Tenth Amendment can be read to preserve the right of local self-determination, seeing local governments as the best vehicle for expression of the people’s will. Similarly, looking beyond the Constitution’s textual silence,othershave argued thatlocal governmentshave aform ofsovereignty apartfrom thestates”); Amasa M. Eaton, The Right to Local Self-Government, 13 Harv. L. Rev. 441 (Feb. 1900) (arguing that cities and towns reserved their right to self-government long before the Constitution was drafted).
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3. The Government’s “Cooperation” Arguments Ignore the Operative Provisions of § 1357(g) and its Own Guidance
The Government’s preemption arguments, at pages 20-21 of its Statement of Interest,likeTexas’s argumentsinitsmemorandum, andtheargumentsof both atthe court’shearing, suggestthatthere isnoconflictbetweenSB4 andfederal immigration law because all SB4 requires is the mere cooperation and communication already provided for in § 1357(g)(10). To embrace this argument, this court must believe that the rest of § 1357(g)’s requirements have somehow been nullified by § 1357(g)(10) and that SB4’s punitive provisions are actually toothless. Moreover, this court must also believe that SB4 requires something that the Government would consider to be “cooperation” under the federal immigration laws. None of these assumptions is grounded in reality or federal law.
First, as set forth in Section I(B)(1) above, the Government’s expansive interpretation of § 1357(g)(10) runs counter to the plain language of § 1357(g), its structure and purposes, bedrock principles of statutory interpretation, the Government’s own Guidance, and the Ninth Circuit. Subsection 1357(g)(10) simply cannot be read properly to negate all the other subsections of § 1357(g). Yet that is precisely how the Government and Texas would interpret the provision here.
Second, also as set forth above, SB4 expressly empowers local officers to perform the functions of immigration officers, not merely to cooperate and communicate with them. The Texas Legislature made this distinction clear when it separated those functions in Tex. Gov’t Code § 753.053(b)(1), which empowers
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officers to inquire “into the immigration status of a person under lawful arrest or
detention” and, § 753.053(b)(3), which addresses “assisting and cooperating with
federal immigration officers.” Moreover, § 1357(a)(1) sets forth the functions of
immigration officers and SB4 requires that local officers perform them on a regular
and systematic basis. That is not cooperation: it isconscription.
Third, the Government’s own published Guidance, earlier versions of which
were cited in Arizona, 567 U.S. at 410, eviscerate its arguments here. First, its definition
of “cooperate” in § 1357(g)(10)(B) excludes the very activities SB4 requires. For example,
its Guidance defines the term “cooperate” as
the rendering of assistance by state and local officers to federal officials, in the latter officials’ enforcement of the INA, in a manner that maintains the ability to conform to the policies and priorities of DHS and that ensures that individual state and local officers are at all times in a position to be— and, when requested, are in fact—responsive to the direction and guidance of federal officials charged with implementing and enforcing the immigration laws.46
More important, the Government does not consider it “cooperation” when a state or
localgovernment thwartsitsgoals, schemes, orprocesses as SB4 inevitably does.
[t]o constitute genuine cooperation as contemplated by 8 U.S.C. § 1357(g)(10), state or local governments must not systematically act in a way that conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate. States may not act with the aim or effect of altering the Federal Government’s prioritization or balancing of different goals—such as by effectively compelling the Federal Government to address certain ends or by furthering those ends while disregarding others, or by attempting to frustrate the Federal Government’s accomplishment of one end to advance other ends. In other words, when states attempt to act in the immigration arena, their actions cannot disrupt or interfere with the Federal Government’s pursuit of its multiple, inter-related goals.
46 DHS, supra note 25, at 8 (emphasis supplied).
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Id. at 10 (emphasis supplied). Most important, in discussing the need for federal
primacy in immigration enforcement, the Government’s Guidance states:
The INA’s ‘cooperation’ requirement means that a state or local government may not adopt its own mandatory set of directives to implement the state’s own enforcement policies, because such a mandate would serve as an obstacle to the ability of individual state and local officers to cooperate with federal officers administering federal policies and discretion as the circumstances require. State or local laws or actions that are not responsive to federal control or direction, or categorically demand enforcement in such a way as to deprive the Federal Government—and state and local officers—of the flexibility and discretion that animates the Federal Government’s ability to globally supervise immigration enforcement, do not constitute the requisite ‘cooperation’ within the meaning of 8 U.S.C. § 1357(g)(10)(B), even if the state or local government’s own purpose is to enforce federal immigration law.
Id. at 8 (emphasis supplied). The Government reinforces this notion in the website’s
language introducing this document. It states: “for a state or local government to act
systematically on a matter that affects immigration enforcement, however, that action
has to be consistent with the comprehensive regulatory regime of the INA, which requires such state enforcement efforts be responsive to the policies and priorities set by DHS.”47
There is, therefore, nothing about what SB4 actually does― turn Texas’ local law
enforcement officers into a rump federal enforcement force, far outside the purview of
DHS and not trained or supervised by them―that would constitute “cooperation”
under even the Government’s own definition of the term.
In this regard, in its Statement, the Government rewrites § 1357(g)(10) to
assume that the cooperation required is cooperation between individual officers and
47 DHS, supra note 25 (website introduction) (emphasis supplied).
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ICE and its individual agents. The statute, however, refers to cooperation and communication with the Attorney General. They are not the same thing. The Government’s Guidance make clear that § 1357(g)(10) merely reinforces federal policymaking primacy. “The text of the statute [§ 1357(g)] makes clear that state and local governments may not adopt and implement their own enforcement programs based on their own assessment of what is appropriate for administering the INA, separate and apart from what the Secretary has established and oversees. Thus 8 U.S.C. § 1357(g)(10)(B) refers to states cooperating ‘with the [Secretary]’ (emphasis in original), the federal officer charged by Congress with the administration of the INA.”48
Fourth, although the Government glosses over the mandatory character of the alleged “cooperation” coerced here, § 1357(g)(5), which requires U.S. Attorney General and cities to decide jointly what enforcement activities will be mandatory or voluntary, and the Supremacy Clause do not. Indeed, courts have found conflict preemption where only the technique of enforcement varied.
In Arizona, for example, the court found § 5(C) of the state’s immigration law preempted on its face, even though it attempted to achieve the same goals as federal law, because it involved a conflict in the method of enforcement.49 The Court recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.”50 That is particularly true where, as here,
48 Id. at 8-9. 49 Arizona, 567 U.S. at 406. 50 Id. (citing Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971)).
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Texas purports to do in SB4 what the federal government is absolutely, constitutionally prohibited from doing: mandating that local authorities enforce federal law.51 By nullifying § 1357(g)(5)’s choice of mandatory or voluntary enforcement activities, § 1357(g)’s voluntary contracts, and substituting draconian penalties to ensure compliance, SB4 substantially changes the techniques Texas and the Government may use to enforce locally federal immigration laws. Thus, even if Texas is right about cooperation―and it is not―SB4’s operative provisions are still preempted.
Texas’ cannot escape the mandatory nature of SB4―and preemption―by claiming that prohibiting a prohibition on immigration inquiries, combined with extraordinarily stiff penalties for any infraction, including barring speech critical of SB4 or the policies it mandates, somehow renders a police officer’s inquiry into a person’s immigration status voluntary, cooperative, or anything but the product of the rankest, most naked kind of coercion. Instead, by changing so dramatically the method by which local governments must deal with federal immigration enforcement, the Texas Legislature has doomed SB4 to inevitable preemption.
4. The Government’s Argument that Federal Law is Not in Conflict with SB4 Because It Does Not Prohibit Inquiring About Immigration Status is Misdirected
In its final preemption response, the Government claims that Arizona permitsa law that imposes a mandatory obligation to inquire about immigration status. It doesn’t.
51 See Koog, 79 F.3d at 461 (“we believe that permitting Congress to circumvent the coercion principle by issuing commands directly to state and local officials critically diminishes the separate and sovereign dignity of the States recognized by New York); see also Commissions Imp. Exp. S.A. v. Republic of the Congo, 757 F.3d 321, 326 (D.C. Cir. 2014) (citing Arizona).
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First, Arizona’s § 2(B) differs from SB4’s § 752.053 in that § 2(B) left considerable discretion in the hands of local officers to make “reasonable attempts” to determine immigration status based upon a “reasonable suspicion” that the person was unlawfully in the United States. 567 U.S. at 411. SB4 includes no such provisions and, infact,wouldimposeharshpenalties onany lawmakerorsupervisor who wouldallow such discretion. Instead, status checks under SB4 are effectively mandatory in virtually all circumstances. Arizona never countenanced SB4’s unyielding requirements.
Second, in the Supreme Court, the Government’s objection to SB4 was not that itconflictedwiththeenforcementscheme setforthin§1357(g).Althoughithadraised that argument in the Ninth Circuit, by the time the case reached the Supreme Court, the Government focused on § 2(B)’s interference with its deferred action programs and other enforcement priorities. Id. at 412. As a result, the Court focused more on the communication requirement of § 2(B) than on the mandatory inquiry provision and concluded that “the federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.” Id. at 413 (emphasis added).
The Government’s own Guidance, however, makes clear that such routine contact is not equivalent to routine interrogation about immigration status.
there is an important distinction between communication of alien-status information between a state or local government and DHS, and the original acquisition of information by the state or local officer from an individual. The terms ‘[t]o communicate’ and ‘report’ in 8 U.S.C. 1357(g)(10)(A) encompass only the specific act of exchanging information with DHS; that provision does not, in itself, provide a state or local officer with additional authority to investigate an individual’s immigration status so as to acquire
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information that might be communicated to DHS. Nor does 8 U.S.C. § 1373, by itself, provide the state or local officers with that additional authority.52 Thus, nothing in Arizona authorizes the mandatory, routine interrogation about immigration status that SB4 requires. II. SB4 VIOLATES THE HOME-RULE PROVISIONS OF TEXAS CONSTITUTION ART. XI, § 553 TheCourt may takejudicialnoticethat Houstonisahome-rulecity.54Itscharter describes the procedure under which local officials, including a Mayor and City Council, are elected and removed from office.55 It also reserves to Houston and its governing body all constitutional home-rule authority, including the discretion to allocate resources and determine its own priorities in promoting the welfare, health, prosperity, comfort, public safety, and convenience of all Houstonians.56 Under the Texas Constitution, art. XI, § 5, home-rule cities such as Houston possessthefullpower of self-government and“looktotheLegislaturenotfor grantsof power, butonly forlimitationsontheirpower.”57UnlikethefederalSupremacy clause, however, the State of Texas, under art. XI, § 5, may not simply legislate and expect
52 See DHS, supra note 25. at 12. 53 The motion/application of the City of Austin raises a home-rule argument that would encompass Houston’s argument here. See Dkt. 57, at 18-19. 54 See, e.g., Houston, Tex., City Charter, Art. II, § 2(b). 55 Id. at Art. V, et seq. 56 Id. at Art. II, § 2(a). 57 See Dallas Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993).
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cities to defer.58 Instead, a city must defer only to the extent that its law conflicts with the state statute.
The Stateof Texashasimposedno regulationsof itsownthatconflictwiththose imposed by municipalities. Instead, the State of Texas now purports to tell municipalities how to exercise power that was conferred on them by the federal government and the State Constitution that the cities still retain. The Texas Constitution’s home-rule provision does not permit such micro-management.
SB4 and, in particular, § 752.0565 [Gov’t Code] of SB4, entitled “Removal from Office,” also violates the Home Rule provision of the Texas Constitution, art. XI, § 5, by improperly denying Houston the power of self-government, including the right to elect and remove local officials, by misusing and misapplying quo warranto proceedings in a situation for which they were never intended or suited.
SB4 also violates art. XI, § 5, by improperly infringing Houston’s right to determine for itself how to exercise its own police power. Under the Houston City Charter, art. XVI, § 1: “The City of Houston shall have power by ordinance duly passed to establish and maintain the City Police Department, prescribe the duties of policemen andregulatetheir conduct.”In addition, art. VI, §7a givesHouston’smayor the power to appoint and remove heads of departments.
Pursuant to such provisions, § 34-22 of Houston’s Code of Ordinances states: “There is hereby created the office of the chief of police in the police department of the
58 City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990).
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city. The chief of police shall be appointed by the mayor and confirmed by the city council. Subject only to the orders and actions of the city council and mayor, the chief of police shall be the executive officer and director of the police department. He shall havemanagementof thedepartment, shallexerciseallof thefunctionsassignedtothe department,andshallcarryouttheprovisionsof lawandof ordinanceswithrespectto such functions.”
Neither the United States nor Texas Constitutions grant the Texas Legislature any authority to regulate the immigration status of foreign nationals. To the extent that SB4 seeks to regulate the manner in which Houston provides for the public health and safety of all of its residents and visitors, including foreign nationals, SB4 is an unconstitutional violation of Houston’s home-rule authority.
Finally, by arbitrarily imposing unduly burdensome and oppressive harms on Houston, its officials, its employees, and its residents, and by substantially restricting protected conduct including freedoms of expression, association, and travel, SB4 is not rationally related to any legitimate governmentalinterest. III. SB4 VIOLATES THE FIRST AMENDMENT AND TEXAS
CONSTITUTION ART. I, § 8 Houston adopts the First Amendment and Texas constitutional equivalents’ arguments and evidence submitted by the cities of El Cenizo, El Paso, Austin, and San Antonio in connection with their motions/applications for preliminary injunction. SB4 violates the constitutional provisions because it penalizes the protected speech of local officials who “endorse” a “policy,” even an “informal, unwritten policy,” that
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would contradict SB4’s mandates, and is unconstitutionally overbroad by including vague terms, such as “materially limit,” “custody,” “endorse,” “informal or unwritten policy,” Houston asks the court to enjoin SB4, and, in particular, §§ 752.053(a)(1),752.055-56, 752.0565 [Gov’t Code] of SB4, as violative of the First Amendment, as applied to the States through the Fourteenth Amendment, and art. I, § 8 of the Texas Constitution. IV. SB4 VIOLATES THE FOURTH AMENDMENT AND THE TEXAS
CONSTITUTION, ART. I, § 9 Houston adopts the Fourth Amendment arguments and evidence submitted by the cities of El Cenizo and El Paso in connection with their application for preliminary injunction. In particular, Houston is aware the El Cenizo plaintiffs are addressing the question of cities’ standing to raise Fourth Amendment issues, Houston agree with and adopts their view that plaintiffs standing to raise these issues because police officials cannot be made to choose between complying with SB4 and violating the Fourth Amendment, on the one hand, or disobeying SB4 and subjecting themselves to jail and removal from office, on the other. V. SB4 VIOLATES THE FOURTEENTH AMENDMENT EQUAL PROTECTION AND DUE PROCESS CLAUSES AND TEXAS CONSTITUTION ARTS. I, §§ 3 & 9 Houston adopts the Fourteenth Amendment Equal Protection and Due Process, and Texas equivalents’ arguments and evidence submitted by the cities of El Cenizo and El Paso in connection with their application for preliminary injunction.
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SB4 and, in particular, § 752.053(b) [Gov’t Code] of SB4, impermissibly invites police officers to engage in unconstitutional investigative practices, including profiling based upon race, ethnicity, national origin, and perceived status. SB4 prevents all legislative, executive, or judicial action at the local level that is designed to protect or even guide individual police officers in enforcing laws affecting immigrants as such. BecauseSB4failstopresentany cognizableGuidanceforenforcementof suspectedcivil immigration violations, SB4’s purported “savings clause,” id. at § 752.059, is illusory. SB4 cannot be constitutionally applied and should be enjoined in its entirety.
As set forth in in El Paso’s application, SB4’s citizen reporting provision, § 752.055, treats citizens and lawful immigrants differently, according privileges to citizens alone. There is no constitutional basis for this discriminatory treatment. Moreover, state-compelled enforcement of federal immigration laws is not a compelling interest that justifies such race-based discrimination. SB4 is not narrowly-tailored, and is not the least restrictive means of achieving the requisite governmental interest, if any.
There is likewise no rational basis for removing immigration enforcement from any control or guidance by police, chiefs, sheriffs, other local leaders, ICE itself, or the U.S. Attorney General as provided by contract by federal law. See 8 U.S.C. § 1357(g). This is a narrowly-tailored alternative that avoids the constitutional infirmities of SB4.
PRAYER FOR RELIEF The City of Houston respectfully request that the court enter a preliminary injunction barring Texas from enforcing SB4 in whole or in part.
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Respectfully submitted, CITY OF HOUSTON LEGAL DEPARTMENT

By: /s/ Collyn A. Peddie

RONALD C. LEWIS

**

City Attorney

State Bar No.: 12305450

ronald.lewis@houstontx.gov

Judith L. Ramsey

Chief, General Litigation Division

State Bar No.: 16519550

judith.ramsey@houstontx.gov

Patricia L. Casey

Sr. Assistant City Attorney

State Bar No.: 03959075

pat.casey@houstontx.gov

Connica Lemond

Sr. Assistant City Attorney

State Bar No.: 24031937

connica.lemond@houstontx.gov

Collyn Peddie

Sr. Assistant City Attorney

State Bar No.: 15707300

collyn.peddie@houstontx.gov

Fernando De Leon

Sr. Assistant City Attorney

State Bar No.: 24025325

fernando.deleon2@houstontx.gov

900 Bagby, 4th Floor

Houston, Texas 77002

832.393.6491 - Telephone

832.393.6259 – Fascimile

Attorneys for Intervenors, City of Houston

Pending Pro Hac Vice Permission **

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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 49 of 54

CERTIFICATE OF SERVICE
I hereby certify that on July 10th, 2017, I served the following attorneys with a true and correct copy of the foregoing document in accordance with Rule 5(b) of the Federal Rules of Civil Procedure.

/s/ Collyn A. Peddie Collyn A. Peddie

ATTORNEYS FOR EL CENIZO PLAINTIFFS:

Andre I. Segura asegura@aclu.org

Omar C. Jadwat ojadwat@aclu.org

Spencer Amdur samdur@aclu.org

Lee Gelernt

lgelernt@aclu.org

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street

New York, New York 10004

212.549.2676 – Telephone

212.549.2654 – Facsimile

Cody Wofsy

cwofsy@aclu.org

Stephen B. Kang skang@aclu.org

Cecillia D. Wang cwang@aclu.org

AMERICAN CIVIL LIBERTIES UNION

39 Drumm Street

San Francisco, California 94111

415.343.0785 – Telephone

415.395.0950 – Facsimile

Edgar Saldivar esaldivar@aclutx.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS P.O. Box 8306 Houston, Texas 77288 713.325.7011 – Telephone 713.942.8966 – Facsimile

Max Renea Hicks rhicks@renea-hicks.com LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, Texas 78703 512.480.8231 – Telephone

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Luis Roberto Vera, Jr. lrvlaw@sbcglobal.net LAW OFFICES OF LUIS ROBERTO VERA & ASSOCIATES, P.C. 111 Soledad, Suite 1325 San Antonio, Texas 78205-2260 210.225.3300 – Telephone 210.225.2060 – Facsimile

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:

Jo Anne Bernal

joanne.bernal@ca.epcounty.com

EL PASO COUNTY ATTORNEY

El Paso County Bldg.

500 E. San Antonio St., Room 203

El Paso, Texas 79901-2419

915.546.2083 – Telephone

915.546.2133 – Facsimile

Jose Garza

jgarza@trla.org

LAW OFFICE OF JOSE GARZA

7414 Robin Rest Dr.

San Antonio, Texas 78209

210.392.2856 – Telephone

Michael Patrick Moran michael@ggmtx.com GARZA GOLANDO MORAN, PLLC 115 E. Travis Street, Suite 1235 San Antonio, Texas 78205 210.892.8543 – Telephone

ATTORNEYS FOR TEXAS ORGANIZING PROJECT EDUCATION FUND PLAINTIFFS:

Efren Carlos Olivares efren@texascivilrightsproject.org TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Alamo, Texas 78516 956.787.8171 – Telephone 956.787.6348 – Facsimile

Mimi M.D. Marziani mimi@texascivilrightsproject.org TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive

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Austin, Texas 78741 512.474.5073 – Telephone 512.474.0726 – Facsimile

ATTORNEYS FOR SAN ANTONIO PLAINTIFFS:

Deborah L. Klein

deborah.klein@sanantonio.gov

OFFICE OF THE CITY ATTORNEY, LITIGATION DIVISION

Frost Bank tower

100 West Houston Street, 18th Floor

San Antonio, Texas 78205-3966

210.207.8919 – Telephone

210.207.4357 – Facsimile

Andrea E. Senteno

asenteno@maldef.org

Celina Y. Moreno

cmoreno@maldef.org

Marisa Bono

mbono@maldef.org

Nina Perales

nperales@maldef.org

Tanya g. Pellegrini

tpellegrini@maldef.org

John Paul Salmon

jsalmon@maldef.org

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF)

110 Broadway, Suite 300

San Antonio, Texas 78205

202.293.2828 – Telephone

202.293.2849 – Facsimile

Thomas A. Saenz

tsaenz@maldef.org

MALDEF

634 S. Spring Street, 11th Floor

Los Angeles, California 90014

213.629.2512 – Telephone

213.629.0266 – Facsimile

Cory D. Szczepanik

cszczepanik@sidley.com

Yolanda Cornejo Garcia ygarcia@sidley.com

SIDLEY AUSTIN, LLP

2021 McKinney Avenue, Suite 200

Dallas, Texas 75201

214.981.3300 – Telephone

214.981.3400 – Facsimile

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Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 52 of 54

Jose F. Sanchez

jose.sanchez@sidley.com

SIDLEY AUSTIN, LLP

555 West Fifth Street

Los Angeles, California 90013

213.896.6000 – Telephone

213.896.6600 – Facsimile

ATTORNEYS FOR CITY OF AUSTIN INTERVENORS:

Christopher J. Coppola christopher.coppola@austintexas.gov

Michael J. Siegel

michael.siegel@austintexas.gov

CITY OF AUSTIN

P.O. Box 1546

Austin, Texas78767

512.974.2161 – Telephone

512.974.1311 – Facsimile

ATTORNEYS FOR TRAVIS COUNTY INTERVENORS:

Anthony J. Nelson

tony.nelson@traviscountytx.gov

Laurie R. Eiserloh

laurie.eiserloh@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

314 West 11th Street, Room 590

Austin, Texas 78701

512.854.4801 – Telephone

512.854.4808 – Facsimile

Sharon Talley

sharon.talley@traviscountytx.gov

Sherine E. Thomas

sherine.thomas@traviscountytx.gov

Tim Labadie

tim.labadie@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

P.O. Box 1748

Austin, Texas78767

512.854.9513 – Telephone

512.854.4808 – Facsimile

ATTORNEYS FOR CITY OF DALLAS INTERVENORS:

Charles S. Estee

charles.estee@dallascityhall.com

DALLAS CITY ATTORNEY OFFICE

1500 Marilla, 7DN

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Dallas, Texas 75201 214.670.3499 – Telephone 214.670.0622 – Facsimile

ATTORNEYS FOR TEXAS ASSOCIAITON OF HISPANIC COUNTY JUDGES & COUNTY COMMISSIONERS INTERVENORS:

Rolando L. Rios

rrios@rolandorioslaw.com

Law Offices of Rolando L. Rios

115 E. Travis Street, Suite 1645

San Antonio, Texas 78205

210.222.2102 – Telephone

210.222.2898 – Facsimile

ATTORNEYS FOR DEFENDANTS:

Adam Arthur Biggs

adam.biggs@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

300 W. 15th Street

Austin, Texas 78701

512.463.2120 – Telephone

512.320.0667 – Facsimile

Brantley Starr

brantley.starr@oag.texas.gov

Deputy First Assistant Attorney General

William T. Deane

bill.deane@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548, Capital Station

Austin, Texas 78711

512.936.8160 – Telephone

512.936.0545 – Facsimile

Joel Stonedale

joel.stonedale@oag.texas.gov

Andrew D. Leonie, III leonie@texasattorneygeneral.gov

David J. Hacker

david.hacker@oag.texas.gov

David A. Nimocks

austin.nimocks@oag.texas.gov

Joel Stonedale

joel.stonedale@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

209 W. 14th St., 8th Floor

Austin, Texas 78701

512.475.3281 – Telephone

Darren L. McCarty

darren.mccarty@oag.texas.gov

45

Case 5:17-cv-00404-OLG Document 150 Filed 07/10/17 Page 54 of 54 OFFICE OF TEXAS ATTORNEY GENERAL Executive Administration 240 W. 14th Street, 7th Floor Austin, Texas 78701 512.936.0594 – Telephone 512.936.0545 – Facsimile
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 Case 5:17-cv-00404-OLG Document 170 Filed 07/20/17 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas, et al.., Plaintiffs, v.
Texas, et al., Respondents.

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Civil Action No. 5:17-cv-404-OLG

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SUPPLEMENTAL STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES

CHAD A. READLER Acting Asst. Attorney Gen.
WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section
Dated July 20, 2017

EREZ REUVENI Senior Litigation Counsel U.S. Dept. of Justice Civil Division, 450 5th St. NW Washington D.C. 20530 Tel: 202-307-4293 Email: Erez.r.reuveni@usdoj.gov
Counsel for the United States

Case 5:17-cv-00404-OLG Document 170 Filed 07/20/17 Page 2 of 22
CASE LAW	   Abel v. United States,
362 U.S. 217 (1960) .................................................................................................................... 7
Andrews v. State, 962 So. 2d 971 (Fla. Dist. Ct. App. 2007)................................................................................. 10
Arizona v. United States, 567 U.S. 387 (2012) ........................................................................................................... passim
Arkansas v. Sullivan, 532 U.S. 769 (2001) .................................................................................................................. 11
Ashcroft v. al-Kidd 563 U.S. 731 (2011) .................................................................................................................... 8
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) .................................................................................................... 1, 7, 11, 12
Bruce v. Guernsey, 777 F.3d 872 (7th Cir.2015) ........................................................................................................ 9
Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158 (S.D. Ind. Mar. 28, 2013)........................... 4
Carlson v. Landon, 342 U.S. 524 (1952) .................................................................................................................... 5
Chavez v. City of Petaluma, No. 14-CV-5038, 2015 WL 6152479 (N.D. Cal. Oct. 20, 2015) .............................................. 10
City of N.Y. v. United States, 179 F.3d 29 (2d Cir. 1999) .......................................................................................................... 1
Com. v. Leet, 537 Pa. 89 (1994)......................................................................................................................... 1
De La Paz v. Coy, 786 F.3d 367 (5th Cir. 2015) ....................................................................................................... 6
Demore v. Kim, 538 U.S. 510 (2003) .................................................................................................................... 6
i

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Dep't of Pub. Safety v. Berg, 342 Md. 126 (1996) ..................................................................................................................... 2
Dunaway v. New York, 442 U.S. 200 (1979) .................................................................................................................. 11
Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309 (D. Me. 1976).............................................................................................. 10
Gardner v. Cal. Highway Patrol, No. 2:14-CV-2730, 2015 WL 4456191 (E.D. Cal. July 20, 2015)............................................ 10
Gerstein v. Pugh, 420 U.S. 103 (1975) .................................................................................................................... 6
Gonzalez v. ICE, No. 13-4416, 2017 WL 2559616 (C.D. Cal. June 12, 2017)............................................................................. 6
Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000) ..................................................................................................... 10
I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984) .................................................................................................................. 5
Johnson v. Phillips, 664 F.3d 232 (10th Cir. 2008) ................................................................................................... 12
Koog v. United States, 79 F.3d 452 (5th Cir. 1996) ......................................................................................................... 2
Locke v. United States, 11 U.S. (7 Cranch) 339 (1813) .................................................................................................... 7
Lopez v. I.N.S., 758 F.2d 1390 (10th Cir. 1985) ................................................................................................... 7
Manigault v. Springs, 199 U.S. 473 (1905) .................................................................................................................... 1
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) .................................................................................................................... 6
Mayor, Aldermen & Commonalty of City of N.Y. v. Miln, 36 U.S. 102 (1838) ...................................................................................................................... 1
ii

Case 5:17-cv-00404-OLG Document 170 Filed 07/20/17 Page 4 of 22
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ....................................................................................................... 4
Messerchmidt v. Millender, 565 U.S. 535 (2012) .................................................................................................................... 8
Moreno v. Napolitano, 213 F. Supp. 3d (N.D. Ill. 2016)................................................................................................. 7
Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995) ......................................................................................................... 6
Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013) ....................................................................................................... 4
Soldal v. Cook Cnty., 506 U.S. 56 (1992) ...................................................................................................................... 8
State v. Stahl, 838 P.2d 1193 (Wy. 1992)........................................................................................................... 1
Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819) .................................................................................................... 1
Thomas v. City of Peoria, 580 F.3d 633 (7th Cir. 2009) ................................................................................................. 8, 12
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ................................................................................................... 8
United States v. Bernacet, 724 F.3d 269 (2d Cir. 2013) ...................................................................................................... 11
United States v. Brobst, 558 F.3d 982 (9th Cir. 2009) ..................................................................................................... 11
United States v. Burtton, 599 F.3d 823 (8th Cir.2010) .................................................................................................. 9, 12
United States v. Cardona, 903 F.2d 60, (1st Cir. 1990)......................................................................................................... 9
United States v. Comstock, 560 U.S. 126 (2010) .................................................................................................................... 8
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Case 5:17-cv-00404-OLG Document 170 Filed 07/20/17 Page 5 of 22
United States v. Duka, 671 F.3d 329 (3d Cir.2011) ......................................................................................................... 9
United States v. Gilmore, 776 F.3d 765 (10th Cir. 2015) ..................................................................................................... 9
United States v. Lucas, 499 F.3d 769 (8th Cir. 2007) ..................................................................................................... 10
United States v. Ovando-Garzo, 752 F.3d 1161 (8th Cir. 2014) ................................................................................................. 3, 4
United States v. Perdoma, 621 F.3d 745 (8th Cir. 2010) ....................................................................................................... 8
United States v. Phillips, 834 F.3d 1176 (11th Cir. 2016) ............................................................................................. 7, 12
United States v. Quintana, 623 F.3d 1237 (8th Cir. 2010) ..................................................................................................... 4
United States v. S.C., 906 F. Supp. 2d 463 (D.S.C. 2012) ............................................................................................. 8
United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) ................................................................................................... 2
United States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007) ....................................................................................................... 4
United States v. Timms, 664 F.3d 436 (4th Cir. 2012) ....................................................................................................... 9
Utah Coalition of La Raza v. Herbert, 26 F. Supp. 3d 1125 (D. Utah 2014) ........................................................................................... 8
Virginia v. Moore, 553 U.S. 164 (2008) ................................................................................................ 10, 11, 12, 13
Whren v. United States, 517 U.S. 806 (1996) .................................................................................................................. 11
Williams v. Mayor, 289 U.S. 36 (1933) ...................................................................................................................... 2
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FEDERAL STATUTES	   8 U.S.C. § 1226............................................................................................................................. 13 8 U.S.C. § 1226(a) ................................................................................................................ 4, 5, 12 8 U.S.C. § 1229a ............................................................................................................................. 6 8 U.S.C. § 1231............................................................................................................................. 13 8 U.S.C. § 1231(a) .................................................................................................................... 4, 12 8 U.S.C. § 1252(a) .......................................................................................................................... 6 8 U.S.C. § 1357(g)(1) ..................................................................................................................... 2 8 U.S.C. § 1357(g)(2) ..................................................................................................................... 2 8 U.S.C. § 1357(g)(1)-(9) ............................................................................................................... 3 8 U.S.C. § 1357(g)(10) ................................................................................................................... 3 8 U.S.C. § 1357(g)(10)(B) .......................................................................................................... 2, 4 8 U.S.C. § 1373............................................................................................................................... 8 28 U.S.C. § 517............................................................................................................................... 1
STATE STATUES Texas Code of Criminal Procedure. Article 2.251.......................................................................... 2 Texas Code of Criminal Procedure. Article 2.251(b) ................................................................... 12
MISCELLANEOUS Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related
Matters, https://www.dhs.gov/sites/default/files/publications/guidance-state-local-assistanceimmigration-enforcement.pdf. .................................................................................................... 3 ICE Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers ……..3
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Pursuant to 28 U.S.C. § 517, the United States respectfully submits this supplemental Statement of Interest addressing three points relevant to Senate Bill 4’s (SB 4) detainer provisions raised by the Plaintiffs and amici in their supplemental briefs.
1. “A system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems for the mutual benefit of each system.” City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999). Texas, like any other State, may, as an exercise of its sovereignty, promulgate positive law authorizing state and local law enforcement officers to cooperate with the federal government by making civil arrests premised on a probable cause determination made by Immigration and Customs Enforcement (ICE). In our system of government, States possess broad “police powers,” which are “an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people.” Manigault v. Springs, 199 U.S. 473, 480 (1905). The States’ status as separate sovereigns means they possess all residual powers not abridged or superseded by the United States Constitution. Mayor of New York v. Miln, 36 U.S. 102, 139 (1838). This residual authority preexists any statutory invocation or clarification of that authority by a State’s legislature. See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819) (Marshall, C.J.).
Consistent with these broad police powers, many State legislatures have, from the earliest days of the Republic, defined and regulated the circumstances under which their officers can effectuate arrests. See Atwater v. City of Lago Vista, 532 U.S. 318, 336-38 (2001). But these subsequent statutory developments have generally been construed to supplement—not supplant—each State’s residual, common law authority. See, e.g., Dep’t of Pub. Safety & Correctional Servs. v. Berg, 342 Md. 126, 137-39 (1996); Commonwealth v. Leet, 537 Pa. 89, 96 (1994); State v. Stahl, 838 P.2d 1193, 1196 (Wy. 1992). Such is the case here, where it is beyond
1

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dispute that Texas, through SB 4, has exercised its sovereign authority by affirmatively authorizing local peace officers to make temporary arrests in response to ICE detainer requests, when the subject of those requests is already in local custody. See Texas Code of Criminal Procedure. Article 2.251. And no party to this litigation disputes that absent federal preemption concerns, Texas, like other States, has authority as a sovereign to regulate as it sees fit within its borders, including by regulating its subdivisions, as it has done here.1 See, e.g., Williams v. Mayor, 289 U.S. 36, 40 (1933); Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996).
2. Contrary to plaintiffs’ argument, the Immigration and Nationality Act (INA) does not preempt this provision of SB4. Plaintiffs’ argument regarding preemption is contrary to Arizona v. United States, 567 U.S. 387 (2012). In Arizona, the Supreme Court held that the INA preempted a provision of state law that had “authoriz[ed] state and local officers to engage in [warrantless immigration arrests] as a general matter” without “any input from the Federal Government about whether an arrest is warranted in a particular case.” 567 U.S. at 408, 410.
The Court was clear, however, that State or local detention of aliens for possible removability does not conflict with the INA at least where (1) an agreement with the federal government to assist in the enforcement of the immigration laws exists, see id. at 408-409 (citing 8 U.S.C. 1357(g)(1)); or (2) even absent such an agreement, when the State or locality is “cooperat[ing] with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” id. at 409 (quoting 8 U.S.C. § 1357(g)(10)(B)). Indeed, the Court explicitly distinguished such cooperation from the State law at issue in Arizona, which constituted “unilateral state action” authorizing a “unilateral decision 1 Because Texas has affirmatively authorized its local peace officers to make arrests in response to federal immigration detainer requests, there is no need for this Court to determine if State officers retain inherent authority to make civil immigration arrests, whether or not such authority has been preempted. See, e.g., United States v. Santana-Garcia, 264 F.3d 1188, 1190-94 (10th Cir. 2001); Br. of United States at 18-19 (collecting cases).
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of state officers to arrest an alien for being removable absent any request, approval, or other
instruction from the Federal Government.” Id. at 410, 413 (emphases added) (listing “allow[ing]
federal immigration officials to gain access to detainees held in state facilities” and “responding
to requests for information about when an alien will be released from their custody” as examples of State cooperation with federal immigration enforcement that is not preempted by the INA).2
As Arizona demonstrates, the INA does not preempt State or local cooperation with an
ICE detainer request, see ICE Policy No. 10074.2: Issuance of Immigration Detainers by ICE
Immigration Officers (Mar. 24, 2017), https://www.ice.gov/detainer-policy, because that
involves precisely the kind of cooperation with the federal government’s efforts to enforce the
INA that Arizona recognized as different. As explained in our Statement of Interest at pages 6-
11, a detainer is a “request . . . from the Federal Government,” Arizona, 567 U.S. at 410, to a
State or locality to assist the federal government’s efforts to take a particular alien into custody
by briefly continuing to detain the alien so the federal government can assume custody in an
orderly manner. The ICE detainer initiates and cabins any state or local cooperation through “the
direction and guidance of federal officials charged with implementing and enforcing the
immigration laws,” such that local assistance is “rendered within any parameters set by DHS
[and] DHS can exercise control over enforcement and has the flexibility to respond to changing 2 Arizona thus forecloses any suggestion that the only way for a State or locality to make immigration arrests in response to an immigration detainer is through a formal agreement under 8 U.S.C. § 1357(g)(1)-(9). See United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (“Although a formal, written agreement is sometimes required for a state official to perform certain functions of a federal immigration officer, no written agreement is required for a state official to cooperate with the Attorney General in identifying, apprehending, and detaining any individual unlawfully present in the United States.”); Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters at 7 (“As contemplated by [§ 1357(g)(10)], DHS has invited and accepted the assistance of state and local law enforcement personnel in a variety of contexts that lie outside of the written agreements provided for by paragraphs (1) - (9) of subsection 1357(g)”), available at https://www.dhs.gov/sites/default/files/publications/guidance-state-local-assistance-immigrationenforcement.pdf.
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considerations.” See DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters at 8. Furthermore, under ICE policy, every detainer is accompanied by a warrant, and the INA thus plainly authorizes the federal government to effectuate the arrest itself. See id.; 8 U.S.C. 1226(a), 1231(a).
Put another way, because ICE exercises its enforcement discretion in deciding whether to issue a detainer request and whether to issue the accompanying warrant, State and local officers who choose to comply with that request by definition are conforming their assistance “to federal priorities and direction and [therefore] conform to federal discretion,” whatever federal priorities may entail. See id. at 9; Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 465-67 (4th Cir. 2013) (recognizing that local police may detain and transport an alien after express direction of federal officials); Ovando-Garzo, 752 F.3d at 1164-65 (“state official [may] cooperate with the Attorney General in identifying, apprehending, and detaining any individual unlawfully present in the United States” so long as the actions are “not unilateral”); see also United States v. Quintana, 623 F.3d 1237, 1242 (8th Cir. 2010) (holding that a state officer was authorized under Section 1357(g)(10)(B) to detain an alien at DHS’s behest until DHS could take him into custody the following day); United States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007) (finding temporary detention of alien by local officer lawful where the police officer detained the passengers at ICE’s express direction).3
3 The parties ignore this authority, and instead rely on cases addressing unilateral state enforcement of civil immigration law, absent actual federal direction, supervision, or authorization. See Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (affirming preliminary injunction prohibiting county sheriff from unilaterally making civil immigration arrests as ICE had revoked his department’s 287(g) agreement with ICE permitting him to do so); Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158, at *10-11 (S.D. Ind. Mar. 28, 2013) (finding State law preempted where it provided state and local officers “unilateral discretion” to make immigration arrests). But these authorities are irrelevant where, as here, any arrest is made following a specific “request, approval, or other instruction from the Federal Government” in the form of the immigration detainer request. Arizona, 567 U.S. at 410.
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Accordingly, because SB 4’s detainer provision is simply a codification of Texas’s sovereign prerogative to cooperate with the federal government in the identification, apprehension, detention, and/or removal of aliens removable from the United States, see Arizona, 567 U.S. at 409-10, in response to a “request, approval, or other instruction from the Federal Government,” id. at 410; see id. at 413, there is no merit to the argument that SB 4’s detainer provision is preempted by federal law.
3. Nor is there any merit to the claim that SB 4’s detainer provision violates the Fourth Amendment by allowing State and local law enforcement officers to make civil (rather than criminal) arrests based on probable cause to believe that the subject is a removable alien. The same detention of the same alien pursuant to the same warrant is no less reasonable when the custodian is a State or local officer, rather than the federal government itself, and the State or local officer already has the individual in custody and is merely continuing to hold him or her temporarily under the direction, supervision, or authorization of the federal government so that it can effectuate an arrest in a safe and orderly manner.
First, as Plaintiffs must concede, it is well-established that immigration arrests may be premised on civil, administrative warrants. The Supreme Court has long held that removal proceedings are civil, rather than criminal in nature, and “various protections that apply in the context of a criminal trial,” including various Fourth Amendment protections, “do not apply in a deportation hearing.” Immigration & Naturalization Servs. v. Lopez–Mendoza, 468 U.S. 1032, 1050–51 (1984); see also Carlson v. Landon, 342 U.S. 524, 537 (1952) (“Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution.”). In fact, the entirety of immigration proceedings, from initial arrests initiating those proceedings, see 8 U.S.C. § 1226(a), to bond hearings, see id., to
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challenging mandatory detention, see Demore v. Kim, 538 U.S. 510, 514 (2003), to the ultimate decision as to whether an individual is removable, see 8 U.S.C. § 1229a, is conducted by administrative officials within the Executive Branch, and are only subject to review before an actual Article III judge if the alien seeks judicial review of a final order of removal. See 8 U.S.C. § 1252(a). And unlike individuals in other civil contexts, aliens have a weaker liberty interest with respect to immigration detention, because their presence in the county is due to and conditioned on federal immigration law. See, e.g., Demore, 538 U.S. at 523 (“detention during deportation proceedings as a constitutionally valid aspect of the deportation process”).4
That the Fourth Amendment's requirements in the criminal context may not apply to the initiation and conduct of these civil immigration proceedings is thus not a novel concept.5 See Gerstein v. Pugh, 420 U.S. 103, 125, n.27 (1975) (“The Fourth Amendment was tailored explicitly for the criminal justice system . . . .”); De La Paz v. Coy, 786 F.3d 367, 372 (5th Cir. 2015) (rejecting an attempt to “equate civil immigration enforcement actions with federal criminal law enforcement”); Rhoden v. United States, 55 F.3d 428, 432 n.7 (9th Cir. 1995) (per curiam) (noting how civil immigration proceedings “involve a distinct set of considerations and require different administrative procedures” than criminal proceedings); cf. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1978) (noting, in the context of administrative searches, how “[p]robable cause in the criminal law sense is not required”). Accordingly, “it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal district court judge.” Gonzalez v. ICE, No. 13-4416, 2017 WL 2559616,
4 Of course, it is a violation of federal criminal law for an alien to enter or re-enter the United States without authorization. 8 U.S.C. §§ 1325, 1326. 5 This is not to say that the Fourth Amendment is limited to criminal proceedings. See, e.g. Soldal v. Cook Cnty., 506 U.S. 56, 69 (1992).
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*10 (C.D. Cal. June 12, 2017) (collecting cases). Moreover, as noted in our earlier Statement of Interest, given the civil nature of these
administrative proceedings, the Supreme Court has observed at length that there is “overwhelming historical legislative recognition of the propriety of administrative arrest[s] for deportable aliens.” Abel v. United States, 362 U.S. 217, 233 (1960) (noting “impressive historical evidence of acceptance of the validity of the statutes providing for administrative deportation arrest from almost the beginning of the Nation” and concluding that “[s]tatutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time.”); see, e.g., Lopez v. INS, 758 F.2d 1390, 1393 (10th Cir. 1985) (aliens “may be arrested by administrative warrant issued without an order of a magistrate”); Moreno v. Napolitano, 213 F. Supp. 3d 99, 1005 (N.D. Ill. 2016) (citing Section 1226(a) provision that an alien may be detained “pursuant to ‘a warrant issued by the Attorney General’”).
The “impressive historical evidence” of the validity of civil, administrative warrants as the basis for immigration enforcement is further supported by both historic and contemporary understandings of the scope of “probable cause” as used in the Fourth Amendment. Probable cause to arrest under the Fourth Amendment, whether through a warrant or without one, may be premised on suspected violations of civil, as opposed to criminal, law. As the Eleventh Circuit recently explained, the “Fourth Amendment does not require warrants to be based on probable cause of a crime, as opposed to a civil offense.” United States v. Phillips, 834 F.3d 1176, 1181 (11th Cir. 2016). Indeed, during the founding era, “probable cause” meant a belief “made under circumstances which warrant suspicion,” without distinguishing between criminal or civil offenses. See Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813) (Marshall, C.J.); see also Atwater, 532 U.S. at 328-32, 351-54 (noting common law authority constables had to arrest
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suspects regardless of whether such offenses were “jailable”). The Supreme Court has never
suggested that arrests do not satisfy the Fourth Amendment if they are not premised on probable
cause of a crime. Rather, recent Supreme Court cases reinforce the notion that arrests may be
premised on probable cause of a legal violation, whether civil or criminal. See, e.g., Arkansas v.
Sullivan, 532 U.S. 769 (2001) (per curiam) (upholding an arrest for speeding, a “violation”
punishable by only a fine under state law); Soldal, 506 U.S. at 69 (holding that civil seizure of
property governed by normal Fourth Amendment standards); cf. Ashcroft v. al-Kidd, 563 U.S.
731, 743 (2011) (describing material witness warrants and explaining warrants may be issued
based on probable cause of something other than a “violation of law”); United States v.
Comstock, 560 U.S. 126, 130-31 (2010) (upholding federal civil commitment statute for mentally
ill or sexually dangerous persons).6
Applying these authorities, courts of appeals have concluded that “arrests for violations
of purely civil laws are common enough . . . .” Thomas v. City of Peoria, 580 F.3d 633, 638 (7th
6 Plaintiffs, relying on Messerchmidt v. Millender, 565 U.S. 535, 546-47 (2012), contend that SB 4 violates the Fourth Amendment because peace officers are foreclosed from determining for themselves whether an ICE administrative warrant is in fact supported by probable cause. Millender, however, addresses a qualified immunity defense, and holds that absent evidence that the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” an officer is entitled to qualified immunity in relying on it. Id. at 547. Where, as here, the ICE detainer and warrant contain specific explanations concerning the ICE official’s probable cause determination, an officer is entitled to rely on that probable cause finding. See Statement of Interest of U.S. at 28 & n.15, 35. Regardless, SB 4 in fact permits peace officers to verify whether the subject of the detainer is an alien or a citizen, see Texas Code of Criminal Procedure. Article 2.251(b), and nothing in Federal or State law precludes a peace officer from contacting ICE directly to verify an alien’s immigration status. See 8 U.S.C. § 1373; Arizona, 567 U.S. at 410-13. Although the parties paradoxically suggest such provisions are required to satisfy the Fourth Amendment yet are preempted under federal law, every court to address such an argument since Arizona has rejected it. See Utah Coalition of La Raza v. Herbert, 26 F. Supp. 3d 1125, 1137-40 (D. Utah 2014) (rejecting Fourth Amendment and preemption challenge to provision of Utah law requiring immigration status checks and permitting peace officer to rely on State drivers’ licenses as evidence that an individual is not a removable alien); United States v. S.C., 906 F. Supp. 2d 463, 470-74 (D.S.C. 2012) (similar); see also United States v. Alabama, 691 F.3d 1269, 1277, 1292 (11th Cir. 2012) (affirming immigration status check provisions under Arizona).
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Cir. 2009) (upholding arrest for civil contempt, for alleged failure to pay parking tickets); see also United States v. Perdoma, 621 F.3d 745, 749 (8th Cir. 2010) (upholding arrest for possession of one ounce or less of marijuana, an “infraction” under State law); United States v. Burtton, 599 F.3d 823, 830 (8th Cir.2010) (upholding arrest for violation of State’s “open container” law, an “infraction”). So too are arrests for noncriminal conduct that are not even a civil violation at all. See, e.g., Bruce v. Guernsey, 777 F.3d 872 (7th Cir.2015) (upholding noncriminal arrest of mentally ill individual based on probable cause that individual was danger to self or others); United States v. Gilmore, 776 F.3d 765, 77071 (10th Cir. 2015) (upholding noncriminal arrest of intoxicated person because of probable cause to believe he was a threat to himself or others); United States v. Timms, 664 F.3d 436, 452-53 (4th Cir. 2012) (addressing federal statute permitting civil commitment of sexually dangerous persons upon certification of executive officer); cf. United States v. Duka, 671 F.3d 329 (3d Cir.2011) (upholding Foreign Intelligence and Surveillance Act “significant purpose” test as basis for surveillance as reasonable under the Fourth Amendment, notwithstanding absence of any requirement that government show “probable cause of a crime being committed”).
Plaintiffs ignore these authorities, and instead suggest that whether a civil immigration arrest supported by an immigration detainer and an administrative warrant violates the Fourth Amendment turns on whether Federal or State and local authorities are effectuating the arrest. But this argument assumes that inter-sovereign cooperation is only permitted based on allegations of criminality. That assumption is at odds with the extensive case law addressing cooperation between sovereigns, both State-to-State and Federal-State, whereby one sovereign temporarily detains an individual based on a civil infraction committed by the individual against the other sovereign. Indeed, as explained in our Statement of Interest at pages 36-37, temporary
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civil detentions effectuated by one sovereign on behalf of another routinely occur in our system of dual sovereignty. See, e.g., United States v. Cardona, 903 F.2d 60, (1st Cir. 1990) (parole violator warrant issued by New York, arrest effectuated by local police officers in Rhode Island); Chavez v. City of Petaluma, No. 14-CV-5038, 2015 WL 6152479, at *6, *11 (N.D. Cal. Oct. 20, 2015) (dismissing a claim for allegedly improper warrantless arrest and detention where parole officers placed parole hold on Plaintiff, city policy effectuated warrantless arrest, and County detained plaintiff following arrest); Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309, 1312 (D. Me. 1976) (similar, warrant issued by federal government, effectuated by Maine); Andrews v. State, 962 So. 2d 971, 973 (Fla. Dist. Ct. App. 2007) (recounting how a DD Form 553 was issued for the desertion of a military officer and Federal agents enlisted local police in the search of his residence and arrest); accord United States v. Lucas, 499 F.3d 769, 776-79 (8th Cir. 2007) (administrative arrest warrant issued by State executive official for apprehension of prison escapee, executed by city police officer); Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000) (socalled administrative “retake” warrant issued by State prison officials directed at prisoners released prematurely, effectuated by police officers); see also Gardner v. Cal. Highway Patrol, No. 2:14-CV-2730, 2015 WL 4456191, at *16 (E.D. Cal. July 20, 2015) (explaining that county could reasonably rely on a facially valid probable-cause declaration from a highway patrol officer to detain the plaintiff in jail).
The Supreme Court’s decision in Virginia v. Moore, 553 U.S. 164 (2008), further supports the constitutionality of SB4. In Moore, local police officers in Virginia stopped a car driven by defendant, who was not in possession of a valid driver’s license. Under State law, that was not an arrestable offense and instead triggered a citation, but the officers nonetheless arrested him, searched him, and found crack cocaine. Id. at 167. The Virginia Supreme Court
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held that because under State law the police should have issued the defendant a citation, and the Fourth Amendment does not permit searches incident to citations, the warrantless arrest violated the Fourth Amendment. The Supreme Court reversed, rejecting the view that the state-law limitation controlled the Fourth Amendment analysis.
The Court explained that “whether or not a search is reasonable within the meaning of the Fourth Amendment, . . . has never depended on the law of the particular State in which the search occurs,” and “state law [does] not alter the content of the Fourth Amendment.” Id. at 172. Indeed, as the Court observed, “the Fourth Amendment's meaning did not change with local law enforcement practices—even practices set by rule. While those practices ‘vary from place to place and from time to time,’ Fourth Amendment protections are not ‘so variable’ and cannot ‘be made to turn upon such trivialities.” Id. (quoting Whren v. United States, 517 U.S. 806, 815 (1996)). Rather, “when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same,” id. at 173, and to hold otherwise would cause Fourth Amendment “protections [to] vary if federal officers were not subject to the same statutory constraints as state officers.” Id. at 176. Thus, “[i]t would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers . . . .” Id. (emphasis added); see United States v. Bernacet, 724 F.3d 269, 276-77 (2d Cir. 2013) (similar); United States v. Brobst, 558 F.3d 982, 991 (9th Cir. 2009) (similar). To hold otherwise, the Court found, would conflict with its oftrepeated observation concerning the importance of “readily administrable rules” in determining reasonableness under the Fourth Amendment. Id. at 175 (citing Atwater, 532 U.S. at 347); see Dunaway v. New York, 442 U.S. 200, 213 (1979) (“A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the
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social and individual interests involved in the specific circumstances they confront.”).7
To be sure, the reasoning of Moore turned in part on the fact that the local police officers
in that case lacked authority under Virginia law to make an arrest for that offense. But that is not
an issue in this case, where, by contrast, there is no dispute whether controlling law authorizes
continued detention: federal law affirmatively authorities the federal government to arrest and
detain the alien based on an administrative warrant backed by probable cause, 8 U.S.C. §§
1226(a), 1231(a); the federal government has, through the detainer request, affirmatively asked
local law enforcement to continue detaining the individual so that the federal government can
effectuate the arrest in an orderly manner; the detention is not warrantless, but instead the
detainer request is accompanied by a warrant based on a determination of probable cause; and
the relevant State law, SB 4, affirmatively authorizes local peace officers to cooperate with the detainer request.8 And although civil immigration violations are “jailable” offenses, in that DHS
may take any alien suspected to be removable into physical custody pending a determination on
removability, see 8 U.S.C. §§ 1226(a), (c); 1231(a), “the Fourth Amendment does not forbid an
arrest for a ‘nonjailable’ offense.” Thomas, 580 F.3d at 637 (citing Atwater, 532 U.S. at 351-54);
accord Burtton, 599 F.3d at 830. Rather, what matters is whether there is probable cause to
believe the legal violation has occurred in the first place. If there is, then there can be no Fourth
7 Moore also supports the view that the fact that a state statute authorizing a civil arrest may be preempted under Federal law does not necessarily render the arrest a violation of the Fourth Amendment itself. See 553 U.S. at 176 (rejecting “linking Fourth Amendment protections to state law” and noting that such laws cannot “alter the content of the Fourth Amendment”). Regardless, as noted, under Arizona, the arrests authorized by SB 4 are not preempted. 8 Under Moore (which did not involve preemption claims) the fact that a facially-valid arrest warrant exists supplies all the probable cause that is necessary under the Fourth Amendment. See. Johnson v. Phillips, 664 F.3d 232, 238 (10th Cir. 2008) (applying Moore, and holding that local police officer “lacked authority under state law to make an arrest does not establish that his conduct violated the Fourth Amendment” and that “[t]he outstanding warrant gave [the officer] probable cause to arrest [plaintiff], and that probable cause satisfied the Fourth Amendment”); cf. Phillips, 834 F.3d at 1182 (“arrest based on a valid warrant is per se reasonable”).
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Amendment violation, regardless of whether the arresting officer is a Federal or State or local officer. See Moore, 553 U.S. at 176. Having reasonableness turn on what sovereign employs the arresting officer such that the Fourth Amendment would “now restrict state officers more than federal officers,” is precisely the sort of haphazard, “variable . . . trivialit[y]” the Supreme Court routinely rejects, See, e.g., Moore. 553 at 172, 176.
In short, a federal officer does not violate the Fourth Amendment by relying on a civil immigration warrant to arrest and detain a removable alien. A State or local officer similarly does not violate the Fourth Amendment by temporarily detaining the same removable alien at the request of the federal government, based on the identical administrative arrest warrant and determination of probable cause. See 553 U.S. at 176. Of course, no party or amici seriously contends that civil, administrative arrest warrants issued pursuant to 8 U.S.C. §§ 1226 and 1231 somehow violate the Fourth Amendment.9 But that is precisely the point: the fact of cooperation between two separate sovereigns in reliance on the same set of facts and the same administrative warrant cannot alter the analysis. If federal immigration warrants do not violate the Fourth Amendment (which they do not, see supra), and Federal officers do not violate the Fourth Amendment when effectuating arrests in reliance on federal immigration warrants, then State or local officers’ reliance on those warrants in making identical arrests pursuant to State authorization like that found in SB 4 to cooperate with federal authorities similarly cannot violate the Fourth Amendment. See 553 U.S. at 176.
4. For these reasons, and those in the United States’ Statement of Interest, the United States requests that the Court find that SB 4’s detainer and information-sharing provisions do not violate the Fourth or Tenth Amendments, and are not preempted by federal law.
9 This would be a strange argument for Plaintiffs to advance, given that each municipality in this lawsuit in fact cooperates in whole or in part with ICE detainer requests.
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Dated: July 20, 2017

Respectfully Submitted,
CHAD A. READLER Acting Asst. Attorney Gen.
WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section
/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel U.S. Department of Justice Civil Division, 450 5th Street NW Washington, D.C. 20530 Tel: 202-307-4293 erez.r.reuveni@usdoj.gov
Counsel for United States

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Case 5:17-cv-00404-OLG Document 170 Filed 07/20/17 Page 22 of 22 CERTIFICATE OF SERVICE
I certify that on June 23, 2017, I electronically filed the foregoing motion with the Clerk of Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to the attorneys of record for all parties.
/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel U.S. Department of Justice
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 Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 1 of 16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et.al.

§

§

EL PASO COUNTY; RICHARD WILES,

§

SHERIFF OF EL PASO COUNTY in his official §

capacity; and the TEXAS ORGANIZING

§

PROJECT EDUCATION FUND,

§

Plaintiffs,

§

§

TEXAS ASSOCIATION OF HISPANIC

§

COUNTY JUDGES AND COUNTY

§

COMMISSIONERS,

§

Proposed Plaintiff/Intervenor

§

§

V.

§

STATE OF TEXAS

§

Defendants,

§

Civil Action No. 5:17-CV-00404-OLG (Lead Case) Case No. 5:17-CV-00459-OLG Consolidated

PLAINTIFF-INTERVENORS TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR TRANSFER
COMPLAINT IN INTERVENTION [DKT. 162] Plaintiff-Intervenors Texas Association of Hispanic County Judges and County Commissioners (Hereafter “HJ&C”) hereby file their Response in Opposition to Defendants’ Motion to Dismiss or Transfer Complaint in Intervention of HJ&C [Dkt. 162] For the reasons set forth below, Defendants’ Motions should be denied.
I. SUMMARY OF ARGUMENT Defendants seek to dismiss or transfer HJ&C Complaint in Intervention [Dkt. 142] from San Antonio, where HJ&C Plaintiff- Intervenors properly filed their Complaint in Intervention, into the State’s preemptive, advisory opinion action in the Austin Division. This Court should not entertain Defendants’ motion. San Antonio is a proper venue. As this action was properly
]
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Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 2 of 16 brought in San Antonio, dismissal or transfer pursuant to Rule 12(b)(3) and 28 U.S.C. § 1404 and 1406 is inappropriate.
Moreover, the first-to-file rule is inapplicable here. It appears that the State filed their suit in the Austin Division of the Western District to in an attempt to take advantage of the “First to File” rule, thereby provoking a “disorderly race to the courthouse” by parties interested in Senate Bill 4 (“SB 4”). Such action in (1:17-CV-00425-SS) by the State is neither supported by the Fifth Circuit nor the Supreme Court. 909 Corp. v. Village of Bolingbrook Police Pension Fund, 741 F. Supp. 1290, 1292-93 (S.D. Tex. 1990), citing Amerada Petroleum Corp., v. Marshall, 381 F. 2d 661, 663 (5th Cir. 1967), cert. denied 389 U.S. 1029 (1968); see also, Cunningham Brothers, Inc. v. Bail, 407 F. 2d 1165, 1167-69 (7th Cir. 1969), cert. denied, 395 U.S. 959 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969) (holding that it is improper use of the Declaratory Judgment Act to permit an alleged tortfeasor to sue prospective plaintiffs in the forum and at the time of the alleged tortfeasor’s choosing). The State’s lawsuit in Austin is merely an improper request for an advisory opinion.
Finally, Defendants have offered no serious argument that the Austin Division is a more convenient venue warranting transfer under 28 U.S.C. § 1404. For these reasons, and as detailed below, the Court should refuse the Defendant’s improper request and keep this action in San Antonio.
II. PROCEDURAL BACKGROUND AND STATE’S ALLEGATIONS On May 7, 2017, the State filed a Complaint for Declaratory Judgment against Travis County and Sheriff Sally Hernandez, the City of Austin and its mayor, councilmembers, and certain employees (“City of Austin”), and the Mexican American Legal Defense and Education Fund (“MALDEF”) in the Western District, Austin Division. [Dkt. 1 of 1:17-cv-00425-SS] In its Complaint, the State requested that the Austin Court declare the State’s own statute, SB 4, constitutional. The State filed its Complaint within hours after SB 4 was signed by Governor
]
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Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 3 of 16 Abbott, but well prior to its effective date1. One day later, the City of El Cenizo, LULAC, and several elected public officials in Maverick County filed the instant case in the San Antonio Division. [Dkt. 1] El Paso County also filed suit in the San Antonio Division2, as did MALDEF, on behalf of the City of San Antonio and other plaintiffs3. The three lawsuits were consolidated on June 6, 2017, with the El Cenizo case designated as the lead case. [Dkt. 27] The HJ&C Plaintiff-Intervenors filed their Motion to Intervene and Complaint in Intervention, which was granted. [Dkt. 80, 141, & 142]
On the concurrent litigation track pending before this Court, the State is the defendant in the (consolidated) El Cenizo Case. On June 26, 2017, all parties participated in a preliminary injunction hearing in the consolidated San Antonio matter.
III. ARGUMENT A. The Court Should Deny Defendants’ Motion
As a preliminary matter, Defendants have the burden to show that this case should be dismissed or transferred. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); see also Healthpoint, Ltd. v. Derma Scis., Inc., 939 F. Supp. 2d 680, 684 (W.D. Tex. 2013). “Defendants must demonstrate good cause for the transfer.” Permian Basin Petroleum Ass’n v. Dep’t of the Interior, No. MO-14-CV-050, 2015 WL 11622492, at *5 (W.D. Tex. Feb. 26, 2015); In re Volkswagen of America, Inc., 545 F.3d 304, 314 n. 10 (5th Cir. 2008). Defendants have not— and indeed cannot—meet this burden; therefore, their motion should be denied.
1 See, State’s Complaint for Declaratory Judgment in Civil Action No. 1:17-cv-00425-SS; In the United States District Court for the Western District of Texas; Austin Division. [Dkt. 1] 2 See, El Paso County, et al. v. State of Texas, et al., Civil Action No. 5:17-cv-00459-OG; in the United States District Court for the Western District of Texas; San Antonio Division. [Dkt. 1] 3 See, City of San Antonio, et al. v. State of Texas, et al., Civil Action No. 5:17-cv-00459-OG; in the United States ]
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B. Dismissal Under 28 U.S.C. § 1406 Is Inapplicable Because San Antonio Is a Proper Venue Under 28 U.S.C. § 1391(b). Defendants are correct that under Rule 12(b)(3) and 28 U.S.C. § 1391(b), a District Court
may dismiss or transfer a case that was filed in the “wrong” venue. Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 577 (2013). In the instant case, however, Plaintiffs filed in a proper venue.
1. Venue is proper in any division of the Western District of Texas. Whether a plaintiff’s choice of venue is proper is determined by 28 U.S.C. § 1391. This venue statute relates to judicial districts, not judicial divisions. See Galvan v. Rathmann & O’Brien, LLC, DR-08-CV-035-AML-VRG, 2008 WL 11334138, at *4 (W.D. Tex. Dec. 3, 2008), report and recommendation adopted as modified sub nom. Galvan v. Rathmann & O'Brien, L.L.C., DR-08-CV-035-AML/VRG, 2009 WL 10669598 (W.D. Tex. Mar. 31, 2009). All defendants reside in the Western District, Senate Bill 4 (“SB 4”) was enacted in the Western District, and San Antonio—where a substantial part of the events giving rise to Plaintiffs’ claims occurred—is located within the Western District; therefore, any division in the Western District of Texas is proper for venue purposes under 28 U.S.C. § 1391(b). Federal civil cases need not be filed in a particular division of a judicial district. See In re Gibson, 423 F. App’x 385, 388 (5th Cir. 2011); 14D Charles Alan Wright et al., Federal Practice and Procedure § 3809 (4th ed. 2017). This question was further discussed in Graciela Galindo, et al. v. Reeves County, et al., No. EP-10-CV-454-DB, 2011 WL 13175764, at *2 (W.D. Tex. Apr. 12, 2011). There, the court reiterated that venue was proper in any division of the Western District because a substantial part of the events giving rise to the claim occurred in the Western District. Id. at *3–*5. Defendants do not cite any authority that stands for the
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proposition that Plaintiffs are required to file in one particular division within an undeniably proper district.
The fact that the San Antonio Division is the proper venue for this action under § 1391— and it cannot be dismissed or transferred under § 1406—is further supported by one of the cases Defendants cite, Chapman v. Dell, Inc., No. EP-09-CV-7-KC, 2009 LEXIS 50654 (W.D. Tex. April 15, 2009). Chapman, a Title VII dispute, refers to another case, Says v. M/V David C. Devall, 161 F. Supp. 2d 752 (S.D. Tex. 2001), which provides that, “when [a] venue statute refers to districts rather than divisions, venue is proper in all divisions of [a] proper district.” Chapman, 2009 LEXIS 50654, at *2. In Chapman, the defendant sought a § 1406 transfer from the El Paso Division to the Austin Division. Id. The defendant argued that the El Paso Division was improper under Title VII’s venue provision14 —which (as with § 1391) refers only to “judicial districts”—because the pertinent facts and records were associated with Austin, not El Paso. Id. The Chapman court held that the El Paso Division was a proper venue because it was part of the Western District, and under Title VII’s venue provision, the Western District was a proper venue. Id. The El Paso Division was proper; therefore, § 1406 was not applicable. Id. at *3.
2. Venue is proper in the San Antonio Division under 28 U.S.C. § 1391(b). Defendants insist that San Antonio is not a proper venue because none of the Defendants reside in San Antonio and events giving rise to these events did not occur within this division. [Dkt. 32-1 p. 2] Defendants assert that Plaintiff’s choice of forum holds less weight when
4 “[An action under Title VII] may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful practice[.]” Chapman, 2009 LEXIS 50654, at *2 (citing 42 U.S.C. § 2000e- 5(f)(3)).
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Plaintiff does not reside in the chosen forum. [Dkt. 32-1 p.3]5 Here, several Plaintiffs reside in San Antonio for venue purposes, and their choice of forum holds due weight.
For venue purposes, an entity resides in the judicial district where it maintains its principal place of business. 28 U.S.C. § 1391(c)(2). In this instance, most, if not all, of the Plaintiffs reside in the Western District of Texas.
Events giving rise to this litigation have and will continue to occur in San Antonio; therefore, the San Antonio Division is a proper venue under 28 U.S.C. § 1391(b). C. Austin Is Not the Only Proper Division for Lawsuits Against Public Officials.
Defendants also argue, incorrectly, that Plaintiffs may only sue Texas officials in the division of the district where the officials perform their official duties. [Dkt. 32-1 p. 5] Venue does not lie only in the division or even the district where officials perform their duties. In fact, this is illustrated by the very case that Texas cites to support its argument. See Florida Nursing Home Ass’n v. Page, 616 F.2d 1355 (5th Cir. 1980), rev’d sub nom. Florida Dep’t of Health & Rehab. Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981) (finding that “the residence of the defendants does not provide the only basis for venue. Venue is also proper in the district where the claim arose.”).
If Defendants’ assertion were correct, all litigation against Austin-based state officials would necessarily take place in the Austin Division. In reality, litigation against state officials routinely takes place outside of Austin, including in the San Antonio Division. Because San Antonio is a proper venue for this case, 28 U.S.C. § 1406 is inapplicable.
5 Defendants misleadingly quote the following language as if it were contained in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981)): “the weight given to a plaintiff’s choice of forum is diminished when the plaintiff does not reside in his chosen forum and no operative facts occurred within the forum.” Defendant’s Mot. at 3. In fact, this quote is contained in the unpublished Candela Corp. v. Palomar Med. Techs., Inc., No. 9:06-cv-277, 2007 WL 738615 at *3 (E.D. Tex. Feb. 22, 2007). Piper Aircraft is a seminal case on the doctrine of forum non conveniens which is inapplicable here.
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D. The First-To-File Rule Does Not Mandate Dismissal or Transfer of This Case to the Austin Division. “Courts in the Fifth Circuit generally follow the ‘first-filed rule’ in deciding which Court
should maintain jurisdiction over claims that arise out of the same subject matter but are pressed in different suits.” Igloo Products Corp. v. Mounties, Inc., 735 F.Supp. 214, 217 (S.D.Tex.1990) (quoting West Gulf Maritime Association v. ILA Deep Sea Local 24, 751 F.2d 721, 730 (5th Cir.1985)). However, courts have recognized that a compelling circumstance may exist to dismiss a case and avoid the operation of the first filed rule. Id. at 217; see also, Mission Insurance Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 (5th Cir. 1983) and 909 Corporation v. Village of Bolingbrook Police Pension Fund, 741 F. Supp. 1290, 1292-1293 (S.D. Tex. 1990).
Accordingly, “courts have held that a declaratory claim should be dismissed if it was filed for the purpose of anticipating a trial of the same issues in a court of coordinate jurisdiction.” See Mission Insurance, 706 F.2d at 602; Amerada Petroleum Corp., 381 F.2d at 663); E.F. Hutton & Co. v. Cook, 292 F.Supp. 409, 410 (S.D.Tex. 1968). “The Court cannot allow a party to secure a more favorable forum by filing an action for declaratory judgment when it has notice that the other party intends to file suit involving the same issues in a different forum.” See, e.g., Hanes Corp. v. Millard, 531 F.2d 585, 592–93 (D.C.Cir. 1976) (anticipation of defenses is ordinarily not a proper use of the declaratory judgment act as it “provokes a disorderly race to the courthouse”); Cunningham Brothers, Inc., 407 F.2d at 1167-69).
On May 7, 2017, immediately after Governor Abbott signed SB 46, the State rushed to the courthouse to file its Complaint for Declaratory Judgment in the Austin case and named local governments, elected officials and a non-profit advocacy group as defendants. [Dkt. 1 of 1:17-
6 Senate Bill 4 does not become effective until September 1, 2017.
8

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 8 of 16
cv-00425-SS] In the Austin case, the State is requesting that the Court declare the State’s own statute, Senate Bill 4, constitutional, even though SB 4 is already presumed to be constitutional under Texas law. Burlington Northern & Santa Fe Ry. Co. v. Poole Chemical Co., 419 F. 3d 355, 361 (5th Cir. 2005) citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W. 2d 931, 934 (Tex. 1996).
In an effort to establish a strawman defendant, the State relies on two incorrect assertions to establish jurisdiction in the Austin case. The State asserts, falsely, that SB 4 is “law as of May 7, 2017” [Dkt. 23 p. 22 of 1:17-cv-00425-SS] even though it will not become effective until September 1, 2017. Clearly, the race to the courthouse by the State moments after the Governor signed Senate Bill 4 was not to remedy some actual injury or to assert a justiciable claim, but rather an inappropriate attempt to “secure a forum.” The State admitted as much when it pled that the Austin case was “quickly filed in anticipation of litigation.” [Dkt. 17-1 p. 5 of 1:17-cv00425- SS].
1. The Austin Court lacks jurisdiction so the First-to-File rule should not apply. The State’s Complaint for Declaratory Judgment has not triggered the Austin Court’s jurisdiction and should be dismissed. The State’s failure to trigger the Austin Court’s jurisdiction is a compelling reason for this Court to deny this Motion to Dismiss or Transfer Complaint in Intervention of HJ&C, or for the Austin Court to grant the Motions to Dismiss filed in that matter and moot the State’s Motion to Dismiss or Transfer Travis County’s Complaint in Intervention to the Austin Court.
2. The State is not, and never will be, the proper plaintiff; thus, lacks standing. While a federal court would have jurisdiction to determine whether or not SB 4 complies with various aspects of the United States Constitution, the State is not, and never can be, the proper plaintiff to request such a determination: not now and not after SB 4 goes into effect on
13

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 9 of 16 September 1. As a plaintiff requesting a judicial affirmation of its own statute, a statute that is already presumed constitutional, the State does not have standing to pursue such a declaration by a federal court.
The jurisdiction of the Federal Court is both “defined and limited by Article III of the Constitution.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). Further, the Court’s power is restricted to “cases and controversies.” Id. The doctrine of standing gives meaning to which disputes are appropriately resolved through the judicial process. Id. In making a determination on standing for Article III purposes, courts must make two inquiries: (1) is the party who is attempting to invoke federal court jurisdiction a proper party to bring the claim; and (2) what is the claim sought to be adjudicated. Flast v. Cohen, 392 U.S. 83, 99-102 (1968); see also, Warth v. Seldon, 422 U.S. 490 (1975). To determine whether a party has standing, courts must discern, the “nexus between the status asserted by the litigant and the claim he presents to insure that [the litigant] is a proper and appropriate party to invoke federal jurisdiction.” Flast, 392 U.S. at 102.
Regarding part one of the standing inquiry, “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Id at 99-100. The Supreme Court continues, “A proper party is demanded so that federal courts will not be asked to decide ‘ill-defined controversies over constitutional issues.’” Id., citing United Public Workers of America v. Mitchell, 330 U.S. at 90. The Supreme Court likens the “proper party” aspect of the standing inquiry to the rule that the federal courts will not entertain friendly lawsuits. Flast, 392 U.S. at 100.
As for part two of the standing inquiry, i.e., the dispute in question, the inquiry is as follows: “whether the dispute touches upon ‘the legal relation of parties having adverse legal interests.’” Id., quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 27, 240-241 (1937).
When applying part one of the standing analysis to the instant case, it is evident that the State will never be a proper plaintiff for seeking a declaration on the constitutionality of its own
13

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 10 of 16 statute. This is because the statute is presumed constitutional and any opinion rendered in favor of the State would just be further affirmation of the statute’s constitutionality, and thereby advisory in nature. (See discussion, infra). In seeking this affirmation by the Court, the State is like a party in a friendly lawsuit, seeking a court to “sign off” on something that under Texas state law is already presumed true, i.e., the alleged constitutionality of SB 4.
As to the second part of the inquiry, i.e., the claim sought to be adjudicated, the constitutionality of SB 4 could, appropriately, be called into question, but that cause must be asserted by parties who are challenging the constitutionality of S.B 4, and therefore, have legal interests that are adverse to those of the State. Flast, 392 U.S. at 101-102. Such a party would be a proper party to challenge the constitutionality of SB 4. Id. at 99-101. For these reasons, the motion to dismiss should be granted, and the State’s motion to consolidate should be denied.
E. The State Is Seeking an Advisory Opinion Contrary to Article III of the U.S. Constitution. In essence, the State is seeking an advisory opinion from the Austin Court, and such a
request is not justiciable. Id. at 95-96. In quoting a well-known treatise, the Supreme Court asserts that ‘the oldest and most consistent thread in federal law of justiciability is that federal courts will not give advisory opinions.’” Id. at 96, quoting C. Wright, Federal Courts 34 (1963). Regarding advisory opinions, the Supreme Court cautions, “[w]hen a court is asked to provide an opinion on actions of the legislative branch, without a dispute that could be resolved through the judicial process, such opinion would be contrary to the separation of powers prescribed by the Constitution under Article III, and thereby, such court would lack jurisdiction over the issue.” Id. The State’s First Amended Complaint [Dkt. 23 of 1:17-cv-00425-SS] requesting that the Austin Court declare as constitutional a statute that is already presumed constitutional under Texas law, lacks a concrete dispute that can be resolved through the judicial process. Any opinion rendered by the Austin Court on the validity of the State’s Complaint would be advisory in nature. For this reason, the State’s Motion to Dismiss or Transfer Travis County’s Complaint
13

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 11 of 16 in Intervention should be denied, or the Austin case should be dismissed for lack of jurisdiction, and the State’s Motion to Dismiss or Transfer should be dismissed as moot. F. The State Does Not Meet the Requirements of the Declaratory Judgment Act.
In the alternative, and in addition to the preceding arguments, HJ&C assert an additional reason for dismissal of the suit filed in Austin: the State does not meet the requirements of the Declaratory Judgment Act. Despite the hypothetical nature of the State’s claims, it chose to sue in Travis County pursuant to the Declaratory Judgment Act. The Declaratory Judgment Act limits a court to deciding an “actual controversy within its jurisdiction.” 28 U.S.C. 2201. Also see, Golden v. Zwickler, 394 U.S. 103, 109-110 (1969). For a court to adjudicate constitutional issues, those issues must be “concrete legal issues, presented in actual cases, not abstractions.” Id. at 108, quoting United Public Workers of American v. Mitchell, 330 U.S. 75, 89 (1947). As the Supreme Court holds, “No federal court whether this court or district court, has ‘jurisdiction to pronounce any statute, either of a state or of the United States, void, because it is irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ The express limitation of the Declaratory Judgment Act to cases of actual controversy is an explicit recognition of this principle.” Golden, 394 U.S. at 110, quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 22, 39 (1885). (Emphasis added). G. The First-To-File Rule Does Not Apply in a Declaratory Action Where the
Subsequently Filed Suit Is an Injunctive Action. The decision to dismiss or transfer under the first-to-file rule “is committed to the court’s discretion.” Harris Cty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 319 (5th Cir. 1999); see also Permian Basin Petroleum Ass’n, No. MO-14-CV-050, 2015 WL 11622492 at *1 (W.D. Tex. Feb. 26, 2015); Alltrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 628 (9th Cir.
13

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 12 of 16
1991) (“district court judges can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity.”). Even when cases are substantially similar, “compelling circumstances” can counter the first-to-file rule. See Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 407 (5th Cir. 1971). Further, when a “suit [is] brought purely in anticipation of another [suit], [the first suit] is subject to dismissal under the compelling circumstance exception.” Stack v. Whitney Nat'l Bank, 789 F. Supp. 753, 754 (S.D. Miss. 1991) (citing Corp. v. Vill. Of Bolingbrook Police Pension Fund, 741 F. Supp. 1290, 1292 (S.D. Tex. 1990)).
In fact, courts widely recognize that following the first-to-file rule in anticipatory declaratory lawsuits is inappropriate. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir. 1983); see, e.g., Serco Servs. Co., L.P. v. Kelley Co., No. CA 3:93-C V- 1885R, 1994 WL 715913, at *1 (N.D. Tex. May 24, 1994), aff’d, 51 F.3d 1037 (Fed. Cir. 1995) (firstfiled suit dismissed because “the filing of an anticipatory suit trumps the ‘first-filed’ rule); see also Gemmy Industries Corp. v. Blue Ridge Designers, Inc., 3:99-cv-0008, 1999 WL 58785 (N.D. Tex. Feb 1, 1999) (first-filed declaratory judgment action constituted a “preemptive strike” and should be dismissed). Here, following the first-to-file rule would likewise be inappropriate because it would indulge the Defendants’ attempt to inappropriately control the venue in which this lawsuit is heard by preemptively filing a declaratory suit in anticipation of other litigation. H. The State’s Currently Pending Lawsuit Does Not Necessitate the Transfer of This
Case to the Austin Division. The State requests this Court to transfer this litigation to Austin because of its first-filed lawsuit. The State’s first-filed lawsuit, however, constitutes an improper attempt at forumshopping. [Dkt. 1 of 1:17-cv-00425-SS] This Court should resist Defendants’ improper invitation to transfer a legitimate case for injunctive relief to a forum where they filed an improper declaratory suit that may be dismissed. “Anticipatory suits are disfavored because”
14

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 13 of 16
they constitute “forum shopping.” Mission Ins. Co., 706 F.2d at 601, n.3. In civil cases, the plaintiff typically is afforded the opportunity to choose the forum in which the case will be heard. Courts in the Western District have held that permitting the “alleged wrongdoer to proceed with a declaratory judgment action divests the true plaintiff of this right.” Pennsylvania Gen. Ins. Co. v. Caremark PCS, No. Civ. A. 3:05-CV-0844-G, 2005 WL 2041969, at *7 (N.D. Tex. Aug. 24, 2005). Defendants anticipated that the law would face challenges to its constitutionality, and in a move to silence the opposition and to obtain their preferred forum, they filed an anticipatory, declaratory lawsuit in the Austin Division of this District. Texas v. Travis County, Texas, et al., No. 1:17-cv-00425-SS. This is clearly an attempt by the Defendants to shoehorn themselves into their preferred forum by filing the suit for declaratory judgment before any substantive challenges to SB 4 could be made.
I. 28 U.S.C. § 1404 Does Not Require Transfer to the Austin Division. Defendants also argue that this Court should use its discretion to transfer this case to
Austin in the interest of justice under 28 U.S.C. § 1404(a). They, however, offer no meaningful analysis of the factors required for transfer. Under those factors, Austin is not a more convenient venue than San Antonio.
A court may transfer an action to any different proper judicial district “[f]or the convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). When venue would also be proper in the alternate location, “the moving party bears the burden of demonstrating that good cause exists to transfer the case for convenience purposes.” Graciela Galindo, 2011 WL 13175764 at *2 (citing In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)). “A court will respect a plaintiff’s choice of venue, however, ‘when the transferee venue is not clearly more convenient than the venue chosen by the plaintiff . . . .” Id.
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Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 14 of 16 (quoting Volkswagen of Am., 545 F.3d at 315). The moving party bears the burden of showing that the destination forum is “clearly more convenient.” Id. (citing Volkswagen of Am., 545 F.3d at 315). Defendants do not and cannot meet this burden.
When deciding whether to transfer venue, a court balances the private interests of the litigants and the public interest in the fair and efficient administration of justice. Zurich Am. Ins. Co. v. Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 720 (W.D. Tex. 2013). Together, the public and private factors demonstrate that Austin is not a more favorable venue in which to litigate these claims.
1. The Private Factors do not favor transfer. Defendants fail to discuss each of the delineated private factors. The private interest factors include: (1) ease of access to sources of proof; (2) availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. First, Defendants present no facts or arguments that Austin provides easier access to sources of proof than San Antonio. HJ&C adopt the arguments and authorities advanced by the San Antonio Plaintiffs articulating the appropriateness of the San Antonio Division of the Western District venue. Although Defendants have filed this Motion specifically to dismiss and transfer the claims brought by the HJ&C, it is important to remember that the State is seeking to dismiss all of the individual plaintiffs’ claims in San Antonio and have all plaintiffs’ claims consolidated with the suit filed in Austin. After suits were filed in San Antonio, the State filed suit in Austin against most of the Plaintiffs suing the State in the San Antonio case. Defendants do not address the second private factor: Compulsory process is no more available to secure witnesses in Austin than it is in San Antonio. Defendants do not address the cost of witness attendance, and there is no evidence that the cost of witness attendance would be lower in Austin. Finally, Defendants argue that because Texas currently maintains a lawsuit against some
20

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 15 of 16 of the Plaintiffs in Austin, the consolidated cases should also be transferred. As discussed above, Defendants’ Austin lawsuit is an improper request for an advisory opinion and is a thinly veiled attempt at depriving Plaintiffs of their chosen venue. In fact, the large number of the consolidated Plaintiffs in San Antonio makes San Antonio a superior venue to Austin. The private factors do not favor transfer to Austin.
2. The Public Factors do not favor transfer. Similarly, Defendants fail to discuss each of the public factors. The public interest factors include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws. Volkswagen of Am., 545 F.3d at 315 (quoting In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)). Defendants do not allege any administrative difficulties flowing from court congestion in San Antonio. The San Antonio Court held an evidentiary hearing with a full day of testimony. Exhibits were admitted into evidence, and there has been substantial briefing by the parties
pursuant to a scheduling order for such briefing. The status of the Austin case, where a series of Motions to Dismiss the State’s claims remain pending, pales by comparison. Defendants do not argue that there are any issues regarding familiarity of this court with the applicable law. The Austin division is no more capable of handling these claims than the San Antonio division.
Multiple consolidated Plaintiffs reside in San Antonio, and they maintain an interest in having these issues resolved in San Antonio. Instead of addressing the individualized public factors, Defendants rely on an argument that Austin is a proper venue where Defendants conduct their official duties. The mere existence of another proper venue is not sufficient to show that such venue is clearly superior to the venue chosen by Plaintiffs. HJ&C’s interests are clearly aligned with the plaintiffs in the San Antonio case, and to maintain a separate case in Austin is duplicative and wastes the Courts’ time. All of the parties had an opportunity to participate in the
20

Case 5:17-cv-00404-OLG Document 167 Filed 07/17/17 Page 16 of 16 preliminary injunction hearing held in San Antonio. The public factors do not favor transfer to the Austin division.
IV. CONCLUSION For the foregoing reasons, Defendants’ Motion to Dismiss or Transfer HJ&C’s Complaint in Intervention should be denied.

DATED: July 17, 2017 P:

Respectfully Submitted,
ROLANDO L. RIOS 115 E. Travis, Suite 1645 San Antonio, Texas 78205 Ph (210) 222-2102 Fax: (210) 222-2898 E-mail: rrios@rolandorioslaw.com LAW OFFICES OF ROLANDO L. RIOS

By: /s/ Rolando Rios ROLANDO L. RIOS Attorney for the TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS

CERTIFICATE OF SERVICE
I hereby certify that all the parties to this Cause have been notified of this Response in Opposition to Defendants’ Motion to Dismiss or Transfer Complaint in Intervention through the electronic filing system used by the federal courts.
/s/ Rolando L. Rios_ Rolando L. Rios

20

 
 Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ REPLY IN SUPPORT OF MOTIONS TO
DISMISS OR TRANSFER

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 2 of 7
Plaintiff-Intervenors Travis County (ECF No. 128), the City of Dallas (ECF No. 160) and Texas Association of Hispanic County Judges and County Commissioners (ECF No. 167) largely repeat arguments that Texas has fully addressed in prior briefing to the Court. See ECF Nos. 32-1, 84. Texas therefore makes just a few short points in reply. First, the case law that Travis County cites does not support its contention that venue is proper in San Antonio and improper in Austin. Second, Austin is the only proper venue for this pre-enforcement facial challenge to a law that was debated and enacted within the Austin Division. Finally, Plaintiff-Intervenors collectively spend pages and pages of their briefs attacking Texas’s standing to assert its declaratory judgment action in the Austin Division. But these arguments are irrelevant because, as this Court has already recognized, whether Texas has standing to pursue that case is not a decision for this Court to make. And regardless of how Judge Sparks rules on the pending motions to dismiss filed by the defendants in the Austin Division, venue would still be proper in Austin and improper here. The Court should grant Texas’s motions to dismiss or transfer.1 I. Venue Is Improper in San Antonio.
As Texas has already asserted, none of the venue criteria under 28 U.S.C. § 1391 have been satisfied. No Defendant resides in the San Antonio Division and, more importantly, the events giving rise to this action did not occur within the division. See ECF No. 32-1 at 2–6. Venue is improper under 28 U.S.C. § 1406.
Travis County asserts that one of the cases that Texas cites in support of this proposition, Chapman v. Dell, Inc., No. EP-09-CV-7-KC, 2009 WL 1024635 (W.D. Tex. Apr. 15, 2009) actually supports the County’s position because the Court did not
1 On June 20, 2017, the Court held Texas’s Motion to Dismiss or Transfer the Consolidated Cases in abeyance pending a decision on subject matter jurisdiction in the Austin Division case. ECF No. 66. Texas is well aware of the Court’s order but files this reply for the Court’s review at the time it resolves this issue.
1

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 3 of 7
transfer venue under 28 U.S.C. § 1406. ECF No. 159 at 6. But the County neglects to mention that the Chapman court ultimately ordered the case—a class action employment suit—to be transferred from the El Paso Division to the Austin Division under 28 U.S.C. § 1404, relying in part on several considerations that are present to an even greater degree in this litigation. The Court noted that the plaintiff-employees did not live in the El Paso Division but rather worked in the Austin Division. Id. at *4. The defendant-employer’s headquarters were likewise located in Austin. Id.
If considerations of an employer’s business locale can play such a prominent role in the determination of proper venue in an employment discrimination case between private parties, surely the location of the governmental officials who debated and enacted SB 4 must play a crucial consideration to the proper venue of a preenforcement challenge to a law that was debated and enacted in the Austin Division— the seat of Texas government. As Texas has explained, the “general rule in suits against public officials is that a defendant’s residence for venue purpose[s] is the district where he performs his official duties.” Fla. Nursing Home Ass’n v. Page, 616 F.2d 1355, 1360 (5th Cir. 1980), rev’d on other grounds, Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147 (1981). Thus, Austin is the appropriate venue for challenges to SB 4 regardless of the outcome of other pending litigation in the Austin Division. Chapman does not stand for the contrary principle, which would establish a rule that Plaintiffs could sue wherever they desire (El Paso, Brownsville, or Amarillo) merely because the theory of Texas government exists throughout the state. II. Austin Is Where All Claims in This Litigation Arose.
As mentioned above, in addition to Austin being the residence of the Texas officials who have been sued, the new law was enacted and signed in Austin. The Austin Division is required, not only because of the requirement of 28 U.S.C. § 1391(c)(2), but “because the operative facts have significant connection to this
2

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 4 of 7
[division].” Significant to venue is where “a substantial part of the events or omissions
giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). In that SB 4 is Texas law, the only events that give rise to this pre-enforcement facial dispute are those that surround the lawmaking process, all of which occurred in Austin. See, e.g., Fla. Hometown Democracy, Inc. v. Browning, 08-CV-80636-CIV, 2008 WL 3540607, at *4 (S.D. Fla. Aug. 12, 2008); N. Ky. Welfare Rights Ass’n v. Wilkinson, No. 90-6268, 1991 WL 86267, at *5 (6th Cir. 1991) (unpublished decision) (“venue in this case was proper only in [the capital]. That is where all of the [government officials] have their official residences; it is the district most convenient to the [government officials]; and it is the district which has the weightiest contacts with the plaintiffs’ claim.”).
The entire basis of Plaintiffs’ arguments—that they will face harm in San Antonio at some point in the future—is purely speculative, given that SB 4 has not yet taken effect. The recent amicus briefs filed by the Major Cities Chiefs Association and Harris County demonstrate this precise point. See ECF No. 165 at 3 (arguing that SB 4 will cause harm if it takes effect); ECF No. 166 at 3 (same). Finally, any argument that venue can lie in a “place of injury” “is contrary to the venue statute and the weight of jurisprudence.” Gray Cas. & Sur. Co. v. Lebas, No. CIV.A. 12-2709, 2013 WL 74351, at *2 (E.D. La. Jan. 7, 2013). For all of these reasons, venue is proper in the Austin Division. III. Texas’s Standing in the Austin Litigation Is Irrelevant.
All three Plaintiff-Intervenors argue at length that the Austin litigation will eventually be dismissed because Texas lacks standing to bring its declaratory judgment action. ECF No. 159 at 8–15; ECF No. 160 at 8–14; ECF No. 167 at 7–14. Apart from being incorrect for reasons that Texas has already briefed, ECF No. 84 at 4–5, these contentions are irrelevant. Indeed, this Court has held Texas’s Motion to Dismiss or Transfer Venue the Consolidated Cases in abeyance “pending a decision
3

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 5 of 7 on subject matter jurisdiction in the case pending in the Austin division.” ECF No. 66 at 2. Thus, the Court has already recognized that the decision on whether venue is proper over the declaratory judgment action is one for the Austin court to decide. Moreover, the ultimate issue for resolution in this Court is whether venue is proper in Austin and improper in San Antonio. Under the relevant case law, venue is improper in San Antonio and proper in Austin. See Sections I & II, supra. Accordingly, this case should be dismissed or transferred regardless of the ultimate result of Texas’s pending declaratory judgment action.
CONCLUSION Plaintiff-Intervenors’ Complaints in Intervention should be dismissed, or, at minimum, transferred to the Austin Division for consolidation with Texas v. Travis County, No. 1:17-cv-425-SS (W.D. Tex.).
4

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 6 of 7
Respectfully submitted this the 20th day of July, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov WILLIAM T. DEANE Texas Bar No. 05692500 bill.deane@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
5

Case 5:17-cv-00404-OLG Document 171 Filed 07/20/17 Page 7 of 7 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 20th day of July, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
6

 
 Case 5:17-cv-00404-OLG Document 174 Filed 07/20/17 Page 1 of 42

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
CITY OF EL CENIZO, TEXAS; MAYOR RAUL L. REYES, CITY OF EL CENIZO; MAVERICK COUNTY; MAVERICK COUNTY SHERIFF TOM SCHMERBER; MAVERICK COUNTY CONSTABLE PRECINCT 3-1 MARIO A. HERNANDEZ; and LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Plaint ffs

JUL 202017

WCELSETREK,RNUSOlfll1?ITICO1FOTLE!XRAKS

BY

NU DEPV

V.
STATE OF TEXAS; GOVERNOR GREG ABBOTT, in his official capacity; and TEXAS ATTORNEY GENERAL KEN PAXTON, in his official capacity
Defendants

Civil Action No. 5:1 7-CV-404-OG [Lead Case]

EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY, in his official capacity; and the TEXAS ORGANIZING PROJECT EDUCATION FUND
Plaint ffs
V.
STATE OF TEXAS; GOVERNOR GREG ABBOTT; ATTORNEY GENERAL KEN PAXTON; and DIRECTOR STEVE MCCRAW, TEXAS DEPARTMENT OF PUBLIC SAFETY in their official capacities
Defendants

Civil Action No. 5:17-C V-459-OG [Consolidated Case]

Case 5:17-cv-00404-OLG Document 174 Filed 07/20/17 Page 2 of 42

)

CITY OF SAN ANTONIO, TEXAS;

)

BEXAR COUNTY, TEXAS;

)

CITY OF EL PASO, TEXAS,

)

REY A. SALDA1JA, in his official

)

capacity as San Antonio City

)

Councilmember; TEXAS ASSOCIATION )

OF CHICANOS IN HIGHER EDUCATION; )

LA UNION DEL PUEBLO ENTERO; and )

WORKERS DEFENSE PROJECT

)

Plaint ffs

"p

STATE OF TEXAS; GREG ABBOTT, in

his official capacity as Governor of the

State of Texas; KEN PAXTON, in his

official capacity as Attorney General of

)

Texas )

Defendants )

Civil Action No. 5:1 7-CV-489-OG [Consolidated Case]

FIRST AMENDED COMPLAINT OF CITY OF SAN ANTONIO, TEXAS, BEXAR COUNTY, CITY OF EL PASO, TEXAS,
REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO, AND WORKERS DEFENSE PROJECT

I. INTRODUCTION 1. On May 7, 2017, Texas Governor Greg Abbott signed into law Senate Bill 4 ("SB 4"), explaining that SB 4 was intended to force local jurisdictions to enforce federal immigration law. SB 4 robs local jurisdictions of their ability to supervise police officers and protect public safety, and coerces local law enforcement into dedicating limited resources to enforcement of federal immigration law. SB 4 forbids local governments and their employees from adopting,

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enforcing, or even endorsing policies that "prohibit or materially limit the enforcement of
immigration laws," including SB 4 itself. SB 4 targets immigrants and the communities in which they live for expanded law enforcement activities, despite the well-documented economic
contributions and lower crime rates of immigrants. The effect of SB 4 will make all Texans less safe and be devastating to Texas local governments and institutions of higher education as it hijacks their authority to enact policies that best fit their localities' unique needs.
2. SB 4 imposes draconian monetary, criminal, and removal from office penalties on
local officials and employees' as well as "campus police departments,"2 if they depart from the legislation's immigration enforcement requirementseven though Congress has occupied the field of immigration enforcement and compliance with SB 4 would subject local governments to liability for violating the constitutional rights of Texans. Plaintiffs City of San Antonio, Bexar County, City of El Paso, San Antonio City Councilmember Rey A. Saldafla, Texas Association of Chicanos in Higher Education ("TACHE"), La Union Del Pueblo Entero ("LUPE"), and Workers Defense Project ("WDP") (collectively, "Plaintiffs") seek a declaration that SB 4 is unconstitutional and seek an injunction against its implementation because it violates the Supremacy Clause, Contracts Clause, and the First, Fourth, and Fourteenth Amendments of the
'SB 4, Section 1.01, Subchapter C, Section 752.051, subd. (5), defines "local entities" as:
"(A) the governing body of a municipality, county, or special district or authority, subject to Section 752.052; (B) an officer or employee of or a division, department, or other body that is part of a municipality, county, or special district or authority, including a sheriff,
municipal police department, municipal attorney, or county attorney; and (C) a district attorney or criminal district attorney." S.B. 4, 2017 Leg., 85th Sess. (Tx. 2017). 2 SB 4, Section 752.051(1), defines "campus police department" as "a law enforcement agency
of an institution of higher education." The Texas Education Code defines "Institution of higher education" as "any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as
defined in this section." Tex. Educ. Code Ann. § 6 1.003(8) (West 2012).
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United States Constitution, and Section 2 of the Voting Rights Act of 1965. II. JURISDICTION AND VENUE
3. This Court has original jurisdiction under 28 U.S.C. § 1331 and 1343 over
Plaintiffs' causes of action under the laws of the Constitution of the United States. This Court has original jurisdiction over Plaintiffs' request for declaratory and injunctive relief under 28 U.S.0 § 2201 and 2202. Venue is proper in this District under 28 U.S.C. § 1391 (b).
III. PARTIES 4. Plaintiff CITY OF SAN ANTONIO, TEXAS is a home rule municipality organized under the laws of the State of Texas and is located in Bexar County, Texas. Plaintiff
CITY OF SAN ANTONIO has the constitutional and statutory authority to set policies and regulations, and to administer health and social service programs for its residents, including those residents that are immigrants. Plaintiff CITY OF SAN ANTONIO includes its public
officials who face civil fines, criminal prosecution and the injury of removal from office for adopting, enforcing or endorsing policies that violate SB 4. Plaintiff CITY OF SAN ANTONIO faces injury-in-fact from SB 4 in the form of drained resources through forced compliance with SB 4's provisions, substantial civil penalties for non-compliance with the law, and the associated budget uncertainty as a result of those penalties and the costs associated with training its police officers and administrative staff on federal immigration law. Plaintiff CITY OF SAN ANTONIO faces mandamus actions and injunctions for violating SB 4. Due to SB 4's provision that mandates compliance with all immigration detainers, Plaintiff CITY OF SAN ANTONIO faces liability for violating the Constitutional rights of individuals detained in San Antonio and the prospect of having to pay damages for those violations.
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5. Plaintiff BEXAR COUNTY is a county organized under the laws of the State of Texas. Bexar County encompasses the City of San Antonio and smaller surrounding cities. The U.S. Census 2016 population estimate for Plaintiff BEXAR COUNTY was 1,928,680. Plaintiff BEXAR COUNTY is governed by a County Judge and four commissioners and delivers services in the areas of building and maintaining roads, overseeing the administration of correctional
facilities, including the county jail, providing and operating the county courthouse, administering elections, collecting property taxes and protecting against threats to public health. Plaintiff BEXAR COUNTY's officials and employees face the injuries of criminal prosecution, civil liability, heavy fines and removal from office under SB 4. Plaintiff BEXAR COUNTY faces additional injury from SB 4 in the form of drained resources through forced compliance with SB 4's provisions, substantial civil penalties for non-compliance with the law, the associated budget uncertainty as a result of those penalties and the costs associated with training staff on federal immigration law. Plaintiff BEXAR COUNTY faces mandamus actions and injunctions for violating SB 4. Due to SB 4's provision that mandates compliance with all immigration detainers, Plaintiff BEXAR COUNTY faces liability for violating the Constitutional rights of individuals detained in the county jail and the prospect of having to pay damages for those violations. Plaintiff BEXAR COUNTY faces additional injury from SB 4 in the form of drained resources as a result of administering elections to replace officials removed from office for violating SB4.
6. Plaintiff CITY OF EL PASO, TEXAS is a home rule municipality organized
under the laws of the State of Texas and is located in El Paso County, Texas. Plaintiff CITY OF
EL PASO has the constitutional and statutory authority to set policies and regulations, and to administer health and social service programs for its residents, including those residents that are
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immigrants. Plaintiff CITY OF EL PASO includes its public officials who face the injury of removal from office for adopting, enforcing or endorsing policies that violate SB 4. Plaintiff CITY OF EL PASO faces injury-in-fact from SB 4 in the form of drained resources through forced compliance with SB 4's provisions, substantial civil penalties for non-compliance with the law, and the associated budget uncertainty as a result of those penalties and the costs associated with training its police officers and administrative staff on federal immigration law. Plaintiff CITY OF EL PASO faces mandamus actions and injunctions for violating SB 4. Plaintiff CITY OF EL PASO further faces liability for violating the Constitutional rights of individuals detained in El Paso and the prospect of having to pay damages for those violations.
7. Plaintiff REY A. SALDANA is a San Antonio City Councilmember for District 4. SB 4 provides for the removal of officials from elective office for adopting, enforcing or endorsing policies that "prohibit or materially limit" the enforcement of immigration laws. This provision encompasses Plaintiff REY A. SALDANA's policymaking and political speech, including speaking publicly against SB 4 itself and current federal immigration enforcement and policies, and introducing city ordinances that would limit compliance with SB 4. Plaintiff REY
A. SALDANA also faces heavy fines and removal from office for speaking critically of SB 4,
criticizing federal immigration enforcement practices or adopting, enforcing or endorsing policies that violate SB 4. SB 4 greatly diminishes Plaintiff REY A. SALDANA's ability to fully
and adequately represent the needs of his constituents. Plaintiff REY A. SALDANA was elected by his constituents to advocate on their behalf, including advocating for policies that protect public safety and reduce racial profiling. SB 4 causes Plaintiff REY A. SALDANA actual and
imminent harm.
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8. Plaintiff TEXAS ASSOCIATION OF CHICANOS iN HIGHER EDUCATION ("TACHE") is a statewide professional association committed to the improvement of educational and employment opportunities for Latinos and Chicanos in higher education. TACHE's members
include: elected officials of community college districts; administrators, counselors, professors, staff and students at four-year and community colleges; and institutional members such as
community colleges and universities throughout Texas. TACHE members will be injured by SB
4's limitations on their policies and speech. For example, TACHE members who are officials or employees of community colleges will not be able to adopt, enforce or endorse policies that
differ from SB 4 or current immigration enforcement policies in their classrooms without facing debilitating penalties including lawsuits and heavy fines. TACHE members who are community college trustees face removal from office for adopting, enforcing or endorsing policies that "prohibit or materially limit" the enforcement of immigration laws. TACHE members who are college students and employees face the injury of racial profiling and unwarranted questioning and detention by untrained and unsupervised campus police officers seeking to assist federal immigration authorities.
9. Plaintiff LA UNION DEL PUEBLO ENTERO ("LUPE") is a community union that provides social services, English classes, and helps communities organize to advocate for better living conditions. LUPE has over 8,000 members throughout the Texas Rio Grande Valley. Most of LUPE's members are Latino and some are immigrants who are not authorized to be present in the United States. LUPE members will be injured by SB 4, and LUPE will be injured as an organization by SB 4. The injuries imposed by SB 4 on LUPE's members include deterred interaction with public safety or local government agencies for fear of immigration
questioning and detention, and increased racial profiling of LUPE members by untrained and

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unsupervised local police officers seeking to assist federal immigration authorities. 10. Plaintiff WORKERS DEFENSE PROJECT ("WDP") is a membership-based
organization that works to enable low-income workers to achieve fair employment through
education, direct services, and strategic partnerships. Many of WDP' s members are Latino, and
some are immigrants who are not authorized to be present in the United States. WDP members will be injured by SB 4, and WDP will be injured as an organization by SB 4. The injuries imposed by SB 4 on WDP's members include deterred interaction with public safety or local
government agencies for fear of immigration questioning and detention and increased racial profiling of WDP members by untrained and unsupervised local police officers seeking to assist
federal immigration authorities.
11. Defendant STATE OF TEXAS is a constituent political entity of the United States of America and subject to the laws and Constitution of the United States.
12. Defendant GREG ABBOTT is Governor of Texas. Defendant ABBOTT is the chief executive officer and the chief law enforcement officer of the State of Texas. Defendant ABBOTT is responsible for ensuring that the laws of Texas are faithfully executed, including the provisions of SB 4. Defendant GREG ABBOTT is sued in his official capacity.
13. Defendant KEN PAXTON is the Attorney General of the State of Texas. Defendant PAXTON is the officer authorized to bring suit for mandamus or injunctive relief to
force compliance with SB 4. He is also authorized to bring a removal action against a public official who has violated SB 4. Defendant PAXTON is sued in his official capacity.
IV. FACTUAL ALLEGATIONS A. Federal Immigration Scheme 14. The Immigration and Nationality Act ("INA") governs immigration to the United
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States, the terms under which non-citizens live in the United States, and citizenship. The INA is
codified under Title 8 of the United States Code.
15. Under the INA, unauthorized presence in the United States, by itself, is a civil offense, not a criminal offense.
16. The INA thoroughly regulates the enforcement of immigration, including the
circumstances under which immigration arrests are made and who enforces immigration law.
17. The NA provides that arrests of non-citizens pending a decision on removal are
made pursuant to a warrant issued by the Attorney General (now Secretary of DHS) according to his or her discretion. 8 U.S.C. § 1226(a). Warrantless arrests are made by federal officers under limited circumstances set out in the NA. 8 U.S.C. § 1357 (a) (2) (limiting the authority of
immigration officers to make warrantless arrests to situations in which the non-citizen "is likely to escape before a warrant can be obtained.").
18. Authority to detain non-citizens is similarly proscribed by the NA. See, e.g. 8
U.S.C. § 1231 and 8 U.S.C. § 1226(a). When an individual is undocumented, the discretion to detain or release that individual rests with federal officers. See id. and 8 C.F.R. 236.1. When an individual is detained, federal regulations provide the opportunity to appeal his or her continued
detention or the conditions of release from detention. See 8 C.F.R. 1003.19. 19. Another provision of the NA, 8 U.S.C. 1357, titled "Powers of immigration
officers and employees," sets out the authority of DHS officers and employees to, among other
things, "interrogate" an individual "believed to be an alien as to his right to be or to remain in the United States." 8 U.S.C. § 1357 (a) (1).
20. The NA prescribes the limited circumstances under which federal, state, and local officials cooperate in immigration enforcement. Section 2 87(g) of the NAcodified at 8
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U.S.C. § 1 357(g)enables state or local law enforcement to enter into agreements with ICE that
authorize designated and trained local law enforcement officers to perform immigrationenforcement functions under federal supervision. Section 1 357(g)(1) states:
{T]he Attorney General may enter into a written agreement with a State, or any
political subdivision of a State, pursuant to which an officer or employee of the
State or subdivision, who is determined by the Attorney General to be qualified to
perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent
consistent with State and local law. 21. In order to participate in an agreement under 8 U.S.C. 1357(g), state or local law enforcement officials must meet stringent criteria, at their own expense, including, but not
limited to, receiving adequate training on enforcement of federal immigration laws. 8 U.S.C. § 1 357(g)(2)(6).
22. Agreements under 8 U.S.C. 1357(g) limit participation to those officers or
employees "determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the
United States." 8 U.S.C. § 1357(g). 23. Although the DTA provides that a local officer can otherwise "cooperate" with
federal authorities in immigration enforcement, in all circumstances in which the INA contemplates local cooperation with federal authorities in immigration enforcement, local activities are supervised by federal authorities. 8 U.S.C. 1 357(g)(3) provides: "In performing a
function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General."

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24. The INA imposes no obligation on local jurisdictions to ask about immigration
status or otherwise to enforce immigration law. The NA also does not require any state or
locality to enter into an agreement under 8 U.S.C. 1357(g).
25. The NA limits its requirements of states and localities to the following provision
in 8 U.S.C. § 1373(a): [A] Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or 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. 26. 8 U.S.C. § 1373 does not require state or local government officials to collect,
maintain, or report information regarding the immigration status of individuals. Instead, it bars policies that prohibit local entities from exchanging such information with federal officials.
27. A May 31, 2016 memorandum of the Inspector General of the U.S. Department of Justice confirmed that § 1373 "does not 'require' the disclosure of immigration status
information."3
28. Neither § 1373 nor any other provision of federal law contains a penalty for noncompliance with § 1373.
29. In all of the NA provisions that set forth ways in which federal, state, and local
governments cooperate in immigration enforcement, the cooperation is voluntary on the part of
the local government, not mandatory.
30. The NA provides that federal officers may issue a detainer to federal, state, or local officials who have custody of a non-citizen arrested for violation of "any law relating to
Memorandum from Michael E. Horowitz, Inspector General, to Karol V. Mason, Ass't Att'y Gen., Office of Justice Programs, 5 n. 7 (May 31, 2016), available at https://oig.justice.gov/reports/201 6/1 607.pdf.
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controlled substances." 8 U.S.C. 1357(d). This same provision requires federal agents to
"effectively and expeditiously take custody of the alien" if the federal, state, or local officials
decide not to follow the detainer. 31. Federal regulations codified at 8 C.F.R. § 287.7 authorize federal officials to issue
immigration detainers to "any other Federal, State, or local law enforcement agency" and further
provide that "[t]he detainer is a request that such agency advise [ICE], prior to the release of the
alien, in order for [ICE] to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible." 8 C.F.R. § 287.7(a) (emphasis added).
B. Texas Senate Bill 4 32. SB 4 authorizes local police officers and other local employees to make immigration inquiries and otherwise "assist" in federal immigration enforcement. At the same time, SB 4 prohibits local officials and employees from adopting, enforcing or endorsing any policy that "prohibits or materially limits" the enforcement of immigration laws. The penalty for adopting, enforcing or endorsing a limit on immigration enforcement includes heavy monetary fines, even for individual law enforcement officers. The severe penalties for "adopting, enforcing or endorsing" any policy that "prohibits or materially limits" the enforcement of immigration laws, in combination with broad, undefined authority to "assist" in federal immigration enforcement, will force local officers and their supervisors to enforce federal immigration law in order to avoid liability for violating SB 4 and the ensuing harsh punishment. SB 4 "Adopt, Enforce or Endorse" Provisions 33. In a section titled "Policies and Actions Regarding Immigration Enforcement," SB 4, Section 752.053(a), provides:
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[A] local entity or campus police department may not: (1) adopt, enforce, or endorse a policy under which the entity or department prohibits or materially
limits the enforcement of immigration laws; (2) as demonstrated by pattern or practice, prohibit or materially limit the enforcement of immigration laws; or (3)
for an entity that is a law enforcement agency or for a department, as
demonstrated by pattern or practice, intentionally violate Article 2.251, Code of
Criminal Procedure.
34. SB 4's "Definitions" section 752.05 1 defines "immigration laws" to mean "the laws of this state or federal law relating to aliens, immigrants, or immigration" and includes SB 4
itself.
35. SB 4 defines "local entity" as "the governing body of a municipality, county, or special district or authority," and "an officer or employee of or a division, department, or other body that is part of a municipality, county, or special district or authority, including a sheriff,
municipal police department, municipal attorney, or county attorney; and district attorney or criminal district attorney...." Section 752.052(5). Because "special districts" in Texas include community college districts, SB 4 reaches the conduct of community college trustees as well as community college administrators and professors.
36. SB 4 further sweeps in campus police departments, which are defined as "law
enforcement agenc[ies] of an institution of higher education." Section 752.05 1(1).
37. SB 4 provides that "a local entity or campus police department" may not "prohibit or materially limit" an employee such as a police officer, corrections officer, booking clerk,
magistrate, or prosecuting attorney from inquiring into the immigration status of a person "under
lawful detention," exchanging the information with other governmental agencies, or maintaining the information. Section 752.053(b).
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38. SB 4 defines "lawful detention" as "the detention of an individual by a local entity, state criminal justice agency, or campus police department for the investigation of a
criminal offense." Section 752.051(4). As a result, SB 4 prohibits local governments and campus police departments from prohibiting their officers and other employees from conducting immigration questioning of individuals stopped for minor offenses such as jaywalking, driving
with a broken tail-light, or allowing a 17-year-old to ride in the bed of a pickup truck. 39. Although SB 4 purports to exempt immigration questioning of individuals who
are crime victims or witnesses, or who are reporting a criminal offense, SB 4 does not allow local governments and campus police departments to prohibit their officers and other employees
from conducting immigration questioning of these victims or witnesses if "the officer determines
that the inquiry is necessary to . . . investigate the offense[.]" Sections 752.05 1(4) & 752.057(1). 40. SB 4 provides that "a local entity or campus police department" may not "prohibit
or materially limit" its employees from "assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance[.]" Id.
41. SB 4 also provides that "a local entity or campus police department" may not "prohibit or materially limit" those same employees from "permitting a federal immigration officer to enter and conduct enforcement activities at a jail to enforce federal immigration laws."
Id. 42. SB 4 creates a system under which local governments and campus police
departments are unable to guide, supervise or impose limits on immigration questioning and enforcement by their police officers and employees. As a result, police officers and employees, untrained and unsupervised, are free to conduct immigration enforcement activities at their own
discretion and pursuant to their own understanding of the law. If they do not conduct these
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enforcement activities, they face individual liability for adopting, enforcing or endorsing a policy that materially limits immigration enforcement.
43. SB 4 prohibits local governments and campus police departments from limiting their police officers and employees from, and permits those same employees to engage in, "providing enforcement assistance" to federal immigration officers even where federal policy prohibits immigration enforcement activities, such as in sensitive locations like schools and churches.
44. SB 4 also prohibits local governments and campus police departments from limiting their police officers and employees from, and permits those same employees to engage in, "providing enforcement assistance" to federal immigration officers even where federal law would require a warrant to detain a non-citizen.
45. SB 4 prohibits local governments and campus police departments from limiting their police officers and employees from, and permits those same employees to engage in,
"providing enforcement assistance" to federal immigration officers outside the requirements of a
287(g) agreement under which local law enforcement officers are trained and supervised by the federal government.
46. SB 4's system, under which local police and other employees conduct their own
immigration status inquiries and provide "enforcement assistance," will expose local governments and campus police departments to liability under the Fourth Amendment and will
lead to violation of the rights of Texas residents.
47. SB 4 also fails to sufficiently warn local governments and campus police departments as to what specific conduct is unlawful. The undefined phrase "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the
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enforcement of immigration laws" is so vague and overbroad that it does not provide local
entities and campus police with enough information to understand what policies they are not allowed to adopt, endorse, or enforce.
48. The phrase "assisting or cooperating with a federal immigration officer" is likewise too vague to give local governments and campus police departments enough information to know what they can and cannot prohibit their officers and employees from doing.
49. SB 4 prohibits local governments and campus police departments from adopting policies that protect public safety by encouraging residents to report crime without fear that interaction with local officers will result in immigration questioning and detention.
50. Under SB 4, untrained and unsupervised local police officers and other employees
of local governments and campus police departments will disproportionately question and detaIn
foreign-born and Latino individuals, especially those that do not have a Texas driver's license. 51. SB 4 prevents elected officials such as city council members, county
commissioners, and community college trustees from debating changes in their local governments' approach to immigration enforcement and drastically limits political speech with the threat of lawsuits, substantial fines, and removal from office.
SB 4 Detainer Provisions 52. SB 4 defines an immigration detainer request as a "federal government request to
a local entity to maintain temporary custody of an alien, including a United States Department of
Homeland Security Form 1-247 document or a similar or successor form." Section 772.0073.
53. SB 4's definition of an "immigration detainer request" sweeps in less formal requests, including oral or written requests that fall short of a DHS Form 1-247.
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54. SB 4 requires "a law enforcement agency that has custody of a person subject to
an immigration detainer request issued by United States Immigration and Customs Enforcement [to] (1) comply with, honor, and fulfill any request made in the detainer request provided by the federal government[.]" Art. 2.251(a).
55. SB 4 removes a local government's discretion to decline cooperation with an ICE detainer because of concerns that continued local detention of the individual would create potential Fourth Amendment liability, such as after the individual has posted bond, filed a habeas petition, or where criminal charges have been dropped.
56. SB 4 grants local police greater power to conduct immigration-related warrantless arrests than what is granted to federal officers by Congress under 8 U.S.C. § 1357(a)(2). ICE officers may make warrantless arrests only when there is reason to believe that the individual is (1) not lawfully present, and (2) likely to evade detention by immigration officers before a warrant can be obtained. SB 4, on the other hand, compels warrantless arrests, via mandatory
enforcement of immigration detainers, without any requirement that the detaining officer have
reason to believe that the detainee is unlawfully present and likely to evade detention by immigration officers.
57. SB 4 further requires employees of local law enforcement agencies to review immigration documents and make immigration determinations in order to decide whether to continue to hold an individual pursuant to an ICE detainer. Art. 2.251(b) ("A law enforcement agency is not required to perform a duty imposed by Subsection (a) with respect to a person who has provided proof that the person is a citizen of the United States or that the person has a lawful immigration status in the United States, such as a Texas driver's license or similar government-
issued identification.").
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58. SB 4 does not define "lawful immigration status." Furthermore, SB 4 does not
explain what types of "similar government-issued identification" suffice to prove "lawful
immigration status."
SB 4 Penalty Provisions 59. In his signing statement, Defendant Abbott emphasized the heavy penalties on
local officials for violating SB 4: "Now this law imposes penalties up to $25,000 per day and it can lead to jail time and removal from office for any official who refuses to comply[.]"
60. The penalty for violating Section 752.053 is between $1,000 and $1,500 for the first violation, and between $25,000 and $25,500 for each subsequent violation. Section 752.056.
61. SB 4 creates "a misdemeanor involving official misconduct," punishable by up to a year in jail, for any "sheriff, chief of police, constable or person who has primary authority for administering a jail to knowingly fail to comply with an ICE detainer request issued concerning a person in his or her custody[.]" Section 5.01, Section 87.03 1, Sec. 39.07
62. For elected officials, failure to comply with Section 752.053 could additionally
result in the extraordinary penalty of removal from "elective or appointive office of a political subdivision" of the State of Texas. Section 752.0565.
63. SB 4 provides that "citizens" may file sworn complaints with the Attorney General, Defendant KEN PAXTON, alleging that a local jurisdiction or campus police department is violating Section 752.053. The Attorney General may then sue the jurisdiction for injunctive relief to force compliance.
64. SB 4 further authorizes the Attorney General to bring suit against a public officer
to whom SB 4 applies and, if the officer is convicted, the officer will be removed from office.
Section 752.0565.
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C. Legislative History of SB 4 65. The bill known as SB 4 was filed in the Texas Legislature by Senator Charles Perry on November 15, 2016. SB 4 was introduced in the Senate on January 24, 2017 and referred by the Lieutenant Governor to the Senate State Affairs Committee that same day. 66. On January 31, 2017, during his State of the State address to both chambers of the Texas Legislature, Defendant GREG ABBOTT declared that passing so-called "anti-sanctuary city" legislation was one of four emergency items, thus ensuring quicker passage when compared to non-emergency bills. Defendant GREG ABBOTT stated: "To protect Texans from deadly danger, we must insist that laws be followed." 67. Prior to SB 4's filing, Defendant GREG ABBOTT claimed that public safety was threatened by Texas counties exercising discretion in deciding when to comply with requests by U.S. Immigration and Customs Enforcement to detain individuals in local jails. In an October 26, 2015 letter to Dallas County Sheriff Lupe Valdez, who had earlier announced that she would honor ICE detainer requests on a case-by-case basis, Defendant GREG ABBOTT warned that her policy would fail to "keep dangerous criminals off the streets" and "leaves the State no choice but to take whatever actions are necessary to protect our fellow Texans." 68. In January 2017, Defendant GREG ABBOTT wrote to Travis County Sheriff Sally Hernandez, who had adopted a similar policy of exercising discretion in deciding which ICE detainer requests to follow, that "individuals subject to ICE detainers pose grave threats to public safety." He further stated that the Travis County policy "is a dangerous game of political Russian roulette with the lives of Texans at stake." In February 2017, Defendant GREG ABBOTT cut approximately $1.5 million in state grant funds to Travis County because of its detainer policy. The grant funds were used to support programs related to family violence,
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veterans' court, juvenile court, and programs in other areas of the criminal justice system. 69. The sponsor of SB 4, Senator Perry, claimed that the bill was intended to address
"criminal aliens that have committed heinous crimes." 70. SB 4 was heard in the Senate State Affairs Committee on February 2, 2017.
Fewer than 10 people registered in support of the bill and over 1,000 people registered in
opposition to the bill. During the 16-hour Senate Committee hearing, 332 people testified against the bill.
71. At the beginning of the hearing, Senator Joan Huffman, chair of the Senate State
Affairs Committee, assured the public that written testimony would be considered by the Committee. However, at the end of the hearing, the Committee swiftly passed SB 4, without reviewing the written testimony of 97 witnesses submitted that day.
72. Witnesses at the Senate hearing pointed out that SB 4 reached well beyond ICE detainers and authorized local police officers to question suspected undocumented immigrants in
a variety of settings, as well as to enforce federal immigration law.
73. Nevertheless, on February 7, 2017, during the Senate floor debate on SB 4, Senator Perry continued to claim that "my bill does not impact those that are here illegal, undocumented that are providing work and food for their family as long as they don't commit a crime that they're hauled in where a detainer request occurs. That's all it applies to is the guys that break the law."
74. A second justification for SB 4 offered by Senator Perry is that the bill was necessary to enforce federal immigration law. In his closing remarks on SB 4, Senator Perry explained: "There's three institutions created: basically marriage, government and church. Those are the three institutions that we answer to in scripture. Specifically though, government's role is
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to protect good and punish evil. It's to provide a basis for social stability, social order, so that we
as a nation can have a viable, vibrant place to discuss gospel and other religions for that matter in this country." Senator Perry continued: "[The Book of] Judges is very clear: When the people
asked for a king, he said you won't like this. And if you want to get to the heart of what this bill is about, it's allowing kings to be made on local jurisdictions, to pick and choose how they're going to apply our civil law. That's SB 4 in a nutshell."
75. Senator Perry concluded: "All SB 4 says is that whatever the law of the day at the federal level, apply it. When we have those individuals that, here's the problem, the way I understand it, they can pretty much unilaterally say we're not going to do any detainers and be in compliance with the law at some level. But when it's picking and choosing what part of those detainer processes you choose, you've created a de facto state immigration system. So if you really want to know the truth, those people who are doing it are probably out of compliance with federal law because they've created a state immigration system, because they've said, 'we'll do this one, but we won't do that one,' and they've prohibited what's already allowed today. SB 4 didn't create new federal law."
76. The Senate voted 20-11 to pass the bill. No minority race legislator voted for the
bill. Only 3 of the 33 amendments to SB 4 offered in the Senate by Latino senators were adopted. 77. On March 15, 2017, the House State Affairs Committee heard over 10 hours of
public testimony on SB 4. Over 465 people registered to testif' against the bill and only seven registered in support of it.
78. Again, witnesses, including children, testified that under SB 4, local police were authorized to stop and question any individuals about their immigration status and that this would lead to detention and removal of undocumented members of the community.
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79. Also at the March 15, 2017 House State Affairs Committee hearing, Rep. Geren
announced that he planned to narrow the scope of SB 4's Section 752.053(b)(1) to authorize
local officers to conduct immigration inquiries only when an individual had been arrested, as opposed to when an individual was lawfully detained. The following day, House State Affairs
Committee Chairman Byron Cook told the Texas Tribune that, after listening to the testimony of
witnesses, he thought the Committee could also narrow SB 4 to include only the provision requiring compliance with ICE detainer requests.
80. Rep. Cook stated, according to the Texas Tribune: "If you look at this on the big picture [level], all we're really needing to do, all that's really been said is that local jurisdictions need to honor federal detainer requests," noting Travis County was the only outlier. "And what the testimony indicated once again last night is that though one sheriff deviated for a short period of time, all our law enforcement agencies across the state are in fact honoring detainer requests, as they're supposed to."
81. On April 12, 2017, when the Committee reported out SB 4, the bill language restricted immigration inquiries under 752.053(b)( 1) to individuals under arrest. However, the bill was not limited to honoring ICE detainers.
82. On April 20, 2017, the House State Affairs Committee sent SB 4 to the House Calendars Committee, which passed the bill out in less than one hour. SB 4 was placed on the House Emergency Calendar and heard on the House floor on April 26, 2017.
83. When laying out the bill to the full House, SB 4's House sponsor Rep. Charlie
Geren described SB 4 as having no effect on undocumented immigrants who had not committed crimes. Rep. Geren admitted on the House floor that he could not name any "sanctuary"
jurisdictions, that ICE knows of no Texas jurisdiction or local official that is not cooperating
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with ICE detainer requests, and that the overwhelming majority of law enforcement officers who

testified said that SB 4 would make Texans less safe. Rep. Geren further admitted that local

police officers have no skills or training to determine immigration status.

84. Representative Anchia, speaking against SB 4, argued that if SB 4 was admittedly

not necessary to ensure compliance with ICE detainers, not tailored to apply only to individuals

arrested for serious crimes, and that the majority of law enforcement witnesses testified that SB 4

would not make Texans safer, that he did not know how to "connect the dots" on SB 4.

85. During the House floor debate, Rep. Mart Schaefer introduced an amendment to

expand the scope of SB 4 to authorize local officers to question the immigration status of any

individual in a "lawful detention," in addition to arrest. Multiple attempts to amend the "Schaefer

amendment" to exempt from immigration questioning vulnerable populations such as children,

veterans, pregnant women, homeless individuals, and those in domestic violence shelters failed.

The House passed the "Schaefer amendment" 84-64.

86. The House departed from procedural norms by suspending the rules to skip debate

half on 70 almost

of the 145 pre-filed amendments.

87. SB 4 passed to second reading on a 93-54 vote on April 26, 2016. The House

passed SB 4 on third reading with a 94-53 vote the following day on April 27, 2016.

88. On May 3, 2017, the Senate moved to concur with the House amendments to SB

4. The next day, both chambers signed the bill and sent it to Defendant GREG ABBOTT.

89. Defendant GREG ABBOTT signed SB 4 on May 7, 2017.

90. In his signing statement, Defendant Greg Abbott described the intended targets of

SB 4 as "people who have committed dangerous crimes" and "known criminals accused of

violent crimes." He further described failure to comply with ICE detainers as "endangering our

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citizens" with "deadly consequences." 91. SB 4 takes effect on September 1,2017. 92. During the legislative process surrounding SB 4, sheriffs from Texas' largest
metropolitan counties, including Bexar, Dallas, Harris, El Paso, and Travis, wrote in a series of opinion-editorials published across the state that SB 4 would "perpetuate instability by making it impossible for us to effectively direct and manage our deputies" and would "coerce local law enforcement to dedicate frequently scarce resourcessuch as jail-space, on-duty time of officers
and local tax dollarsto a job that is supposed to be done and funded by the federal
government." 93. Local law enforcement executives also expressed concern that their officers
would tread into illegal conduct while trying to comply with SB 4. For example, Sheriff Salazar of Plaintiff BEXAR COUNTY stated publicly that if SB 4 "is misapplied you could very easily cross the line into racial profiling." Likewise, Plaintiff CITY OF SAN ANTONIO Police Chief William McManus told reporters that since an officer is not prohibited from inquiring about the immigration status of a person lawfully detained, "You can be asked for jaywalking, you can be asked if you're deemed to be intoxicated in public. Any ordinance that is currently on the books that one may violate and you're stopped for, you can be asked for your immigration status."
94. Undocumented college students and their allies collected over 13,000 petition signatures against SB 4. The undocumented college student petition stated: "Texas campuses like mine are now included in anti-sanctuary, anti-immigrant Senate Bill 4, running the risk of turning my university police department into federal immigration law enforcement. Something they are not trained to do."
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95. The debate and passage of SB 4 tainted the remainder of the Texas Legislative Session. On May 29, 2017, the last day of the Legislative Session, in response to chanting in the
House Gallery by peaceful, mostly Latino individuals opposing SB 4, State Representative Matt
Rinaldi approached Latino lawmakers on the House floor, taunting "I called ICE on all of them.. .They need to deport all these illegals."
96. When reminded by Rep. Cesar Blanco that Rep. Rinaldi comes from an immigrant background, Rep. Rinaldi responded, "The difference between those people and my family is that my family loves America." In the ensuing argument, Rep. Rinaldi threatened to
"put a bullet in [the] head" of Rep. Nevarez. Media reports of Rep. Rinaldi's actions sparked additional harassment of Latino legislators by members of the public.
97. On May 31, 2017, U.S. Immigration and Customs Enforcement confirmed that
Rep. Rinaldi indeed made a report to ICE on the last day of the legislative session. D. Community Trust Policies in Texas
98. The estimated 1.65 million undocumented persons in Texas comprise about 6
percent of the state's total population.4 That includes between 114,000 to 194,000 children. An
estimated 834,000 Texas children live with one or more undocumented parents.5
99. Almost all (an estimated 89%) of the undocumented population in Texas is of
Mexican or Central American origin. 100. Research, including a recent 2015 Cato Institute report, shows that immigrants are
no more, and often less, likely to commit crimes than the U.S.-born population.
Pew Research Center, US. Unauthorized Immigration Population Estimates, Nov. 3, 2016, https://goo.gl/HaNFhO.
Capps, R., Ct. al. (2016). A Profile of US. Children With Unauthorized Immigrant Parents. Table A-2. Washington, DC: MPI.
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101. In 2006, a report by the Texas State Comptroller on the economic impact of undocumented immigration showed that undocumented individuals produced more in state revenue than they received in state services and that the absence of the undocumented population would have resulted in a loss of billions of dollars to Texas' gross state product. Since the release of the 2006 report, the Texas Legislature has not directed the Comptroller to study the economic impact of undocumented immigrants.
102. External researchers have helped to fill the void. Recent reports show consistent
net economic benefits of undocumented workers in Texas; for example, a study by the Perryman Group estimated the total net economic benefits of undocumented workers in Texas at $663.4
billion in total expenditures and almost $290.3 billion in gross product each year. The study also estimated that undocumented immigrants create more than 3.3 million jobs when indirect and induced effects are considered.
103. To ensure public safety, and in recognition of both the economic value that immigrant communities bring and that they commit crimes at a lower rate, many cities and counties throughout and outside of Texas have adopted policies that limit when local police officers inquire about an individual's immigration status. These policies encourage immigrants to, among other things, cooperate with law enforcement personnel to prevent, investigate, and solve crimes. These policies also promote public health by encouraging immigrants to seek healthcare when needed, including immunizations; and the policies protect the health and welfare of U.S. citizen children whose parents are undocumented. Colleges and universities similarly have adopted community trust policies to fulfill their mission of educating local
students, and to ensure campus safety.
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104. Plaintiff CITY OF SAN ANTONIO has an estimated 1.49 million residents and Latinos make up approximately 63% of those residents. About 14% of San Antonio's population is foreign-born. There are an estimated 71,000 undocumented persons in Bexar County and an estimated 66,000 are of Mexican and Central American descent. An estimated 22,000 children in Bexar County live with one or more undocumented parent.
105. Plaintiff CITY OF EL PASO has a total population of 683,080 according to the U.S. Census. Over 80% of El Paso residents are Latino and approximately 24% of El Paso
residents are foreign born. An estimated 66,000 people in El Paso County are undocumented and
98% of the undocumented population is from Mexico or Central America. 106. Immigrants play a significant role in the San Antonio and greater Bexar county
economies. Although they comprise approximately 14.3 percent of the city's total metro labor force, immigrants make up a disproportionate number of the city's entrepreneurs and business owners (16.4%). They are also self-employed at almost double the rate of San Antonio's nativeborn population (10.2% compared with 5.2%, respectively).6 In relation to their native-born counterparts, immigrants are over represented in San Antonio's construction and food service
industries.
107. As the Texas Association of Business noted in its letter to lawmakers opposing SB 4, the "rich binational commerce from which Texas benefits is key to building our workforce
and remaining competitive in a global marketplace." In San Antonio, Mexican nationals substantially contribute to the economy when they come to vacation, shop, visit family, or
conduct business. For example, a 2012 report by the San Antonio Hispanic Chamber of Commerce showed that visitors from Mexico generated a spending output in Bexar County of
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$359,303,612, which supported over 3,974 jobs and an added $215,906,290 to the county's gross domestic product. The same study showed that spending by Mexican nationals generated a spending output in El Paso County of $399,760,138.
108. The San Antonio Police Department ("SAPD") has a longstanding practice of cooperating with federal law enforcement, including in the execution of federal warrants, honoring immigration detainers requests, and allowing ICE officials into the City's Central Magistrate Office where detained individuals are processed. Police Chief William McManus cooperates with ICE but believes that the scope of that cooperation must be at the Chief's
discretion consistent with local law enforcement policy, objectives, and resource constraints. 109. SAPD officers are neither trained nor adequately qualified to enforce the very
complex federal immigration laws. SB 4 will take away the discretion of its police chief to utilize resources in a way that is best for the San Antonio community, and permitting San
Antonio officers to assume immigration enforcement tasks without supervision will be detrimental to public safety.
110. Under former Bexar County Sheriff Susan Pamerleau, Bexar County complied with all ICE detainer requests except where an inmate was transferred to another facility or after
the 48-hour period of detainment expired. On March 23, 2016, before the Texas Senate
Subcommittee on Border Security, Sheriff Pamerleau affirmed that "[Bexar County] honor[s] federal guidelines and follow[s] the law." However, the Sheriff also reiterated that the County does not participate in 287(g). She testified that there is no reason to have local law enforcement deputized at the expense of local taxpayers.
111. Persons arrested in San Antonio are taken to the City of San Antonio Detention
Center ("Detention Center"). The Detention Center holds between 60,000 to 100,000 detainees a 27

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year. Normally, detainees are allowed to bond out within 18 hours, or if they are not eligible to
bond out, they are transferred to the Bexar County Jail. ICE officers give written immigration detainer requests to the Office of The Division Chief of the County Magistrate Court. The City holds most detainees subject to ICE detainers at the Detention Center for up to 18 hours, and then transfers those that are not picked up by ICE, with a copy of the ICE detainer attached to their file, to county jail. Due to concerns about public safety and overcrowding, the City does not hold detainees with only Class C misdemeanors under ICE detainers, but by agreement ICE may assume immediate custody of persons charged with Class C offenses.
112. Despite its cooperation with ICE, Plaintiff SAN ANTONIO fears it will be prosecuted for violating SB 4 because of its modest restrictions on ICE's access to City detainees.
113. Although Plaintiff SAN ANTONIO does not consider itself a "sanctuary jurisdiction," since November 2015 it has had a policy (Procedure 618.11 RaciallBias Profiling/Immigration Policy) that instructs its police officers neither to question the immigration status of those arrested nor detain individuals solely on the basis of their immigration status. It also prohibits officers from making decisions regarding immigration status and deportability. Former County Sheriff Pamerleau testified to a similar policy in effect in Bexar County. In order to protect public safety, San Antonio City and Bexar County police officers work to cultivate an environment where everyone, regardless of immigration status, feels comfortable interacting
with police officerswhether supporting law enforcement or seeking their assistance. 114. The primary mission of law enforcement in the Plaintiff jurisdictions is to work
with the community to help prevent and investigate crime. Plaintiff jurisdictions are convinced
that the immigrant community will no longer cooperate with police if SB 4 is implemented and
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that SB 4 will discourage immigrants from reporting crimes and participating in health and social service programs, such as the federally-funded Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Plaintiff jurisdictions also fear that SB 4 will lead to unlawful racial profiling of its immigrant and Latino community.
115. To foster a community of trust with San Antonio's immigrant and Spanishspeaking community, in January 2015, Plaintiff San Antonio started the UNIDOS program. UNIDOS is a community policing initiative that focuses on the Spanish-speaking and immigrant community and that involves meetings to discuss topics such as crime prevention, immigration, and cultural differences between the United States and the home countries of various immigrant groups.
116. The San Antonio Police Department program was such a success that, when
Javier Salazar became Sheriff of Bexar County, he established an UNIDOS program at the county level as well. His goal was to help build trust within the community to ensure that
immigrants, and people who live with and near them, felt comfortable reporting crime.
117. Plaintiff City of El Paso similarly has a policy providing that officers may not
arrest an individual based solely on citizenship status. 118. SB 4 will force municipalities to expend their own limited resources such as jail-
space, on-duty time of officers, and local tax dollars to immigration enforcement. Many jurisdictions, including Plaintiff jurisdictions, simply do not have the public safety resources or flexibility in their budget to task their officers with the additional responsibility of enforcing
federal immigration law. 119. In a letter to the Texas Senate State Affairs Committee, Bexar County Sheriff
Salazar noted, "[s]imply stated, with a strained workforce and limited manpower, we do not have

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the capability nor the infrastructure to house undocumented people who do not have active
warrants or criminal charges." Furthermore, referencing the costs of SB 4 to Bexar County, the
Sheriff stated that federal programs such as 287(g) "weigh heavily on local taxpayers and Bexar
County resources." Indeed, Texas county jails incurred costs of complying with ICE detainer
requests that totaled approximately $61 million in 2016. Plaintiff Bexar County had about $1.7
million in detainer costs in 2016.
120. San Antonio Police Chief McManus stated that SB 4 would not only override the
City's policies, but it would also result in racial discrimination. During a press conference, Chief
McManus said, "Anyone that's under arrest, anyone that is lawfully detained on the street will be
subject to be questioned about their immigration status. . . If I stopped you on the street. . . and I
talked to you, I might ask you for your papers. You have an accent, you're darker complected
than I am, does that mean you're not legal? According to [SB 4], it might. It absolutely is
profiling."
121. On February 2, 2017, Chief McManus testified against SB 4 before the Senate
State Affairs Committee, stating that:
San Antonio is not a 'sanctuary city.' However, I have some serious concerns with [SB 4] and the impact it would have on our primary duty, which is to handle calls for service and work with the San Antonio community to improve the
quality of life in their neighborhoods.... Our mission is to create a safe environment and reduce crime, a task that requires appropriate allocation of funding and complete discretion for police chiefs to direct their officers. I'm concerned that the bill would take away from the discretion of local police chiefs to utilize resources in a way that is best for their communities and that the addition of immigration enforcement duties would actually be detrimental to the public safety. The trust San Antonio has built up with the whole community is
integral to our ability to investigate, prevent, and solve crime. Our main concern is that the bill will erode this trust, which will affect crime reporting and investigations as many, many people would be less likely to speak to the police
out of fear of deportation.... SB 4 would detract from local law enforcement's
effectiveness.
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122. Chief McManus also told Senators that SB 4 "usurps the authority of police chiefs
to direct their departments." He said: "We simply do not have the capacity to handle immigration
laws as well as enforcing the laws of the Penal Code[.]"
123. Similarly, during the House State Affairs Committee hearing on March 15, 2017,
San Antonio Assistant Chief of Police Anthony Treviño testified against SB 4 stating:
This bill will undermine the relationship that San Antonio Police Department has forged with communities it is protecting by creating fear within the most
vulnerable segments of our population and discouraging victims of crime from
communicating with law enforcement.... Requiring law enforcement agencies to enforce immigration law will keep officers from performing their primary duties,
which is to protect residents of San Antonio which will be detrimental to the relationship between communities and police departments. I firmly believe that, as law enforcement officers, we have a fundamental responsibility to protect all people from harm, regardless of what their status is.. .Chief McManus and I share over 60 years of law enforcement experience and, based upon that experience and established best practices and feedback from city leadership and from the community, the Chief is best equipped to determine the policies that direct officers on how they serve the citizens of our community.... We are concerned with any legislation that would limit the chief's authority to have a policy that bars officers from inquiring about the immigration status of individuals they come into contact with. It's evident that SB 4 will limit the ability of the San Antonio Police Department and law enforcement agencies throughout the state to effectively protect the communities that they serve by eroding the public trust between the law enforcement community and the communities that we serve.
V. PLAINTIFFS FACE IMMINENT HARM UNDER SB 4
124. Plaintiffs face imminent harm under SB 4, including, but not limited to: draining
of limited public resources; the restriction of protected speech; the threat of hefty fines; the threat
of removal from office; the threat of liability for constitutional violations; and the threat of racial
profiling for members of WDP, LUPE, and TACHE. Unless enjoined by this Court, the civil and
criminal provisions of SB 4 will impermissibly burden the constitutional rights of Plaintiffs.
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125. Under SB 4, members of plaintiffs LUPE and WDP can be stopped, detained, arrested, questioned, and transferred to custody of federal immigration agents by local law
enforcement officers. Undocumented individuals will be deterred from seeking legal help from
and participating in advocacy efforts with LUPE and WDP because of SB 4. Under SB 4, LUPE and WDP members' constitutional rights will be violated due to mandatory enforcement of
immigration detainers, being unlawfully detained and questioned about their immigration status,
and being racially profiled because of their Latino heritage. Through its removal from office provision, SB 4 will dilute the voting power of LUPE and WDP members in violation of Section 2 of the Voting Rights Act.
126. Plaintiffs LUPE and WDP members would otherwise have standing to sue, the interest they seek to protect are germane to their organization's purpose, and neither the claims
asserted nor the relief requested require the participation of the individual members in this
lawsuit. 127. Plaintiff TACHE's members face civil fines, injunctions and removal from office
under SB 4. TACHE members who are faculty and staff at community colleges are prohibited
from speaking out against or being critical of SB 4 and of federal immigration enforcement policies. A central tenet of higher education is the ability for students, staff, and faculty to engage in analysis and critique of current affairs. The vague, sweeping provisions of SB 4 that prohibit "endorsing" policies that "prohibit or materially limit the enforcement of immigration
laws" will deter TACHE members from exercising their First Amendment rights and from doing work that is crucial to their roles as educators and administrators, including engaging their students in discussions about immigration policies. In addition, TACHE's undocumented
members will be deterred from attending classes and campus events because of fear of being
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questioned by campus police about their immigration status. TACHE members also will be
subject to racial profiling and unlawful detentions because of their Latino heritage. TACHE members who are elected trustees of community colleges will face removal from office for violating SB 4 if they "adopt, enforce or endorse" a prohibited policy. Finally, the voting strength of individual Latino members of TACHE will be minimized in violation of Section 2 of the Voting Rights Act. Plaintiff TACHE has associational standing to sue on behalf of its
members because its members would otherwise have standing to sue, the interests TACHE seeks to protect are germane to its organization's purpose, and neither the claims asserted nor the relief
requested require the participation of the individual members in this lawsuit.
128. Plaintiffs CITY OF SAN ANTONIO, BEXAR COUNTY, and CITY OF EL PASO fear substantial civil penalties and costs associated with implementing SB 4. These jurisdictions face mandamus and injunction for violating SB 4 and face liability for violating the
Constitutional rights of their residents and non-residents. i/I. CAUSES OF ACTION FIRST CAUSE OF ACTION
SB 4 VIOLATES THE SUPREMACY CLAUSE OF THE U.S. CONSTITUTION 129. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 130. SB 4 regulates matters that are exclusively reserved to the federal government because it operates in a field over which Congress has exercised exclusive authority and because it conflicts and interferes with the implementation and enforcement of federal laws and regulations.
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SECOND CAUSE OF ACTION
SB 4 VIOLATES THE FREEDOM OF SPEECH CLAUSE OF THE 1ST AMENDMENTS TO THE U.S. CONSTITUTION

D 14TH

131. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of

this complaint as though fully set forth here.

132. SB 4 is a content-based, viewpoint restriction because it only outlaws speech that

is critical of SB 4 and federal immigration enforcement.

133. SB 4 is unduly vague because it reaches and purports to prohibit speech that is

protected by the Freedom of Speech Clause of the First Amendment.

134. Section 752.0565 purports to remove from elective or appointive office

individuals who "endorse a policy that materially limits the enforcement of immigration laws."

This provision drastically limits political speech and its content.

135. The term "endorse" is unduly vague in that it reaches protected speech, and it is a

viewpoint restriction that only prohibits a certain kind of speech.

136. SB 4 is also void for vagueness because its provisions fail to give Plaintiffs notice

of what exact conduct is unlawful.

137. SB 4 violates the First Amendment as applied to the States through the Fourteenth

Amendment to the U.S. Constitution.

THIRD CAUSE OF ACTION
SB 4 VIOLATES ACADEMIC FREEDOM RIGHTS OF THE 1s AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION

138. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of

this complaint as though fully set forth here.

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139. The First Amendment to the U.S. Constitution prohibits Defendants from
abridging the academic freedom of Plaintiff TACHE's members. TACHE asserts this right on behalf of its members.
140. SB 4 abridges academic freedom in that it restricts the ability to control who teaches who is taught, what subjects are taught, and how those subjects are taught at Texas
institutions of higher education. Accordingly, SB 4 violates the First Amendment as applied to
the States through the Fourteenth Amendment to the U.S. Constitution. FOURTH CAUSE OF ACTION SB 4 VIOLATES THE 4TH AND 14TH
AMENDMENTS TO THE U.S. CONSTITUTION 141. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 142. The Fourth Amendment provides "[t]he right of people to be secure in their persons" and protects against "unreasonable searches and seizures" without a warrant and without probable cause. U.S. C0NsT. amend. IV. 143. SB 4 compels compliance with all ICE detainers and removes local jurisdictions' discretion to decide when to comply with detainers in order to ensure compliance with the Fourth Amendment. SB 4's requirement that local jurisdictions comply with all ICE detainers, no matter the circumstances, forces the jurisdictions to violate constitutional rights of individuals.
FIFTH CAUSE OF ACTION SB 4 VIOLATES THE PROCEDURAL DUE PROCESS CLAUSE OF
THE 14TH AMENDMENT TO THE U.S. CONSTITUTION 144. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here.
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145. The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring).
146. SB 4 is also void for vagueness because its provisions fail to give Plaintiffs notice
of what exact conduct is unlawful. 147. SB 4 forces local jurisdictions to deprive individuals of their liberty and property
interests without the constitutionally required procedural due process of law, in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
SIXTH CAUSE OF ACTION SB 4 VIOLATES THE SUBSTANTIVE DUE PROCESS CLAUSE OF
THE 14TH AMENDMENT TO THE U.S. CONSTITUTION 148. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 149. The Due Process Clause guarantees the right to justice applied consistently by police officers. SB 4 violates the due process clause because it grants total discretion to individual officers and prohibits any attempt to guide or control those officers. 150. SB 4 violates the Due Process Clause because it takes away local jurisdictions' discretion to decide when to comply with ICE detainers in order to ensure compliance with the Due Process Clause of the Fourteenth Amendment. This withdrawal of discretion requires local jurisdictions to honor detainer requests even when they conclude that doing so would violate the
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U.S. Constitution. 151. SB 4 is also void for vagueness because its provisions fail to give Plaintiffs notice
of what exact conduct is unlawful. 152. SB 4 forces local jurisdictions to deprive individuals of their liberty and property
interests without the constitutionally required substantive due process of law in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
SEVENTH CAUSE OF ACTION SB 4 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION 153. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though filly set forth here. 154. The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws." 155. SB 4 was enacted with the purpose of discriminating against Latinos and against immigrants. 156. State-compelled enforcement of federal immigration laws is not a compelling interest that justifies race-based discrimination. SB 4 is not narrowly tailored, and SB 4 is not the least restrictive means of achieving the requisite government interest. 157. There is also no rational basis for excluding the issue of immigration enforcement from any control or guidance by police chiefs, sheriffs, and other local leaders. 158. SB 4 requires local jurisdictions to single out Latinos and immigrants, including those with lawful permanent residence, and imposes a broad and undifferentiated disability on immigrants alone to seek and obtain preventive local guidance, policy, and protection from
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unlawful and arbitrary enforcement of laws. SB 4 prohibits all legislative, executive, or judicial action at any level of local government designed to protect or even guide individual police
officers in enforcing laws affecting immigrants.
159. SB 4 requires local jurisdictions to deprive individuals of equal protection of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment.
EIGHTH CAUSE OF ACTION SB 4 VIOLATES THE CONTRACTS CLAUSE OF THE U.S. CONSTITUTION 160. Plaintiffs incorporate all of the allegations contained in the previous paragraphs of this complaint as though fully set forth here. 161. The Contract Clause states that "[n]o State shall... pass any... [l]aw impairing the Obligation of Contracts." 162. SB 4 interferes with the contracts of undocumented students at public institutions of higher education, who were admitted to a public institution under an implied contract that they would be permitted to complete their degree program if they complied with the academic, financial, and behavioral conditions imposed equally on all students at the institution. 163. SB 4 also interferes with the contracts of employees of public institutions, who are considered "local entities," who will not be able to teach effectively due to the statute's endorsement ban. Professors are effectively under contract to each of their students. This contract will be substantially impaired by SB 4's ban on endorsing policies that "materially limit the enforcement of immigration laws," including SB 4 itself.
NINTH CAUSE OF ACTION SB 4 VIOLATES SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 164. Plaintiffs incorporate all of the allegations contained in the previous paragraphs
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of this complaint as though fully set forth here.

165. SB 4's provision for the removal from office of an elected official who is found to

have violated Sec. 752.053 results in a denial or abridgment of the right to vote of plaintiffs on

account of their race, color, or ethnicity, by having the effect of canceling out or minimizing

their individual voting strength of Latinos in Texas.

166. The removal of an elected official who is the preferred candidate of Latino voters,

in combination with Texas Code provisions providing for the official's replacement through a

decision of the governing body, does not afford Latino voters an equal opportunity to participate

in the political process and to elect representatives of their choice, and denies them the right to

vote in elections without distinction of race, color or previous condition of servitude.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the following relief:

i.

A declaratory judgment that SB 4, in its entirety, is unconstitutional;

ii.

An injunction prohibiting Defendants and their officials, employees, and agents

from implementing or enforcing SB 4;

iii.

An order awarding Plaintiffs costs and attorney's fees, under the statutes cited

herein, 42 U.S.C. § 1988, and any other applicable law;

iv.

Such other and further relief as this Court deems just and proper.

Dated: July 12, 2017

Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: Is! Nina Perales Thomas A. Saenz (CA Bar No. 159430 )* Nina Perales (TX Bar No. 24005046)
Marisa Bono (TX Bar No. 24052874) Celina Moreno (TX Bar No. 24074754)

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Case 5:17-cv-00404-OLG Document 174 Filed 07/20/17 Page 41 of 42
Andrea Senteno (NY Bar No. 5285341)* Tanya G. Pellegrini (CA Bar No. 2851 86)* 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 *By Pro Hac Vice Admission
Attorneys for Plaintiffs CITY OF SAN ANTONIO, REY A. SALDANA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO AND WORKERS DEFENSE PROJECT
CITY OF SAN ANTONIO By: /s/ Deborah Lynne Klein Deborah Lynne Klein Deputy City Attorney, Litigation SBN: 11556750 Office of the City Attorney Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205 (210)207-8940/(210)207-4357 Attorneys for Plaintiffs CITY OF SAN ANTONIO
SIDLEY AUSTIN LLP
By: /s/ Yolanda C. Garcia
Yolanda C. Garcia (TX Bar No. 240 12457)* Cory D. Szczepanik (TX Bar No. 24094973)* 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 Phone: (214) 981-3300 Facsimile: (214) 981-3400 ygarcia@sidley.com
cszczepaniksidley.com
Jose F. Sanchez (CA Bar No. 161362)* 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Phone: (213) 896-6000 Facsimile: (213) 896-6600
40

Case 5:17-cv-00404-OLG Document 174 Filed 07/20/17 Page 42 of 42 jose.sanchezsid1ey.com *By Pro Hac Vice Admission Robin E. Wechkin (WA Bar No. 24746)** 701 5th Avenue, Suite 4200 Seattle, WA 98104 Phone: (415) 439-1799 Facsimile: (415) 772-7400 rwechkin@sidley.com **pro Hac Vice Admission Pending Attorneys for Plaintiffs CITY OF SAN ANTONIO and REY SALDANA
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 Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, TEXAS, §

et al.,

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF HOUSTON,

§

TEXAS,

§

Intervenor

§

§

v.

§

§

THE STATE OF TEXAS, et. al. §

Defendants.

§

C.A. No. 5:17-CV-00404-OLG (Lead Case)
C.A. No. 5:17-CV-00459-OLG (Consolidated Case)
C.A. No. 5:17-CV-00489-OLG (Consolidated Case)

CITY OF HOUSTON’S OPPOSITION TO DEFENDANT THE STATE OF TEXAS’S MOTION TO DISMISS OR TRANSFER VENUE

Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 2 of 22
Plaintiff/Intervenor, the CITY OF HOUSTON (“Houston”), files this its Opposition to Defendant the State of Texas’s (“the State”) Motion to Dismiss or Transfer Venue [Dkt. 161, “State’s Motion”]. In support thereof, Houston would show as follows:
INTRODUCTION Plaintiff/Intervenor Houston has joined twenty-one other plaintiffs, including Texas cities, counties, their elected and appointed officials, as well as various organizations and associations, in this consolidated action challenging the validity and/or constitutionality of Senate Bill 4. Using the same generic motion it filed against all other plaintiffs and intervenors, the State seeks to dismiss or transfer Houston’s claims to another division within this same judicial district and to consolidate Houston’s claims with the State’s own in Case No. 1:17cv-425-SS, pending in the Western District’s Austin Division. [Dkt. 161, State’s Motion]. By its motion then, the State judicially admits that venue for Houston’s claims is proper in the Western District of Texas, which, as demonstrated below, is the relevant situs for venue purposes. As a result, the State asserts no legal basis for dismissing Houston’s claims on venue grounds. Instead, what the State actually seeks is an intra-district transfer to another division within the same judicial district. Such transfers for convenience are left to this Court’s sound discretion. Because the State offers only the most superficial argument for transferring Houston’s claims to another division within the Western District of Texas and venue is proper in the San Antonio Division, however, this Court should exercise its discretion to deny the State’s Motion.
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STANDARD OF REVIEW This Court has discretion to grant a motion to dismiss a claim for improper venue under 28 U.S.C. § 1406(a). Under Fed. R. Civ. P. 12(b)(3), once the State raises the issue of improper venue, Houston would ordinarily have the burden to prove that venue in the Western District of Texas is proper. Zurich Am. Ins. Co. v. Tejas Concrete & Materials, Inc., 982 F. Supp. 2d 714, 719 (W.D. Tex. 2013). Here, however, the State judicially admits and advocates for the idea that venue of Houston’s claims is proper in the Western District of Texas because they seek to transfer Houston’s claims [and those of every other plaintiff] to the Western District’s Austin Division. [Dkt. 161, State’s Motion, at 2, incorporating by reference Dkt. 32-1, State’s Memorandum of Law, at 1). For that reason, the State has failed properly to raise the venue issue under § 1406(a) and shift the burden to Houston. There is simply nothing for Houston to prove here. This Court, however, has discretion to transfer venue within this judicial district under 28 U.S.C. § 1404 or 1406, “[f]or the convenience of parties and witnesses, or in the interest of justice ….” 28 U.S.C. § 1404(a) (2011). That determination “will not be reversed on appeal absent an abuse of discretion.” Pateet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989), cert. denied, 493 U.S. 935 (1989) (citing Marbury-Patitillo Constr. Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (5th Cir. 1974)). Section 1406(a), however, provides for transfers from one division to another within the same judicial district only if venue in the chosen division is improper. “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 4 of 22
or division in which it could have been brought.” 28 U.S.C. § 1406(a) (1996) (emphasis supplied). The State has not, however, met its burden to show that Houston’s claim was filed in the wrong division or that the interests of justice will be served by a transfer. Its motion to transfer should, therefore, be denied.
ARGUMENTS AND AUTHORITIES I. EVEN THE STATE ADMITS THAT VENUE OF HOUSTON’S CLAIMS IS PROPER IN
THE WESTERN DISTRICT OF TEXAS UNDER 28 U.S.C. § 1391 A. Venue of Houston’s Claims is Proper in the Western District Because
Venue is Determined at the District, Not the Division Level The State’s request to dismiss Houston’s claims on venue grounds is groundless and based on the State’s fundamental misapprehension of applicable federal venue law. Federal venues statutes are clear: proper venue is determined at the district level, not at the division level. 28 U.S.C. § 1391 (2011). Because the State contends that venue of Houston’s claims lies in the Austin Division of the Western District of Texas, the State necessarily concedes that the Western District of Texas is a proper forum for such claims under 28 U.S.C. § 1391. [Dkt. 161, State’s Motion, at 2, incorporating by reference Dkt. 32-1, State’s Memorandum of Law, at 1]. Indeed, this Court held, in Tapia v. Dugger, No. SA-06-CA-0147-XR, 2006 WL 2620530, at *2 (W.D. Tex. Sept. 7, 2006), that venue was proper in the Western District of Texas, San Antonio division, because the movant, like the State here, argued that the plaintiff’s claim occurred in the Western District’s Del Rio Division, and thus conceded that the action arose in the Western District of Texas.
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 5 of 22
B. Venue of Houston’s Claims is Also Proper in the Western District Because the State “Resides” There
Houston originally sued only the State of Texas (the “State”). [Dkt. 139, Houston’s Complaint]. The State is “deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c); see, e.g., Icon Indus. Controls Corp. v. Cimitrex, Inc., 921 F. Supp. 375, 382 (W.D. La. 1996). Its residency is determined under § 1391(c)(2), which provides that “an entity with the capacity to sue and be sued … shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question ….” 28 U.S.C. § 1391(c)(2) (emphasis supplied). The State has sued Austin and other plaintiffs here in the Western District of Texas (and, therefore, submitted itself to personal jurisdiction there) and urges that Houston should have sued it in the Western District of Texas. Venue is, therefore, also proper in the Western District of Texas, San Antonio Division, because the State of Texas is deemed to reside in the Western District.
Although not currently relevant to Houston’s claims, the State also admits that all defendants, sued by other plaintiffs here, are residents of Texas who reside in the Western District. [Dkt. 32-1, State’s Memorandum of Law, at 4] (“[T]he Defendants sued in their individual capacities reside in Austin.”). The string cite of cases on which the State relies all recognize that venue based on residence of public officials is at the district level, not the division level. Id. at 5. Alternatively, this Court would have jurisdiction over and venue would be proper as to all defendants sued by every plaintiff in these consolidated cases
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because at least one defendant, the State, resides in the forum. 28 U.S.C. § 1391(b); Zurich Am. Ins. Co., 982 F. Supp. 2d at 722; In re Triton Ltd. Sec. Litig., 70 F. Supp. 2d 678, 68384 (E.D. Tex. 1999).
C. The Fact that Venue is Proper in More Than One Judicial District Does Not Render Venue Improper in the Western District
It makes no difference to the determination of proper venue for Houston’s claims that Austin may also be a proper venue for other plaintiffs’ claims against defendants other than the State of Texas. “Courts have recognized that ‘venue may be properly laid in more than one district ….” Zurich Am. Ins. Co., 982 F. Supp. 2d at 722-23 (citing VP, LLC v. Newmar Corp., No. 11-2813, 2012 WL 6201828, at *9 (E.D. La. Dec. 12, 2012)). Thus, the argument that the Austin Division is a proper venue based on the residence of two defendants does not mean that the San Antonio Division is not proper.
D. Because Venue Is Proper as to Multiple Plaintiffs’ Claims in The Western District and in This Division, Discretionary Venue Under 28 U.S.C. § 1391(b)(2) Is Also Proper for Houston’s Claims as Plaintiff/ Intervenor
Houston was granted permission to intervene in this suit. [Dkt . 138, Order]. Thus, venue is proper for Houston’s claim because “venue is proper as to all plaintiffs if suit is brought in a district where one or more of the plaintiffs resides.” E. Tex. Baptist Univ. v. Sebelius, No. H-12-3009, 2013 WL 4678016, at *7 (S.D. Tex. Aug. 30, 2013) (quoting Crane v. Napolitano, 920 F. Supp. 2d 724, 733 (N.D. Tex. 2013)). The analysis of the Sebelius court is apt here—the same considerations of consolidating multiple plaintiffs
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 7 of 22
into one action favors discretionary venue for all plaintiffs if any one of them has proper venue in the forum.
Two plaintiffs are located in the San Antonio Division of the Western District of Texas: the City of San Antonio and its City Council Member, Rey Saldana. One of the original plaintiffs in this case, LULAC, also has members located in San Antonio for venue purposes [Dkt. 21, at 3, n. 5], and Texas LULAC “has its corporate headquarters and principle office in San Antonio” [Dkt. 21, at 1].
Another plaintiff, TOPEF, is a resident of San Antonio who will suffer harm in San Antonio. [Dkt. 43, at 1]. TOPEF is “an education organization that promotes social, racial, and economic justice for all Texans by conducting strategic, year round community organizing in San Antonio, Houston, and Dallas.” [Dkt. 51, at 6]. MOVE San Antonio, another plaintiff “operating exclusively within San Antonio,” is also adversely impacted by SB4 in San Antonio [Dkt. 51, at 3]. A substantial number of the events and omissions giving rise to their claims occurred in the Western District of Texas, and, in particular, in the San Antonio Division. Id.
Finally, some of the remedies sought by these plaintiffs would be enjoyed in the San Antonio Division. LULAC seeks injunctive relief to prevent harm or injury to its members in San Antonio, and other places. [Dkt. 21, at 3].
The San Antonio Division does not have “to be the place where the most relevant events took place” for venue to be proper there, Zurich Am. Ins. Co., 982 F. Supp. 2d at 722 (citing McClintock v. Sch. Bd. E. Feliciana Par., 299 Fed. App’x 363, 365 (5th Cir.
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 8 of 22
2008)). The presence of co-plaintiffs and intervenors there is sufficient for venue of Houston’s claims under 28 U.S.C. § 1391(b)(2).
E. This Court Also Has Pendent Venue of Houston’s Claims Even if this Court could ignore the State’s admissions as to venue here, this Court should still retain Houston’s claims in the consolidated cases to facilitate the joinder of closely-related claims and to avoid piecemeal litigation. The pendent venue principle is well recognized, although not often invoked. Its exercise is a discretionary determination permitting a claim to be joined if the claims arise out of a common nucleus of operative facts. “Whether to apply pendent venue is a discretionary decision, based on considerations of judicial economy, convenience to the parties and the court, avoidance of piecemeal litigation, and fairness to the litigants.” Murangi v. Touro Infirmary, No. 6:11–cv–0411, 2011 WL 3206859, at *4 (W.D. La. June 29, 2011); see also City of Waco v. Schouten, 385 F. Supp. 2d 595, 599 (W.D. Tex. 2005) (court applied pendent venue to retain all claims in a single action); Elmalky v. Upchurch, No. 3:06-CV-2359-B, 2007 WL 944330, at * 7 (N.D. Tex. Mar. 28, 2007) (court found pendent venue over claim that arose from “a common nucleus of operative facts” and because “judicial economy is best served by adjudicating those claims in a single forum.”). Houston’s claims and those of the other plaintiffs in these consolidated cases clearly arise out of a common nucleus of operative facts: the injuries that Senate Bill 4 will inflict upon all cities in Texas and their officials and residents and the unconstitutionality of that statute. Conversely, it would make no sense for Houston’s
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 9 of 22
claims to be tried alone in another district. The doctrine of pendent jurisdiction was devised to handle cases just like this. This Court should utilize it here. II. THE STATE HAS FAILED TO DEMONSTRATE THAT THE BALANCE OF
CONVENIENCE WEIGHS SUBSTANTIALLY IN FAVOR OF TRANSFER OF HOUSTON’S CLAIM TO ANOTHER DIVISION WITHIN THE WESTERN DISTRICT A. The Balance of Factors Considered for Discretionary Venue Transfers
Weighs Heavily in Favor of This Court Retaining Jurisdiction in the San Antonio Division The State seeks, in the alternative, to transfer Houston’s claim (and the entire case) to the Austin division of the Western District of Texas. While 28 U.S.C. § 1404(a) permits transfer of an action to another division, that transfer is discretionary, not mandatory. “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought ….” 28 U.S.C. § 1404(a). “Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer.” Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., 134 S. Ct. 568, 580 (2013). The movant, here the State of Texas, bears the burden of demonstrating why the claim should be transferred. Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989), cert. denied, 493 U.S. 935 (1989). “To prevail, the movant must demonstrate the balance of convenience and justice weighs substantially in favor of transfer.” E.E.O.C. v. Mustang Mobile Homes, Inc., 88 F. Supp. 2d 722, 725 (W.D. Tex.
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 10 of 22
1999) (citing Gundle Lining Constr. Corp. v. Fireman’s Fund Ins. Co., 844 F. Supp. 1163, 1165 (S.D. Tex. 1994)) (emphasis supplied).
Section 1404(a) “speaks to the issue of the ‘convenience of the parties and witnesses’ and to the issue of ‘in the interest of justice.’” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). The factors are laid out as follows:
The determination of ‘convenience’ turns on a number of private and public interest factors, none of which [is] given dispositive weight. The private concerns include; (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. The public concerns include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum, with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or the application of foreign law. Id. Although a court must consider “[a]ll relevant factors to determine whether or not on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum,” the State has utterly failed to address in any meaningful way each of these factors. Peteet, 868 F.2d 1428 at 1436. For that reason alone, its motion for discretionary transfer should be denied.
1. The State Has Failed To Demonstrate that Private Factors Weigh in Favor of Transfer
In its Memorandum and Motion, the State provides nothing more than a passing reference to private factors, except for conclusory statements that they “should bear little on the outcome” but, “[t]o the extent they weigh into the Court’s analysis, they somehow
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 11 of 22
favor the Austin Division.” [Dkt. 32-1, State’s Memorandum of Law, at 10]. That is insufficient to demonstrate a substantial need to transfer Houston’s claims.
2. The State Has Failed to Demonstrate that the Convenience of the Witnesses Does Not Favor a Transfer
“‘The availability and convenience of witnesses is arguably the most important of the factors’” in the § 1404 analysis. Billiot v. W-Industries Inc., No. G-06-269, 2006 WL 2022899, at *1 (S.D. Tex. July 13, 2006) (citing LeBouef v. Gulf Operators, Inc., 20 F. Supp. 2d 1057, 1060 (S.D. Tex. 1998). Yet the State makes no effort to identify any witnesses who would be inconvenienced or unavailable, much less provide descriptions of any witness’s testimony so that the Court might assess the relative importance of the witnesses. The State’s position is further weakened by the multiple witnesses who were present in the courtroom to testify on behalf of the plaintiffs at the Court’s temporary injunction hearing in June 2017. Not one complained that the venue was inconvenient, including the State.
Instead of offering concrete facts to explain how Austin is a more convenient forum than San Antonio is for witnesses, the State argues that “it would make little practical difference to Plaintiffs like El Paso County, City of El Cenizo, and the many other public-interest organizations that this case be transferred to Austin.” [Dkt. 32-1, State’s Memorandum of Law, at 11]. Even if true, that is not proof that the San Antonio forum is improper. More important, this key factor of convenience to the witnesses, “often recognized as the most important factor in the transfer analysis,” is addressed only by the State’s supposition and guesses as to their convenience. See Aspen Specialty Ins. Co. v. Tech.
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 12 of 22
Ind., Inc., No. H-12-1903, 2012 WL 12930997, at *3 (S.D. Tex. Aug. 30, 2012). Without identifying any particular witnesses or describing their potential testimony, the State has not met its burden to support transfer of Houston’s claims to Austin. See Gaytan v. City of Rockdale Police Dep’t, No. A-07-CA-884 LY, 2008 WL 2937743, at *4-5 (W.D. Tex. July 22, 2005) (denying motion to transfer when movant failed to identify witnesses or describe their anticipated testimony).
The State also fails to attempt to demonstrate any practical problems that would result from the case’s proceeding in the San Antonio Division instead of the Austin Division, a mere 80 miles apart. To the contrary, the State argues that the geographic distance would “make little practical difference” to some of the plaintiffs. The same could be said of the State. Trying this case in San Antonio can be no more than a minor inconvenience to the State. It is not as if the case is “consigned to the wastelands of Siberia or some remote, distant area of the Continental United States.” Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523 (5th Cir. 1988) (noting the distance of 203 miles from one venue to the other was not sufficient to constitute an abuse of discretion in transferring a case). Transfer is not appropriate when “the only practical effect is to shift inconvenience from the moving party to the non-moving party.” Gayton v. City of Rockdale Police Dep’t, No. A-07-CA-884 LY, 2008 WL 2937743, at *3 (W.D. Tex. July 22, 2005) (quoting Goodman Co., L.P. v. A & H Supply Co., 396 F. Supp. 2d 766, 776 (S.D. Tex. 2005)).
The State likewise offers no facts to show the relative ease of access to sources of proof in Austin versus San Antonio. If anything, the State’s recitation of the home bases
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of various plaintiffs outside of either San Antonio or Austin serves to emphasize that the Austin venue gives no advantage to that factor. If this factor is neutral, the State has failed to meet its burden to show a substantial need for a discretionary transfer.
The State is also silent as to the availability of compulsory process to secure the attendance of witnesses. The State does not identify any witnesses who could not be compelled to testify in the Western District of Texas, San Antonio Division, or why the subpoena range of 100 miles under Rule 45(c) would be more advantageous in Austin than in San Antonio. Likewise, the State makes no argument that it would be more costly for willing witnesses to travel to San Antonio than to Austin. Thus, both of these factors are, at best, neutral and provide the State with no reason to transfer Houston’s claims.
The State also fails to analyze the factors in relation to Houston or any other specific plaintiff. In short, the State fails to show that the Austin division of the Western District is “clearly more convenient” than the San Antonio Division for Houston’s claims. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 865 (E.D. Tex. 2012) (citing In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)).
3. The State Has Failed To Demonstrate that Public Factors Weigh in Favor of Transfer
Although the State also claims that public factors favor transfer, it fails to prove any analysis or facts on any of those public factors. [Dkt. 32-1, State’s Memorandum of Law, at 11-12]. The State has, therefore, entirely failed to meet its burden to show that the public interest factors substantially weigh in favor of transfer to the Austin Division.
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4. The State Does Not Address Any Administrative Difficulties Flowing from Venue in the San Antonio Division
The State does not even attempt to argue that the Austin Division has a less crowded docket or that cases tend to proceed to trial faster in Austin than in San Antonio. The State offers no statistics as to the average length of time from case filing to disposition. See, e.g., ExpressJet Airlines, Inc. v. RBC Capital Mkts. Corp., No. H-09-992, 2009 WL 2244468, at *12 (S.D. Tex. July 27, 2009) (comparing statistical case load data for courts). As a result, it has failed to meet its heavy burden to show that transfer to Austin is wise or necessary.
5. The State Has Failed to Show that the Local Interest in Having Localized Interests Decided at Home Somehow Favors Transfer to the Austin Division
The State has also failed to meet its burden to show that Austin’s localized interests somehow weigh in favor of transfer. SB4 is intended to impact persons, cities, and counties all across Texas. San Antonio, in particular, with its large Hispanic population, has demonstrated in its complaint and evidence at the Court’s June 26, 2017, hearing that the localized interests of venue in San Antonio are quite significant. This factor thus weighs heavily against transfer to Austin.
6. The State Has Failed to Show that the Austin Division Courts are More Familiar with the Law that Will Govern the Case Than Those in San Antonio
The State makes no argument that this Court is less familiar than those in the Austin Division with the law that will govern this case. Indeed, this Court has recently
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 15 of 22
decided a case involving immigration detainers. See, e.g., Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL 2896021, at *1 (W.D. Tex. June 5, 2017). As a result, this Court is very familiar with the law applicable in this case. This factor then weighs heavily in favor of San Antonio venue.
7. The Avoidance of Unnecessary Problems of Conflicts of Laws or the Application of Foreign Law
The State does not argue this factor, it is not applicable here. III. THE STATE HAS FAILED TO MEET ITS BURDEN TO DEMONSTRATE THAT THIS
COURT SHOULD EXERCISE ITS DISCRETION TO TRANSFER HOUSTON’S CLAIMS TO AUSTIN Maintaining Houston’s claim in this Court serves the interests of judicial economy and avoids duplicative and piecemeal litigation. [Dkt. 27, Order Consolidating Civil Action Nos. 5:17-CV-459-OG and 489-OG into this proceeding]. In the event that this Court determines that Houston’s claim should be transferred to another court, however, then the appropriate court would be the Southern District of Texas, for the convenience of Houston’s witnesses. The State’s only argument for transfer to Austin is that the State filed a declaratory judgment action in Austin first, the purpose of which was to prevent other suits challenging its constitutionality in other venues. Houston is not a party to that suit, and other plaintiffs have submitted briefs demonstrating why the State’s choice of forum should not be given any weight. Moreover, a motion to dismiss the State’s unprecedented lawsuit is pending. The State’s rush to the courthouse to seek a stamp of approval for its legislative act signed into law mere hours earlier should be seen for what it was—an
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attempt to manufacture a claim so that it could forum shop. Its scheme should not
provide any grounds for depriving proper plaintiffs, such as Houston, of their choice of
forum.
PRAYER FOR RELIEF
The City of Houston respectfully requests that the Court deny the State’s
Motion to Dismiss or, in the Alternative, Motion to Transfer Venue.
Respectfully submitted,
CITY OF HOUSTON LEGAL DEPARTMENT
By: s/ Collyn Peddie RONALD C. LEWIS City Attorney State Bar No. 12305450 ronald.lewis@houstontx.gov Judith L. Ramsey Chief, General Litigation Section State Bar No. 16519550 judith.ramsey@houstontx.gov Patricia L. Casey Senior Assistant City Attorney State Bar No. 03959075 pat.casey@houstontx.gov Collyn A. Peddie Senior Assistant City Attorney State Bar No. 15707300 collyn.peddie@houstontx.gov Connica Lemond Senior Assistant City Attorney State Bar No. 24031937 connica.lemond@houstontx.gov Fernando De Leon Senior Assistant City Attorney
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 17 of 22 State Bar No. 24025325 fernando.deleon2@houstontx.gov 900 Bagby, 4th Floor Houston, Texas 77002 832.393.6491 – Telephone 832.393.6259 – Facsimile
Attorneys for Intervenor, City of Houston
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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 18 of 22

CERTIFICATE OF SERVICE
I hereby certify that on July 28th, 2017, I served the following attorneys with a true and correct copy of the foregoing document in accordance with Rule 5(b) of the Federal Rules of Civil Procedure.

s/ Collyn Peddie Collyn Peddie

ATTORNEYS FOR EL CENIZO PLAINTIFFS:

Andre I. Segura

asegura@aclu.org

Omar C. Jadwat ojadwat@aclu.org

Spencer Amdur

samdur@aclu.org

Lee Gelernt

lgelernt@aclu.org

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street

New York, New York 10004

212.549.2676 – Telephone

212.549.2654 – Facsimile

Cody Wofsy

cwofsy@aclu.org

Stephen B. Kang skang@aclu.org

Cecillia D. Wang cwang@aclu.org

AMERICAN CIVIL LIBERTIES UNION

39 Drumm Street

San Francisco, California 94111

415.343.0785 – Telephone

415.395.0950 – Facsimile

Edgar Saldivar

esaldivar@aclutx.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS

P.O. Box 8306

Houston, Texas 77288

713.325.7011 – Telephone

713.942.8966 – Facsimile

Max Renea Hicks rhicks@renea-hicks.com LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, Texas 78703 512.480.8231 – Telephone

Luis Roberto Vera, Jr.

lrvlaw@sbcglobal.net

LAW OFFICES OF LUIS ROBERTO VERA & ASSOCIATES, P.C.

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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 19 of 22

111 Soledad, Suite 1325 San Antonio, Texas 78205-2260 210.225.3300 – Telephone 210.225.2060 – Facsimile

ATTORNEYS FOR THE EL PASO COUNTY PLAINTIFFS:

Jo Anne Bernal

joanne.bernal@ca.epcounty.com

EL PASO COUNTY ATTORNEY

El Paso County Bldg.

500 E. San Antonio St., Room 203

El Paso, Texas 79901-2419

915.546.2083 – Telephone

915.546.2133 – Facsimile

Jose Garza

jgarza@trla.org

LAW OFFICE OF JOSE GARZA

7414 Robin Rest Dr.

San Antonio, Texas 78209

210.392.2856 – Telephone

Michael Patrick Moran

michael@ggmtx.com

GARZA GOLANDO MORAN, PLLC

115 E. Travis Street, Suite 1235

San Antonio, Texas 78205

210.892.8543 – Telephone

ATTORNEYS FOR TEXAS ORGANIZING PROJECT EDUCATION FUND PLAINTIFFS:

Efren Carlos Olivares

efren@texascivilrightsproject.org

TEXAS CIVIL RIGHTS PROJECT

1017 W. Hackberry

Alamo, Texas 78516

956.787.8171 – Telephone

956.787.6348 – Facsimile

Mimi M.D. Marziani

mimi@texascivilrightsproject.org

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, Texas 78741

512.474.5073 – Telephone

512.474.0726 – Facsimile

ATTORNEYS FOR SAN ANTONIO PLAINTIFFS:

Deborah L. Klein

deborah.klein@sanantonio.gov

OFFICE OF THE CITY ATTORNEY, LITIGATION DIVISION

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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 20 of 22

Frost Bank tower 100 West Houston Street, 18th Floor San Antonio, Texas 78205-3966 210.207.8919 – Telephone 210.207.4357 – Facsimile

Andrea E. Senteno

asenteno@maldef.org

Celina Y. Moreno

cmoreno@maldef.org

Marisa Bono

mbono@maldef.org

Nina Perales

nperales@maldef.org

Tanya g. Pellegrini

tpellegrini@maldef.org

John Paul Salmon

jsalmon@maldef.org

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF)

110 Broadway, Suite 300

San Antonio, Texas 78205

202.293.2828 – Telephone

202.293.2849 – Facsimile

Thomas A. Saenz

tsaenz@maldef.org

MALDEF

634 S. Spring Street, 11th Floor

Los Angeles, California 90014

213.629.2512 – Telephone

213.629.0266 – Facsimile

Cory D. Szczepanik

cszczepanik@sidley.com

Yolanda Cornejo Garcia ygarcia@sidley.com

SIDLEY AUSTIN, LLP

2021 McKinney Avenue, Suite 200

Dallas, Texas 75201

214.981.3300 – Telephone

214.981.3400 – Facsimile

Jose F. Sanchez

jose.sanchez@sidley.com

SIDLEY AUSTIN, LLP

555 West Fifth Street

Los Angeles, California 90013

213.896.6000 – Telephone

213.896.6600 – Facsimile

Robin E. Wechkin SIDLEY AUSTIN, LLP 701 5th Avenue, Suite 4200 Seattle, Washington 98104 415.439.1799 – Telephone

rwechkin@sidley.com

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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 21 of 22

415.772.7400 – Facsimile

ATTORNEYS FOR CITY OF AUSTIN INTERVENORS:

Christopher J. Coppola Michael J. Siegel CITY OF AUSTIN P.O. Box 1546 Austin, Texas 78767 512.974.2161 – Telephone 512.974.1311 – Facsimile

christopher.coppola@austintexas.gov michael.siegel@austintexas.gov

ATTORNEYS FOR TRAVIS COUNTY INTERVENORS:

Anthony J. Nelson

tony.nelson@traviscountytx.gov

Laurie R. Eiserloh

laurie.eiserloh@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

314 West 11th Street, Room 590

Austin, Texas 78701

512.854.4801 – Telephone

512.854.4808 – Facsimile

Sharon Talley

sharon.talley@traviscountytx.gov

Sherine E. Thomas

sherine.thomas@traviscountytx.gov

Tim Labadie

tim.labadie@traviscountytx.gov

TRAVIS COUNTY ATTORNEY

P.O. Box 1748

Austin, Texas 78767

512.854.9513 – Telephone

512.854.4808 – Facsimile

ATTORNEYS FOR CITY OF DALLAS INTERVENORS:

Charles S. Estee

charles.estee@dallascityhall.com

DALLAS CITY ATTORNEY OFFICE

1500 Marilla, 7DN

Dallas, Texas 75201

214.670.3499 – Telephone

214.670.0622 – Facsimile

ATTORNEYS FOR TEXAS ASSOCIAITON OF HISPANIC COUNTY JUDGES & COUNTY COMMISSIONERS INTERVENORS:

Rolando L. Rios

rrios@rolandorioslaw.com

Law Offices of Rolando L. Rios

115 E. Travis Street, Suite 1645

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Case 5:17-cv-00404-OLG Document 175 Filed 07/28/17 Page 22 of 22

San Antonio, Texas 78205 210.222.2102 – Telephone 210.222.2898 – Facsimile

ATTORNEYS FOR DEFENDANTS:

Adam Arthur Biggs

adam.biggs@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

300 W. 15th Street

Austin, Texas 78701

512.463.2120 – Telephone

512.320.0667 – Facsimile

Brantley Starr

brantley.starr@oag.texas.gov

Deputy First Assistant Attorney General

William T. Deane

bill.deane@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548, Capital Station

Austin, Texas 78711

512.936.8160 – Telephone

512.936.0545 – Facsimile

Joel Stonedale

joel.stonedale@oag.texas.gov

Andrew D. Leonie, III

leonie@texasattorneygeneral.gov

David J. Hacker

david.hacker@oag.texas.gov

David A. Nimocks

austin.nimocks@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

209 W. 14th St., 8th Floor

Austin, Texas 78701

512.475.3281 – Telephone

Darren L. McCarty

darren.mccarty@oag.texas.gov

OFFICE OF TEXAS ATTORNEY GENERAL

Executive Administration

240 W. 14th Street, 7th Floor

Austin, Texas 78701

512.936.0594 – Telephone

512.936.0545 – Facsimile

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 Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERNDISTRICTOFTEXAS SAN ANTONIODIVISION

CITY OF EL CENIZO, TEXAS, ET AL., Plaintiffs
v.
STATE OF TEXAS, ET AL., Defendants

§ § § § Case No. 5:17-cv-404-OG § § §

BRIEF OF AMICI CURIAE THE EPISCOPAL DIOCESE OF TEXAS, THE EPISCOPAL DIOCESE OF THE RIO GRANDE, THE REV. DR. ERIK K.J. GRONBERG, THE REV. DR.
JOEL N. MARTINEZ, THE REV. DR. RAY TIEMANN, THE REV. DR. SCOTT JONES, TEXAS IMPACT, THE REV. CHUCK FREEMAN, THE REV. SALLIE SAMPSELL WATSON, AND THE REV. ANDY SHELTON
IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION
AND PERMANENT INJUNCTION

James C. Harrington Texas Bar No. 09048500 PO Box 4032 Austin, TX 78765 (512) 771-1759 (phone) jch@utexas.edu (email)
ATTORNEY FOR AMICI CURIAE

Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 2 of 19
TABLE OF CONTENTS
INTRODUCTION……………….. ................................................................................................ 1 STATEMENT OF INTEREST OF THE EPISCOPAL DIOCESE OF TEXAS............................ 1 STATEMENT OF INTEREST OF THE OTHER AMICI CURIAE ............................................. 6 ARGUMENT AND AUTHORITIES
I. SB-4 WOULD ADVERSELY AFFECT IMMIGRANT FAMILIES, BREAKING UP SOME OF THEM .…………………………………….......................9
II. SB-4 WOULD SUBSTANTIALLY DISRUPT THE RELIGIOUS LIVES OF PEOPLE IN THE IMMIGRANT COMMUNITY………….........................................10Error! Bookmark not defined.
III. SB-4 WOULD ALLOW AND CONDONE ILLEGAL RACIAL AND ETHNIC PROFILING….………………………………………………………………………...11
IV. SB-4 WOULD ADVERSELY AFFECT PUBLIC SAFETY IN THE COMMUNITY AT LARGE AND ESPECIALLY IN THE IMMIGRANT COMMUNITY.………………………………………………….…………………….12
CONCLUSION AND PRAYER FOR RELIEF........................................................................... 14 CERTIFICATE OF SERVICE …..………………………………………………………………15 ATTACHMENT A
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TABLE OF AUTHORITIES
Alan K. Chen, “Qualified Immunity Liming Access to Justice and Impeding Development of the Law, 41 HUMAN RIGHTS 1 (2015), American Bar Ass’n, https://www.americanbar.org/publications/human_rights_magazine_home/2015-vol--41-/vol--41--no--1---lurking-in-the-shadows--the-supreme-court-s-qui/qualifiedimmunity-limiting- access-to-justice-and-impeding-devel.html …..................................12
Chart: “Moving Violations [37 TAC § 15.89(b)],” Texas Municipal Courts Education (2017), http://www.tmcec.com/resources/charts/ (http://texreg.sos.state.tx.us/fids/2014039101.html)..…............................................................................................................................9
David A. Harris, “U.S. Experiences with racial and ethnic profiling: history, current issues, and the future,” 14 CRITICAL CRIMINOLOGY 213-39 (Sept. 2006) …........................................9
Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-anamerican-butwhat-if-you-had-to-prove-it-or-be-deported#foot1 ..................................... 11
“Fact Sheet: Immigrants in Houston,” Center for Public Policy Priorities (2016), http://forabettertexas.org/images/EO_2016_Factsheet_Immigrants_HOU.pdf ................. 2
“Five Facts About Migration form Central America’s Northern Triangle,” Washington Office on Latin America (January 15, 2016), https://www.wola.org/.../five-factsabout-migration-from-central-americas-northern-triangle/ .…...........................................4
Gabriel Lesser and Jeanne Batalova, “Central American Immigrants in the United States,” Migration Policy Institute (April 5, 2017), http://www.migrationpolicy.org/article/ central-american-immigrants-united-states …….................................................................2
“Houston ISD: Did You Know?,” Houston Family Magazine (Dec. 30, 2014), https://www.houstonfamilymagazine.com/features/houston-isd-did-you-know/ …...........2
John C. Jeffries, “What’s Wrong with Qualified Immunity,” 62 FLA.L.REV. 851 (2010) .…........9
Karen S. Glover, Racial Profiling: Research, Racism, and Resistance (Issues in Crime and Justice), Rowman & Littlefield Publishers (2009) ...........................................................11
Kirk Semple, “Fleeing Gangs, Central American Families Surge Toward U.S.,” New York Times (Nov. 13, 2016), https://www.nytimes.com/2016/11/13/world/americas/fleeinggangs-central-american-families-surge-toward-us.html?_r=0 ............................................4
Liz Robbins, “For the Undocumented, a Broken Headlight Can Lead to Deportation,” New York Times (July 18, 2017), https://www.nytimes.com/2017/07/18/nyregion/driving-illegal-immigrationtrump-administration.html?_r=0. ..........................................................................................10
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Marissa Evans, “Report says Child Protective Service workers are overloaded, urges overhaul,” Texas Tribune (Nov. 4, 2016), https://www.texastribune.org/2016/11/04/specialmasters-recommend-dfps-overhaul/ …...............................................................................9
Maya Rhodan, “Going after the ‘really bad dudes,’” Time (July 10 – July 17, 2017), http://time.com/4838708/going-after-the-really-bad-dudes/ (June 29, 2017)………...…13
Randy Capps, Michael Fix, and Chiamaka Nwosu, “A Profile of Immigrants in Houston, the Nation's Most Diverse Metropolitan Area,” Migration Policy Institute (March 2015), http://www.-migrationpolicy.org/-research/profile-immigrants-houston-nations-mostdiverse-metropolitan-area …...............................................................................................2
Quick Facts, U.S. Census Bureau (July 1, 2016), https://www.census.gov/quickfacts/fact/table/harriscountytexas/PST120216 ...................2
Quick Facts, U.S. Census Bureau (July 1, 2016), https://www.census.gov/quickfacts/fact/table/traviscountytexas/PST120216 ...................2
“US government deporting Central American migrants to their deaths,” The Guardian (Oct. 12, 2015), https://www.theguardian.com/us-news/2015/oct/12/obamaimmigration-deportations-central-america .…....................................................................5
“Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations High Commissioner for Refugees (October 2015), http://www.unhcr.org/5630f24c6.html .…................................................5
“’You Don’t Have Rights Here’: US Border Screening and Returns of Central Americans to Risk of Serious Harm,” Human Rights Watch (Oct. 16, 2014), https://www.hrw.org/report/2014/10/16/you-dont-have-rights-here/us-borderscreening-and-returns-central-americans-risk ….................................................................6
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INTRODUCTION The Episcopal Diocese Of Texas, The Episcopal Diocese Of The Rio Grande, The Rev. Dr. Erik K.J. Gronberg, The Rev. Dr. Joel N. Martinez, The Rev. Dr. Ray Tiemann, The Rev. Dr. Scott Jones, Texas Impact, The Rev. Chuck Freeman, The Rev. Sallie Sampsell Watson, and The Rev. Andy Shelton respectfully file this brief as Amici Curiae in support of the Plaintiffs’ motions for preliminary and permanent injunctive relief. If allowed to come into effect, SB-4 would cause immediate, irreparable injury to the immigrant communities and the larger Hispanic community, which the Amici serve and represent, and immediate, irreparable injury to the Churches’ work with those communities. STATEMENT OF INTEREST OF THE EPISCOPAL DIOCESE OF TEXAS The Episcopal Diocese of Texas opposed enactment of SB-4. Bishop C. Andrew Doyle of the Diocese joined 200 other religious leaders in opposing SB-4 before it was enacted. Bishop Doyle has continued to oppose SB-4 now that it has become law. See Attachment A. The Diocese expresses its vision in these words: “As followers of Jesus Christ, we are One Church within the Anglican Communion and The Episcopal Church. All are sought and embraced in worship, mission and ministry in a spirit of mutual love and respect.” The core values of the Diocese include a missionary emphasis, education and leadership, meeting human needs, and responsive stewardship. The Diocese of Texas consists of all Episcopal congregations in the southeastern quartile of Texas, encompassing 49,489 square miles. It includes 57 Texas counties and the cities of Austin, Beaumont, Galveston, Houston, and Waco. The church has 79,509 members and 154 congregations.1
1 The Diocese notes that Plaintiffs City of Houston, Travis County (and its sheriff), and Intervenor Plaintiff City of Austin are within the bounds of the Diocese.
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There are very substantial immigrant and Hispanic populations within the Diocese.
Because of immigration, the Houston metropolitan area, where more than 100 languages are
spoken in the schools, has eclipsed New York and Los Angeles as the most racially and ethnically diverse region in the United States.2 There are about 6.8 million residents in the area.
Harris County is one of the major destinations of migrants from Honduras, Guatemala, and El Salvador.3 Approximately 20% of the residents in the greater metropolitan Houston
region, served by the Diocese, are immigrants, principally from Mexico, Vietnam, El Salvador,
Guatemala, and Honduras. About one-third of those immigrants (mostly from Mexico, El Salvador, Guatemala, and Honduras) are unauthorized.4 Of the region, approximately 42 percent of the population overall is of Hispanic or Latino origin.5 Similar patterns exist in Travis County, where about 34 percent of the population is Hispanic or Latino.6
The Diocese has a long history of serving the immigrant and non-immigrant Hispanic
community, including undocumented immigrants. The Diocese has a Commission on Hispanic
Ministry, comprised of clergy and lay persons who are ministry leaders in predominately
Hispanic congregations within the Diocese. The Commission also provides leadership and
assistance to other parishes with Hispanic congregants and organizes an annual conference on
2 “Fact Sheet: Immigrants in Houston,” Center for Public Policy Priorities (2016), http://forabettertexas.org/images/EO_2016_Factsheet_Immigrants_HOU.pdf; “Houston ISD: Did You Know?,” Houston Family Magazine (Dec. 30, 2014), https://www.houstonfamilymagazine.com/features/houston-isd-did-you-know/. 3 Gabriel Lesser and Jeanne Batalova, “Central American Immigrants in the United States,” Migration Policy Institute (April 5, 2017), http://www.migrationpolicy.org/article/central-american-immigrantsunited-states. 4 Randy Capps, Michael Fix, and Chiamaka Nwosu, “A Profile of Immigrants in Houston, the Nation's Most Diverse Metropolitan Area,” Migration Policy Institute (March 2015), http://www.migrationpolicy.org/-research/profile-immigrants-houston-nations-most-diverse-metropolitan-area. 5 Quick Facts, U.S. Census Bureau (July 1, 2016), https://www.census.gov/quickfacts/fact/table/harriscountytexas/PST120216. 6 Quick Facts, U.S. Census Bureau (July 1, 2016),https://www.census.gov/quickfacts/fact/table/traviscountytexas/PST120216.
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Hispanic lay ministry. A significant number of undocumented immigrants are members of parishes or recipients of diocesan ministry and services; some are actively involved in parish leadership positions.
Various parishes of the Diocese have worked with local law enforcement authorities with regard to their relationships with the immigrant community; and diocesan parishioners and clergy have traveled to Sacred Heart Catholic Church in McAllen to work with Sister Norma Pimental to assist immigrants arriving there from Honduras, Guatemala, and El Salvador, fleeing horrific violence or unable to provide for their families in their homelands. The Diocese assisted many of those immigrants to settle in the Harris County region and in Travis County.
In addition, a number of parishes within the Diocese have presented legal forums for undocumented migrants over the last year. The forums advise them of their rights and prepare Powers of Attorneys for their children so that, for example, if children come home from school and their parents have been arrested for deportation, the children will have a properly designated guardian to take care of them. Many of those children, of course, were born in the United States and are citizens.
The Diocese of Texas also participates in Episcopal Migration Ministries (EMM), the refugee resettlement and immigrant advocacy program of the Episcopal Church. EMM carries out the ministry it began over 60 years ago to relieve the burden of the world's suffering through refugee resettlement and assistance to migrants. It is one of ten U.S. resettlement agencies working in a public-private partnership with the U.S. government.
EMM resettles 2,500-3,500 refugees each year through its network of 33 affiliate offices in 27 dioceses of the Episcopal Church. At the heart of the ministry are Episcopal parishes and other faith communities serving refugees in a variety of ways, including contributions, advocacy, volunteering and co-sponsorship.
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EMM partners with affiliates, along with dioceses, faith communities, and volunteers across the United States to welcome refugees from conflict zones across the globe. In the Episcopal Diocese of Texas, EMM partners with affiliates, Interfaith Ministries for Greater Houston and Refugee Services of Texas-Austin, and the Diocese itself in resettling refugees within the Diocese.
Although economic necessity often drove earlier migration from Mexico and Central America (much like the European migration through Ellis Island), in recent years, significant numbers of migrants from Honduras, Guatemala, and El Salvador have fled to the United States because of high levels of terrible violence that plague their countries. This region, known as Central America’s Northern Triangle is among the most violent in the world. The murder rate in El Salvador, for example, is twenty times that of the United States.7
Not only is violence pervasive in those countries’ marginalized communities, extortion is widespread. Salvadorans pay an estimated $400 million a year in extortion fees, while Hondurans pay around $200 million and Guatemalans an estimated $61 million. According to a Guatemalan human rights organization, between January and July 2014, at least 700 people were killed for failing to pay extortion fees.8
People are fleeing community-level violence that often is personal and direct. They face real and specific threats from street gangs, extortionists, drug traffickers, and from domestic abuse, and may become potential targets if the United States returns them to their countries. Women and children, in particular, in these countries are victims of extortion, abuse,
7 “Five Facts About Migration form Central America’s Northern Triangle,” Washington Office on Latin America (January 15, 2016), https://www.wola.org/.../five-facts-about-migration-from-central-americasnorthern-triangle/. See also Kirk Semple, “Fleeing Gangs, Central American Families Surge Toward U.S.,” New York Times (Nov. 13, 2016), https://www.nytimes.com/2016/11/13/world/americas/fleeinggangs-central-american-families-surge-toward-us.html?_r=0. 8 Id.
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rape, murder, and gang-related violence. In many communities, people face explicit threats against their lives for reasons that may include bearing witness to a crime, attempting to leave a gang, or failing to pay an extortion fee.9
A 2015 report by the United Nations High Commissioner for Refugees (UNHCR) found that women in particular face a “startling” degree of violence in the Northern Triangle and Mexico, including rape, assault, extortion, and threats by armed criminal groups. Sixty-four percent of women interviewed for the study cited targeted threats or attacks as one of their primary motivations for fleeing their communities.10
Although there are no official records of how many migrants deported from the United States have been killed upon return to their home countries, one study has estimated that more than 80 returnees have been murdered in El Salvador, Guatemala, and Honduras between January 2014 and October 2015.11
Although many migrants would have valid claims of asylum, allowing them legal status in the United States, they are left to navigate asylum proceedings by themselves. American law does not provide for appointed attorneys at such hearings, if the asylum-seeker is too poor to hire an attorney, as indeed they all are. There are some non-profit pro bono organizations, but they can serve only a very small fraction of potential asylum-seekers.
Asylum-seekers have to prepare their cases by themselves for their immigration hearings, a virtually impossible task for them to do on their own, given their lack of English fluency, level
9 Id. 10 “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations High Commissioner for Refugees (October 2015), http://www.unhcr.org/5630f24c6.html. 11 “US government deporting Central American migrants to their deaths,” The Guardian (Oct. 12, 2015), https://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america.
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of literacy, unfamiliarity with U.S. legal processes, and inherent distrust of legal procedures (given their experience with corrupt institutions in their countries of origin).
There are also cultural issues. Women, for example, in a strange and fearful situation, are not forthcoming about sexual violence they have experienced, even though being forthcoming in these painful matters would benefit their asylum claim. An attorney would be able to work with them on this issue, if they had one.
The lack of proper and meaningful assistance at an immigration hearing means losing the asylum claim and deportation back to where they came from, facing again the prospect of imminent violence, if not death.12
These are people to whom the clergy and people of the Diocese minister, according to their moral and religious dictates; and it is these people, and the larger community, whom the Diocese seeks to protect from the arbitrary and capricious SB-4. SB-4 is an unjust law.
STATEMENT OF INTEREST OF THE OTHER AMICI CURIAE The Episcopal Diocese of the Rio Grande encompasses 154,000 square miles of far west Texas, from the Pecos River to the border with Mexico along the Rio Grande, and all the State of New Mexico. In Texas, the diocese includes El Paso, Fort Stockton, Marfa, Alpine, and Terlingua. The Rt. Rev. Michael Vono serves as Bishop of the Diocese of the Rio Grande and its 63 congregations, and spiritual leader for the 15,000 members of the diocese. The Rev. Dr. Erik K.J. Gronberg is Bishop for Northern Texas-Northern Louisiana Synod of the Evangelical Lutheran Church in America. The Synod’s geographical area includes northern Texas, generally north of a line from Marshall to Midland/Odessa to the New Mexico border. There are more than 25,000 members in the 106 congregations in the synod.
12 “’You Don’t Have Rights Here’: US Border Screening and Returns of Central Americans to Risk of Serious Harm,” Human Rights Watch (Oct. 16, 2014), https://www.hrw.org/report/2014/10/16/you-donthave-rights-here/us-border-screening-and-returns-central-americans-risk.
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The Rev. Dr. Joel N. Martinez, Bishop (retired), Rio Texas Conference of the United Methodist Church. The Conference spans South Texas, from Austin to the border, and extends west to San Angelo and east to Victoria.
The Rev. Dr. Ray Tiemann is Bishop of the Southwestern Texas Synod, a region of the Evangelical Lutheran Church in America, which supports 135 south Texas congregations and worshiping communities, from Austin to the Rio Grande Valley.
The Rev. Dr. Scott Jones is Bishop of the Texas Annual Conference of the United Methodist Church, which is one of the eleven annual (regional) conferences in the South Central Jurisdiction of the United Methodist Church. It is comprised of 700 congregations across East Texas, including in and around Houston, Galveston, Beaumont, Texarkana, Longview, Tyler, College Station – and everywhere in between.
Texas Impact is a statewide religious grassroots network whose members include individuals, congregations, and governing bodies of the Christian, Jewish, and Muslim faiths. Texas Impact exists to advance state public policies that are consistent with universally held social principles of the Abrahamic traditions. Bee Moorhead is its Executive Director.
The Rev. Chuck Freeman is Executive Director, Texas Unitarian Universalist Justice Ministry, a statewide justice ministry that raises the voice of Unitarian Universalist values in the public arena and seeks to have those values enacted into legislation and promulgated in public policy.
The Rev. Sallie Sampsell Watson is General Presbyter of the Mission Presbytery, which consists of 138 Presbyterian churches and fellowships in South Central Texas. Geographically, it stretches from the Rio Grande Valley to Del Rio, into the Hill Country, including Austin, San Antonio, Victoria, and Corpus Christi. The Presbytery includes over 300 Teaching Elders and approximately 23,425 lay members.
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The Rev. Andy Shelton is Director of Chapel for the Christian Church (Disciples of Christ) at Brite Divinity School in Fort Worth.
The combined geographical ministry area of these Amici covers the entire State of Texas. Rather than each describing in detail the factual implications of SB-4 for their regions, they adopt those set out above by the Episcopal Diocese of Texas as typical and representative of their respective jurisdictions and regions. They also note that their ministry area encompasses regions and jurisdictions served by the Plaintiffs and other supporting parties in this case.
ARGUMENT AND AUTHORITIES The Amici do not submit new legal authority to the Court since the Plaintiffs and other supporting amici have more than adequately briefed the law as to why SB-4 is unconstitutional. Because these Amici believe that Plaintiffs are likely to prevail on the merits and the harm to Plaintiffs and the Hispanic and immigrant communities of denying the injunction would be grave and irreparable, they join in urging the Court to preliminarily enjoin SB-4 so that the Court can deliberately assess the law’s legality without unsettling the status quo and thereafter grant a permanent injunction against enforcement of SB-4. One of the most pernicious aspects of SB-4 is that it protects an officer, who, for whatever motivation or misguided belief, decides to pursue interrogation of a detainee’s immigration status and then turn that person over to Immigration and Customs Enforcement (ICE). This could be for something as minor as a broken taillight or expired inspection sticker. SB-4 similarly protects rogue officers, who may be motivated by racial, ethnic, or anti-immigrant bias, and makes a pretext traffic stop.
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There are more than 200 moving violations under Texas law,13 which presents an officer with a wide variety of possibilities for stopping a driver. Even then, the officer only needs probable cause to stop someone, a discretionary call on the officer’s part. The officer might be mistaken ultimately (or claim mistake), but could still stop someone with impunity and, under SB-4 (“show me your papers”), ask for proof of legal status in the country.
I. SB-4 WOULD ADVERSELY AFFECT IMMIGRANT FAMILIES, BREAKING UP SOME OF THEM The Amici believe that protecting family integrity has moral, religious, and social
parameters, which SB-4 undermines and militates against. SB-4 creates the real possibility that parents will be arrested and deported, leaving their
children behind to be cared for by the state’s Child Protective Services, an agency underfunded, under fire, and subject to a scathing federal court ruling of not properly caring for children in its custody.14 This would be a serious detriment and grave consequence for the children.
To make matters even more unjust, the children themselves may be United States citizens, having been born here, and, upon reaching majority age, could petition for legal status for the parents. SB-4 does not respect this equity, and allows a single officer, acting on his or her own discretion (even out of a biased animus), to cause this kind of havoc in a family’s life.
Nor does SB-4 respect other equities, such as length of time in the community, contributions to children’s school, work history, good criminal justice record, or religious practices. SB-4 summarily overrides them all. The law is not just.
13 Chart: “Moving Violations [37 TAC § 15.89(b)],” Texas Municipal Courts Education (2017), http://www.tmcec.com/resources/charts/ (http://texreg.sos.state.tx.us/fids/201403910-1.html). 14 Marissa Evans, “Report says Child Protective Service workers are overloaded, urges overhaul,” Texas Tribune (Nov. 4, 2016), https://www.texastribune.org/2016/11/04/special-masters-recommend-dfpsoverhaul/.
9

Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 14 of 19
II. SB-4 WOULD SUBSTANTIALLY DISRUPT THE RELIGIOUS LIVES OF PEOPLE IN THE IMMIGRANT COMMUNITY Since the time the governor signed SB-4, parishes in the Diocese of Texas have begun to
report a diminished number of migrant persons attending church services. The number of persons who attend services will surely decrease significantly, if SB-4 goes into effect. They will fear apprehension going to/from church for something as minor as a traffic violation.15 This not only will affect attendance at regular church services, but also attendance at special religious events, such as baptisms, quinceañeras, weddings, and funerals.
Migrant parishioners report their fear that police, under SB-4, will stage officers near churches to detain and question them. ICE agents have done this in the past, from time to time.16 And some people have declined to attend the parish “know your rights” legal forums, mentioned above, out of fear that ICE will detain them.
Not only will SB-4 adversely affect and irreparably harm the religious lives of migrants by intimidating them from attending church services, events, and activities; but it will also adversely affect other members of parish congregations who depend on the religious leadership of these migrants.
Freedom to practice one’s religion is a fundamental human right, and people should be able to practice their religion without fear that they may be apprehended at their place of worship or while on the way to their place of worship or from their place of worship. SB-4 certainly opens the probability of this happening.
15 See Liz Robbins, “For the Undocumented, a Broken Headlight Can Lead to Deportation,” New York Times (July 18, 2017), https://www.nytimes.com/2017/07/18/nyregion/driving-illegal-immigrationtrump-administration.html?_r=0 (two people with their five children stopped for speeding on the way to church). 16 A similar phenomenon is occurring with regard to local schools throughout Texas; parents sometimes keep their children home out of fear of being stopped by ICE when they accompany their children to school.
10

Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 15 of 19
III. SB-4 WOULD ALLOW AND CONDONE ILLEGAL RACIAL AND ETHNIC PROFILING Unlawful, pervasive profiling has long been a problem in law enforcement agencies,
especially in the context of ill-trained officers or those who have a bias regarding race, ethnicity, or immigrant status.17
SB-4 would shield officers who operate according to those biases, regardless of acceptable police practices, and subject people at large to questioning about their status in the United States and then detention, if the officer sees fit. SB-4 protects the officers discretion, even if founded on illegal bias or profiling.
Given the wide variety of immigrants throughout the state from so many different continents, virtually the general population is subject to a “show me your papers” demand by any officer who detains them, although, typically, unlawful profiling affects Hispanic and African American communities to a much greater extent.
Moreover, if someone does not have the proof the officer deems sufficient, the officer could detain the individual, even if that person is a citizen (even though it is actually unlawful to detain a citizen in that context). This is not a far-fetched possibility; indeed, it already happens all too often.18 SB-4 will exacerbate the probability of this happening all the more.
Case law compounds the situation even further, and makes it more precarious, because it shields the officer with qualified immunity. An officer may violate someone’s constitutional rights but not be liable to suit for doing so, if he/she acted in “good faith,” which the courts have
17 Karen S. Glover, Racial Profiling: Research, Racism, and Resistance (Issues in Crime and Justice), Rowman & Littlefield Publishers (2009); David A. Harris, “U.S. Experiences with racial and ethnic profiling: history, current issues, and the future,” 14 CRITICAL CRIMINOLOGY 213-39 (Sept. 2006). 18 See Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be Deported?, National Public Radio (Dec. 22, 2016), 12:29 PM), http://www.npr.org/sections/thetwoway/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-to-prove-it-or-bedeported#foot1.
11

Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 16 of 19
interpreted very broadly as not acting unreasonably under the circumstances.19 SB-4 gives the officer, even a rogue officer with bias, both a pretext to profile and a shield from a federal civil rights lawsuit, even if the profiling was unconstitutional. To use Lord Acton’s maxim, power corrupts; and absolute power corrupts absolutely.
SB-4 leaves an aggrieved citizen in the ironic situation of having a right without a remedy. In that situation, abuse by police officers goes unfettered. Racial and ethnic profiling has been a bane on American society; and SB-4 will sanction it to an even greater extent.
IV. SB-4 WOULD ADVERSELY AFFECT PUBLIC SAFETY IN THE COMMUNITY AT LARGE AND ESPECIALLY IN THE IMMIGRANT COMMUNITY In addition to the legal authorities and arguments that Plaintiffs and related parties have
put before the Court on this point, the Amici would specifically adopt the arguments urged in the brief of Amicus Curiae Anti-Defamation League (ADL), particularly those focusing on the relationship of law enforcement entities with the immigrant and Hispanic communities and SB4’s severe adverse impact on that relationship, to the grave detriment of those communities’ safety and well-being.
SB-4 would immediately and irreparably undermine cooperation and trust between law enforcement officials and immigrant and minority communities, which is critical to public safety and community policing.
Because SB-4 essentially commandeers Plaintiffs local law enforcement agencies to act as immigration officers, it would destroy relationships of trust that those agencies, in
19 Alan K. Chen, “Qualified Immunity Liming Access to Justice and Impeding Development of the Law, 41 HUMAN RIGHTS 1 (2015), American Bar Ass’n, https://www.americanbar.org/publications/human_rights_magazine_home/2015--vol--41-/vol--41--no--1--lurking-in-the-shadows--the-supreme-court-s-qui/qualified-immunity-limiting-access-to-justice-andimpeding-devel.html; John C. Jeffries, “What’s Wrong with Qualified Immunity,” 62 FLA.L.REV. 851 (2010).
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Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 17 of 19
collaboration with civil rights organizations, religious institutions, and community groups, have spent years to painstakingly develop.
No injunction or other remedy at law or equity will ever repair or rebuild that trust once it is broken, to the detriment of public safety. A relationship of trust is the linchpin of the cooperation necessary for people to report crimes and provide information essential to solving crime and protecting the public.
Under SB-4, undocumented immigrants, citizens, and immigrants with lawful status will live with a well-founded fear that police will report their immigration information—or that of a family member or friend—to ICE, resulting in potential detention and deportation. This fear is already operative and is undermining the reporting of rape and violent crimes.20
In the experience of the law enforcement agencies that have either spoken out or joined this case, making local police officers de facto immigration agents would make it impossible for Texans from mixed-status families or communities with significant numbers of migrants to interact with police in an atmosphere of trust and without fear that they themselves, their families, friends, work colleagues, or neighbors, will be deported. They will be motivated not to report crimes or serve as witnesses. They will fear they themselves being mistaken as undocumented, or will fear drawing police attention to their friends, fellow workers, and neighbors. Public safety will suffer as a consequence.
This unfortunately will be especially true of domestic violence situations; spouses and children will become silent victims of awful violence and drawn into a quiet vortex of abuse.
20 Subsequent to the filing of the ADL amicus curiae brief, which discusses this issue in depth, as do other pleadings and briefs, Time magazine published a piece concerning the adverse impact of ratchetedup immigration enforcement on crime reporting in Hispanic communities across the country (including a reference to the statistics provided by Houston Police Chief Art Acevedo and cited by ADL and others). See Maya Rhodan, “Going after the ‘really bad dudes,’” Time (July 10 – July 17, 2017), p.12; http://time.com/4838708/going-after-the-really-bad-dudes/ (June 29, 2017).
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This not a hypothetical conjecture, but a concrete reality, as Plaintiffs and Amicus ADL have pointed out with research studies. Undocumented migrants are significantly less likely to report crimes committed against them.
SB-4 drives a wedge of fear between police officers and the people whom they protect. As a result, crime will increase, not decrease.
CONCLUSION AND PRAYER FOR RELIEF For these reasons and for those set out in the pleadings and briefs of Plaintiffs and supporting parties, SB-4 will inflict irreparable harm on the communities these Amici serve and represent, if this Court does not enjoin its implementation. The Constitution and laws of the United States, as well as justice and the public interest, require the granting of a preliminary injunction and, thereafter, a permanent injunction against enforcement of SB-4. These Amici Curiae ask that the Court do so. Dated: July 30, 2017
Respectfully submitted, /s/ James C. Harrington James C. Harrington Texas Bar No. 09048500 PO Box 4032 Austin, TX 78765 (512) 771-1759 (phone) jch@utexas.edu (email) ATTORNEY FOR AMICI CURIAE
14

Case 5:17-cv-00404-OLG Document 176 Filed 07/30/17 Page 19 of 19 CERTIFICATE OF SERVICE
I certify that on July 30, 2017, I served all counsel of record with a copy of this document via the Court’s CM/ECF system.
/s/ James C. Harrington James C. Harrington
15

Case 5:17-cv-00404-OLG Document 176-1 Filed 07/30/17 Page 1 of 3 ATTACHMENT A

Case 5:17-cv-00404-OLG Document 176-1 Filed 07/30/17 Page 2 of 3
The Episcopal Diocese of Texas Office of the Bishop
June 16, 2017
Dear Sisters and Brothers in Christ:
As you know all too well, there has been much controversy and fear in the community generated by the “anti sanctuary” law (Senate Bill 4) that will take effect September 1, 2017.
As your bishop, I signed a letter to Gov. Greg Abbott on May 17, 2017, along with 200 other Texas religious leaders, condemning the law as “anti-immigrant” and contrary to the biblical principles for which we stand as Christians. The law is contrary to the moral imperative that we love our neighbor, welcome the immigrant, and care for the most vulnerable among us. This law represents an anti-immigrant agenda that is born out of fear and promoted out of a sense of privilege, jeopardizing justice for everyone.
SB-4 is the harshest anti-immigrant bill passed by a state legislature in recent years. The law will force state, local, and campus police to serve as immigration enforcement officers and mandate that they hold immigrants in custody for Immigration Customs Enforcement (ICE), no matter the equities of the situation. This law takes away the right of local police to set their own public safety priorities and commitments to protect immigrants who are victims or witnesses of crime.
The law will institutionalize racial profiling; and it will encourage discrimination against people of color, separate families, send a message that immigrants are unwelcome, and bring fear to children, families, and entire communities. Texas is the first state to mandate compliance with ICE detainer requests and conscript local police to enforce immigration laws.
I assure you that, despite SB-4, our church will continue to build welcoming communities across Texas. Texans are a hospitable, kind, and welcoming people. We lament this law’s attempt to spread fear among us. We will continue to stand with our prophetic voice against SB-4. As our sacred texts remind us, “When a stranger resides with you in your land, you shall not do wrong to that person. The stranger who resides with you shall be to you as the native among you, and you shall love the stranger as yourself.” Leviticus 19:33-34.
We will continue to explore ways to resist this law as a Christian community. A large number of cities and counties in the state have filed suit, asking the federal court to enjoin and prohibit the enforcement of SB-4. We don’t know how the litigation will come out; but our diocese will file an amicus curia brief in the case, advising the judge of our opposition to this law; and I will invite other bishops in Texas to join me.
I have asked the diocesan Commission on Hispanic Ministry to prepare a long-term proactive plan to address this issue and will keep you advised of the progress of that plan.
Let us continue to pray for the immigrants in our community and discern together how the Gospel of Jesus calls to respond.
Faithfully,
C. Andrew Doyle, D.D. IX Bishop of Texas
CAD set 1225 Texas Ave. • Houston, TX 77002-3504 • Tel: 713.520.6444 • 800.318.4452 • Fax: 713.353.2101 . www.epicenter.org

Case 5:17-cv-00404-OLG Document 176-1 Filed 07/30/17 Page 3 of 3
The Episcopal Diocese of Texas Office of the Bishop
16 de Junio de 2017
Hermanas y Hermanos en Cristo:
Como ustedes saben muy bien, ha habido mucha controversia y temor generado por Ia ley ~anti-santuario” (Senate Bill que entrará en vigor el l°de septiembre de 2017.
Como su obispo, firmé una carta al gobernador Greg Abbott el 17 de mayo, junto con otros 200 lideres religiosos de Texas, condenando esta ley como “anti-inmigrante” y en contra de los principios biblicos cristianos. La ley viola el imperativo moral de que amemos a nuestro prójimo, demos Ia bienvenida al inmigrante, y nos preocupemos por los más vulnerables entre nosotros. Esta ley representa una agenda anti-inmigrante que nace del temor y se promueve a partir de un sentimiento de privilegio, poniendo en peligro lajusticia para todos.
Esta ley anti-inmigrante es la más severa aprobada en los ültimos años por una legislatura estatal. Obligara a Ia policIa estatal, local, y de Ia universidad a servir como agentes de cumplimiento de Ia ley de inmigración y el mandato de detener y retener a los inmigrantes bajo custodia para Ia Agencia Federal de Inmigracion (ICE) sin importar la justicia de la situación. Esta ley elimina el derecho de los policias locales a establecer sus propias prioridades de seguridad püblica y compromisos para proteger a los inmigrantes que son victimas o testigos de delitos.
La ley institucionalizará el perfil racial. Fomentará la discriminaciOn contra las personas de color, separará familias, enviará un mensaje de que los inmigrantes no son bienvenidos, y traerá miedo a comunidades enteras. Texas es el primer estado en mandar cumplir con las demandas de retenciOn de ICE y reclutar a Ia policia local para hacer cumplir las leyes de inmigración.
A pesar de Ia SB-4, les aseguro que seguiremos construyendo comunidades acogedoras en Texas. Los tejanos son un pueblo hospitalario y amable. Lamentamos el intento de esta ley de difundir el miedo entre nosotros. Seguiremos siendo firmes con nuestra voz profética contra Ia SB-4. Como nos recuerdan nuestros textos sagrados: “No hagan sufrir al extranjero que viva entre ustedes. Trãtenlo como a uno de ustedes; ámenlo, pues es como ustedes,” (LevItico 19: 3334).
Continuaremos explorando maneras de resistir esta ley como una comunidad cristiana. Un gran nCimero de ciudades y condados del estado han presentado una demanda, pidiendo a Ia corte federal que prohIba Ia ejecución de Ia SB-4. No sabemos cómo saldrá el Iitigio; pero nuestra diócesis presentará un amicus curiae en el caso, aconsejando al juez de nuestra oposición a esta ley. Yo invitaré a otros obispos en Texas que se unan a ml.
He pedido a Ia Comisión del Ministerio Hispano que prepare un plan proactivo de largo plazo para abordar esta cuestión. Les mantendremos informados del progreso de ese plan. Continuemos orando por los inmigrantes en nuestra comunidad y discerniendo juntos cómo el Evangelio de Jesus nos llama a responder.
Fielmente,
~- ~2. 4~r ~
El Rvdmo. C. Andrew Doyle IX Obispo de Texas
1225 Texas Ave. • Houston, TX 77002-3504 • Tel: 713.520.6444 • 800.318.4452 • Fax: 713.353.2101 ‘www.epicenter.org

 
 Case 5:17-cv-00404-OLG Document 177 Filed 08/02/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,

No. 5:17-cv-404-OG [Lead Case]

v.

STATE OF TEXAS, et al.,

Defendants.

EL PASO COUNTY, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-459-OG [Consolidated Case]

CITY OF SAN ANTONIO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

No. 5:17-cv-489-OG [Consolidated Case]
DEFENDANTS’ MOTION TO DISMISS OR TRANSFER SAN ANTONIO PLAINTIFFS’ FIRST
AMENDED COMPLAINT (ECF NO. 174)

1

Case 5:17-cv-00404-OLG Document 177 Filed 08/02/17 Page 2 of 4
On July 20, 2017, Plaintiffs City of San Antonio, Texas, Bexar County, City of El Paso, Texas, Rey A. Saldana, Texas Association of Chicanos in Higher Education, La Union Del Pueblo Entero, and Workers Defense Project (collectively, “San Antonio Plaintiffs”) filed their First Amended Complaint.1 ECF No. 174. Because San Antonio Plaintiffs have filed an amended complaint, Texas files this renewed motion, pursuant to Federal Rules of Civil Procedure 7 and 12(b)(3), and 28 U.S.C. §§ 1404 and 1406, for this Court to dismiss San Antonio Plaintiffs’ First Amended Complaint or transfer it for consolidation with a related, first-filed matter pending in this Court’s Austin Division, Texas v. Travis County, Texas, et al., No. 1:17-cv-425-SS.2
In light of the fact that Texas’s arguments in support of dismissal or transfer have been fully briefed in this Court, Texas incorporates by reference the arguments and authorities raised in its Memorandum of Law in Support of Defendants’ Motion to Dismiss or Transfer the Consolidated Cases, ECF No. 32-1, as well as its reply briefs filed in support of that Motion and its motions to dismiss or transfer the complaints in intervention, ECF Nos. 84, 171. For the reasons stated therein, Texas requests that San Antonio Plaintiffs’ claims be dismissed, or alternatively, transferred to the Austin Division for consolidation with Case No. 1:17-cv-425-SS.
1 The First Amended Complaint adds Bexar County and the City of El Paso as plaintiffs to this litigation.
2 Texas previously sought to dismiss or transfer San Antonio Plaintiffs’ claims upon this Court’s order consolidating those claims with two other related lawsuits pending in this Division. See ECF Nos. 27, 32.
2

Case 5:17-cv-00404-OLG Document 177 Filed 08/02/17 Page 3 of 4
Respectfully submitted this the 4th day of August, 2017.
KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY D. STARR Deputy First Assistant Attorney General MICHAEL C. TOTH Special Counsel to the First Assistant Attorney General ANDREW D. LEONIE Associate Deputy Attorney General AUSTIN R. NIMOCKS Associate Deputy Attorney General /s/ Darren McCarty DARREN MCCARTY Special Counsel for Civil Litigation Texas Bar No. 24007631 darren.mccarty@oag.texas.gov DAVID J. HACKER Senior Counsel JOEL STONEDALE Counsel Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545 ATTORNEYS FOR TEXAS
3

Case 5:17-cv-00404-OLG Document 177 Filed 08/02/17 Page 4 of 4 CERTIFICATE OF SERVICE
I, Darren McCarty, hereby certify that on this the 2nd day of August, 2017, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Darren McCarty DARREN MCCARTY
4

 
 Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 1 of 94

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

FILED
AUG 3 0 2017

CITY OF EL CENIZO, Ct. al. Plaintiffs
v.
STATE OF TEXAS, et. al. Defendants

CLERK. U.S. DISTRICT CLERK WESTERN DISTRICt9F TEXAS
§

§
§

§

§ CIVIL NO. SA-17-CV-404-OLG

§

IConsolidated/lead easel

§

§

§

[iIirn

Pending before the Court are the El Cenizo Plaintiffs' Motion for Preliminary Injunction (docket nos. 24, 26, 154); San Antonio Plaintiffs' Motion for Preliminary Injunction (docket nos. 55, 77, 151, 158); El Paso County Plaintiffs' Motion for Preliminary Injunction (docket nos. 56,
149); City of Austin's Motion for Preliminary Injunction (docket nos. 57, 97, 103, 146); City of
Dallas' Motion for Preliminary Injunction (docket no. 152); Travis County Plaintiffs' Motion for
Preliminary Junction (docket nos. 58, 79, 148); City of Houston's Motion for Preliminary Injunction (docket no. 150); and Texas Association of Hispanic County Judges and County
Commissioners' Motion for Preliminary Injunction (docket no. 144). Defendants have filed responses in opposition to all motions (docket nos. 91, 172). The United States has filed a
Statement of Interest (docket no. 90); Harris County has filed an amicus brief and declaration in support of the motions (docket nos. 116, 166); and amici briefs have also been filed by the Major Cities Chiefs Association, Police Executive Research Forum, and United States Conference of
Mayors (docket no. 165); The Anti-Defamation League (docket no. 125); the Immigration
Reform Law Institute (docket no. 137); and The Episcopal Diocese of Texas, et. al. (docket no.
176). The Court held an evidentiary hearing on June 26, 2017. After considering the parties'

1

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 2 of 94
arguments and reviewing the evidence and the applicable law, the Court finds that Plaintiffs' motions for preliminary injunction should be GRANTED as follows.
I.
Statement of the case This case involves the constitutionality of Senate Bill 4, which relates to immigration
enforcement by local governmental entities, imposes duties and liabilities on certain persons in the criminal justice system, provides civil penalties, and creates a criminal offense. SB 4 was passed by the 85th Texas legislature and signed into law on May 7, 2017 and becomes effective
on September 1, 2017.1 The full text of SB 4 is attached to this order. The City of El Cenizo and LULAC filed this lawsuit on May 8, 2017 and other plaintiffs subsequently joined in the lawsuit by intervention or consolidation.2 Plaintiffs then moved for preliminary injunctive relief to enjoin the implementation and enforcement of SB 4 before it becomes effective.
II.
Jurisdiction, Article III standing, and venue The Court has jurisdiction over the claims in this lawsuit pursuant to 28 U.S.C. § § 1331, 1343 and 1367. The Court has remedial authority under the Declaratory Judgment Act, 28 U.S.C. § 2201-02. The Court also has the equitable authority to enjoin enforcement of a state law that conflicts with federal law. Exparte Young, 209 U.S. 123, 155-156 (1908). Venue is proper in the
'Texas Legislature Online, Bill History for SB 4, available at p://www.capitol.state .tx.us/BillLookup/Historv.aspx?LegSess=85R&Bill=SB4.
2See City of El Cenizo Plaintiffs' Second Amended Complaint (docket no. 31); City of San
Antonio's First Amended Complaint (docket no. 174); El Paso County Plaintiffs' First Amended Complaint (docket no. 51); City of Austin's Complaint (docket no. 37); Travis County Plaintiffs' Complaint (docket no. 33); City of Dallas' Complaint (docket no. 96); City of Houston's Complaint
(docket no. 139); Texas Ass'n of Hispanic County Judges and County Commissioners' Complaint
(docket no. 142).

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 3 of 94
Western District of Texas, San Antonio Division. See docket no. 179. The parties invoking
federal jurisdiction "must show an injury that is concrete, particularized, and actual or imminent;
fairly traceable to the challenged action; and redressable by a favorable ruling." Texas v. United
States, 809 F.3d 134, 150 (5th Cir. 2015). "The presence of one party with standing is sufficient to satisf' Article III's case-or-controversy requirement." Id. Article III standing is apparent from the face of the pleadings in this case.
III.
Standard and process of review
To obtain a preliminary injunction, movants must establish each of the following four
factors:
(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) the threatened injury if the injunction is denied outweighs any harm that will result if
the injunction is granted; and
(4) granting an injunction will not disserve the public interest.
Texas v. US., 809 F.3d at 150. "The purpose of a preliminary injunction is merely to preserve the relative positions ofthe parties until a trial on the merits can be held." Univ. ofTexas v.
Camenisch, 451 U.S. 390, 395 (1981). Preliminary injunctions that would change, rather than
3Defendants challenged venue and sought transfer to the Austin division to consolidate this lawsuit with Civil Action l:17-CV-425-SS. Subject matter jurisdiction was challenged in the Austin case, so the undersigned judge held the motion to transfer in abeyance. The Court held an evidentiary hearing on the preliminary injunction motions on June 26, 2017, but refrained from taking any action pending a decision on subject matter jurisdiction in the related case. The Austin case was dismissed for lack of subject matter jurisdiction on August 9, 2017 and consolidation was no longer an option. The undersigned judge denied the motion to transfer and consolidate on August 15, 2017, and then proceeded with consideration of the motions for preliminary injunction. The Court has also been occupied with Texas redistricting cases and issues this opinion under severe time constraints. Nevertheless, the Court has given careful consideration to all of the issues herein.

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 4 of 94
maintain, the status quo are generally disfavored and should not issue unless the facts and law clearly favor the moving party. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). Senate Bill 4 has not been implemented or enforced; thus, Movants are seeking to preserve, not alter, the status quo. At the same time, Movants' request for preliminary injunctive relief is
timely and not premature. "A fundamental principle of preliminary injunctions [is that] [a]n injunction is of no help if one must wait to suffer injury before the court grants it." Texas v. US.,
809 F.3d at 173 n.137 (citing United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001)). This
Court need not wait for an "early snapshot" of SB 4 enforcement before considering preliminary injunctive relief. Id.4 Given the limited purpose of a preliminary injunction, and given the haste that is often necessary if the status quo is to be preserved, "a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Camenisch, 451 U.S. at 3955 Ultimately, the decision to grant preliminary injunctive relief rests in the sound discretion of the district court, and is "often dependent as much on the equities of [the] case as the substance of the legal issues it presents."
-, Trump v. Int'l Refugee Assistance Project, U.S. 137 S.Ct. 2080, 2087 (2017).
41n Texas v. Us., 809 F.3d 134, the federal program called Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA) was enjoined to prevent implementation. The Fifth
Circuit determined that the states seeking to enjoin DAPA were "not required to suffer the injury of [the]
legal impact before seeking an injunction." Id. at 173 n. 137. 51n fact, the Court may rely upon otherwise inadmissible evidence when considering a
preliminary injunction. Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993); Tex.
Commerce Bank Nat'l Ass 'n v. State ofFlorida, 1997 WL 181532, at *4 (N.D. Tex. Apr. 9, 1997) (in a
preliminary injunction proceeding, "the court may rely on hearsay evidence and may even give inadmissible evidence some weight"), aff'd, 138 F.3d 179 (5th Cir. 1998).

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 5 of 94
Iv. Substantial likelihood of success on the merits
At this early juncture in the case, movants are not tasked with showing that they will
succeed on the merits, but they must show that they are likely to prevail on at least one of their claims at the merits stage of the proceedings. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs assert, inter alia, that SB 4, on its face and as applied, is
preempted by federal law and violates the Supremacy Clause, the First Amendment, the Fourteenth Amendment, the Fourth Amendment, the Ninth Amendment, and the Tenth
Amendment. They also assert that SB 4 violates Section 2 of the Voting Rights Act and the Texas Constitution's separation of powers, due course of law, freedom of speech, and home rule
provisions. Because SB 4 does not take effect until September 1, 2017, the Court has limited its analysis to those claims that may be construed as facial challenges. There are numerous claims that the Court does not address, either because it is unnecessary to reach them or because they are "as applied" challenges. The Court's findings herein are preliminary, based on the
"likelihood of success" standard, and may be revised at the merits stage of the litigation. Federal Preemption
A. Supremacy Clause State law that conflicts with federal law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 745-46 (1981) (quoting U.S. Const. art. VI, cl. 2; McCulloch v. Maryland, 17 U.S. 316, 427 (1819)). When reviewing constitutional challenges under the Supremacy Clause, courts must consider two cornerstones: First, courts must "start with the assumption that the historic
police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 6 of 94

Second, courts must consider '"[t]he purpose of Congress [as] the ultimate touchstone" of

preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail

Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). Congress's intent may be "explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing

Co., 430 U.S. 519, 525 (1977).

B. Three types of preemption

When Congress has made clear it intends to occupy an entire field of regulation, any state

regulation of that field will be expressly preempted. Puerto Rico v. Franklin California Tax-Free

Tr.,

U.S. ,136 S. Ct. 1938, 1945 (2016). However, even without an express preemption

provision, the Supreme Court has found that state law must yield to a congressional act in at least

two circumstances. When Congress intends federal law to "occupy the field," state law in that

area is preempted. California v. ARC Am. Corp., 490 U.S. 93, 100 (1989) (describing field

preemption); see also UnitedStates v. Locke, 529 U.S. 89, 115 (2000) (citation omitted). And,
even if Congress has not occupied the field, state law is naturally preempted to the extent of any

conflict with a federal statute. Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (describing

conflict preemption); ARC America Corp., 490 U.S. at 100-01; Locke, 529 U.S. at 109. The

Supreme Court has found state law to be preempted when it is impossible to comply with both

state and federal law, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

142-43 (1963), and where "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress." Hines, 312 U.S. at 67. Whether the state law presents a sufficient

obstacle is a matter ofjudgment informed by examining the federal statute as a whole and

identifring its purpose and intended effects. Hines, 312 U.S. at 67-68.

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1. Express Preemption Congress can expressly preempt state law by including a preemption clause in a statute
making it clear it intends to occupy an entire field of regulation. Franklin Caljfornia Tax-Free Tr., 136 S. Ct. at 1945. Where a statute contains an express preemption clause, the court's task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress's preemptive intent. Sprietsma v. Mercury Marine, a Div. ofBrunswick Corp., 537 U.S. 51, 62-63 (2002). However, even inclusion of an express preemption clause in a statute does not bar the ordinary working of conflict preemption principles. Id. If a federal statute contains no express preemption provision, the state or local
regulation will be sustained unless it conflicts with federal law or would frustrate the federal
scheme, or unless the court discerns from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the state. Bldg. & Const. Trades Council ofMetro. Dist. v. Associated Builders & Contractors ofMassachusetts/Rhode Island, Inc., 507 U.S. 218, 224
(1993). 2. Field Preemption
Field preemption precludes a state "from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Arizona v. United States, 567 U.S. 387, 399 (2012). Congress's intent to occupy a
field "can be inferred from a framework of regulation 'so pervasive ... that Congress left no room for the States to supplement it' or where there is a 'federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also English v. Gen.
Elec. Co., 496 U.S. 72, 79 (1990). Matters left unaddressed, however, in a "comprehensive and

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 8 of 94

detailed" "scheme are presumably ... subject to the disposition" of state law. 0 'Melveny &

Myers v. FDIC, 512 U.S. 79, 85 (1994).

3. Conflict Preemption Conflict preemption, on the other hand, preempts state laws which make "compliance with both federal and state regulations ... a physical impossibility." Florida Lime, 373 U.S. at

142-43 (citations omitted). It also preempts state laws which stand "as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Crosby, 530 U.S. at 372-73. The test of whether
both federal and state regulations may operate, or whether the state regulation must give way, is
whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives. Florida Lime, 373 U.S. at

142.

C. Congress and Immigration Enforcement

To determine whether a state law conflicts with Congress's purposes and objectives, we

must first ascertain the nature of the federal interest. Crosby, 530 U.S. at 372-73; Hiliman v.

U.S., Maretta,

133 5. Ct. 1943, 1950 (2013). The Federal Government has broad,

undoubted power over immigration which rests, in part, on its constitutional power to "establish

a uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4, and on its inherent sovereign
power to control and conduct foreign relations. See Toll v. Moreno, 458 U.S. 1, 10

(1982). Federal law specifies, among other things, categories of aliens who are ineligible to be

admitted to the United States, 8 U.S.C. § 1182; requires aliens to register with the Federal
Government and to carry proof of status, § 1304(e), 1306(a); imposes sanctions on employers
who hire unauthorized workers, § 1 324a; and specifies which aliens may be removed and the

8

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procedures for doing so, § 1227. Removal is generally a civil matter, and one of its principal
features is the broad discretion exercised by immigration officials. Immigration and Customs
Enforcement (ICE), an agency within the Department of Homeland Security (DHS), is
responsible for identifying, apprehending, and removing those classified by the INA as "deportable aliens." 8 U.S.C. § 1227(a); Arizona, 567 U.S. at 387.
D. Analysis
Preemption of the Entire Statute First, the Court will address Plaintiffs' argument that SB 4 is preempted in its entirety.6 The City of Dallas argues that SB 4 should be preempted in its entirety because it authorizes local enforcement of all immigration law. However, the City of Dallas has not shown that Congress has entirely preempted state or local regulation in the field of immigration. In fact, the Supreme Court has found that states may regulate certain matters related to immigration. See,
e.g., Arizona, 567 U.S. at 400. Therefore, the Court finds that Plaintiffs have failed to show that SB 4 is likely preempted in its entirety. The Court will proceed to analyze each challenged
provision of SB 4 to determine the likelihood that Plaintiffs will succeed on the merits of their
preemption arguments.
In order to determine if any part of SB 4 is preempted, the Court must determine which specific components of federal law conflict with the newly enacted state statute. PLIVA, Inc. v.
Mensing, 564 U.S. 604, 611 (2011) ("Pre-emption analysis requires us to compare federal and state law"). Plaintiffs argue SB 4 conflicts with federal law in several ways. First, Plaintiffs argue that SB 4 is preempted in its entirety because it "generally upsets the careful balance Congress
6Docketno. 152 at 11.

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has struck between encouraging local assistance and preserving local discretion."7 Second,
Plaintiffs argue that SB 4's immigration status inquiry provision requires local officers to make immigration status determinations, thus invading the federal government's exclusive control of immigration.8 Third, Plaintiffs claim SB 4's enforcement assistance requirements conflict with
federal law. Plaintiffs argue that SB 4 is in conflict with 8 U.S.C. § 1357, 1373, and 1644.
The provisions of SB 4 codified at Tex. Gov't Code § 752.05 3(b) impose prohibitions
against certain local policies relating to four topics: (1) immigration status inquiries ( 752.053 (b)( 1)); (2) sharing and maintaining immigration status information ( 752.053(b)(2)); (3) immigration enforcement assistance ( 752.053(b)(3)); and (4) permitting immigration officers to enter local jails for immigration enforcement purposes ( 752.053(b)(4)). Specifically, Section 752.053(b) prohibits local police departments and local entities from preventing their
employees from:
(1) Inquiring into the immigration status of a person under a lawful detention or under
arrest.
(2) With respect to information relating to the immigration status, lawful, or unlawful, of
any person under a lawful detention or arrest, including information regarding the person's place of birth:
a. Sending the information to or requesting or receiving the information from United States Citizenship and Immigration Services, United States Immigration and Customs Enforcement, or another relevant federal agency;
b. Maintaining the information; or c. Exchanging the information with another local entity or campus police
department or a federal or state governmental entity. (3) Assisting or cooperating with a federal immigration officer as reasonable or
necessary, including providing enforcement assistance. (4) Permitting a federal immigration officer to enter and conduct immigration
enforcement activities.
7Docket no. 24-1 at 13; Docket no. 152 at 11; and Docket no. 154 at 15.
8Docketno. 154 at 16.
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The Court considers each challenged provision in turn to determine whether Plaintiffs
have shown that they are likely to be preempted. PLIVA, Inc. v. Mensing, 564 U.S. 604, 611
(2011).
2. Immigration Status Inquiries (Section 752.053(b)(l))
Section 752.053(b)( 1) prevents supervising officials from exercising discretion over their
employees regarding inquiries about the immigration status of a person who is under lawful
detention or arrest. Section 752.053(b)(1) shares some similarities with Ariz. Rev. Stat. § 11-
1051(B), which was enacted as Section 2(B) of SB 1070. The Arizona statute was reviewed by
the Supreme Court in Arizona v. United States, 567 U.S. 387, 400 (2012). Section 2(B) provides:
For any lawful stop, detention or arrest made by a law enforcement official ... where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall
be made, when practicable, to determine the immigration status of the person[.] ... Any person who is arrested shall have the person's immigration status determined before the person is released. The person's
immigration status shall be verified with the federal government pursuant to [8 U.S.C. § 1373(c)].
The provision of SB 4 codified at Section 752.053(b)(1) provides that:
[A] local entity or campus police department may not prohibit or materially limit a person who is a commissioned peace officer ... a corrections officer, a booking clerk, a magistrate, or a district attorney, criminal district attorney, or other prosecuting attorney and who is employed by or otherwise under the direction or control of the entity or
department from ... inquiring into the immigration status of a person
under a lawful detention or under arrest.
Plaintiffs argue there are crucial distinctions between Arizona's Section 2(B) and SB 4
that render SB 4 invalid even though the Supreme Court did not invalidate Section 2(B). For
instance, Plaintiffs argue that SB 4 gives local officials, untrained in immigration enforcement
and without supervision from federal officials, the power to question detainees about their
immigration status regardless of whether the detainee is an enforcement priority under federal
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guidelines. Plaintiffs argue that placing such power in the hands of local officers would interfere
with Congress's "deliberate effort to steer a middle path" in immigration enforcement and would "obliterate the voluntary federal scheme and replace it with a system of unregulated enforcement." Crosby, 530 U.S. at 380. Plaintiffs also argue that empowering local officers to
make these inquiries conflicts with 8 U.S.C. § 1357(a), which establishes the power of a defined group of federal officers to interrogate suspected aliens without a warrant. Plaintiffs' argument raises issues of both field and conflict preemption. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
a. Field Preemption
State or local regulations in a particular field are preempted if federal law so thoroughly
occupies the field "as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Say. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982). In
Arizona the Supreme Court recognized that, under Section 2(B), mandatory status inquiries and verification by local enforcement officials would not necessarily consider federal enforcement priorities, and that officers might make an inquiry "even in cases where it seems unlikely the Attorney General would have the alien removed." Arizona, 567 U.S. at 412. Notwithstanding
these observations, the Supreme Court concluded that "if § 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has
been released, the provision likely would survive preemption." Id. at 414 (noting further that "[t]he accepted way to perform these status checks is to contact ICE). Since SB 4, like Section
2(B) of SB 1070, authorizes immigration status inquiries only within the context of a lawful
detention or arrest, the Court finds that Plaintiffs have not shown that it is likely field preempted.
9Docket no. 24-1 p. 26.
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b. Conflict Preemption Plaintiffs also claim that Section 752.053(b)(l) authorizes local officers to make warrantless inquiries about immigration status, in conflict with 8 U.S.C. § 135 7(a)( 1), which
vests warrantless interrogation authority in a defined group of federal agents.'° Plaintiffs also argue that this case is distinguishable from Arizona because it is not the scope of the detentions under SB 4 that raise constitutional concerns, but the grant to local officers of the authority
reserved to federal agents under 8 U.S.C. § 135 7(a)( 1). ' Plaintiffs therefore argue that Congress
intended that only immigration officialsor local officers participating in immigration enforcement activities pursuant to 8 U.S.C. § 1357(g)would be authorized to make
immigration inquiries. However, in Arizona, the Supreme Court, confronted with similar statutory text,'2 found that Section (2)(B) should not be preempted at the pre-enforcement stage.
Arizona, 567 U.S. at 414, 422 (" 2(B) of the Arizona law ... adds nothing to the authority that
Arizona law enforcement officers, like officers in all other States, already possess under federal
law."). Notably, Section (2)(B) made immigration status inquiries mandatory, requiring that" a reasonable attempt shall be made, when practicable, to determine the immigration status of the
person." By contrast, SB 4 does not mandate that immigration status inquires be made, but
instead leaves the decision to make immigration inquiries at the discretion of local officers.
Section (2)(B) also required that immigration status be verified with ICE. No parallel
'°Docket no. 150 P. 23. "Docket no. 150 p. 20-25. '2Section 2(b) require both that, as to persons placed under arrest, officers have "the persons immigration status determined before the person is released" and that "[t]he person's immigration status shall be verified with the federal government pursuant to [8 U.S.C. § 1373 (c)]." The Supreme Court concluded that "[t]he federal scheme leaves room for a policy requiring state officials to contact ICE as a
routine matter" but did not explicitly discuss the Supremacy Clause implication of a state law requiring or
authorizing immigration status inquiries directed to detainees, rather than to ICE.
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requirement exists in SB 4, where a local officer can decide whether or not to inquire and whether or not to verify or share the information obtained with ICE. The Court cannot find that Plaintiffs are likely to succeed on the merits of their preemption arguments regarding Section 752.053(b)(l). The immigration status inquiry permitted under SB 4 could only take place during an already lawful detention or arrest.13 However, it is crucial for the Court to note that SB 4 only permits immigration status inquiries during an already lawful detention or arrest. Section 752.053(b)(l) permits an immigration status inquiry when a person is lawfully detained or arrested, but does not purport to authorize local officers to effect arrests or prolong detentions in
order to inquire about or investigate immigration status. SB 4's immigration status inquiry
provision does not create an independent ground for conducting a stop. Therefore under SB 4 an
officer may not detain or arrest an individual for the sole purpose of making an immigration
inquiry.
3. Information Sharing (Section 752.053 (b)(2)) Section 752.053(b)(2) prevents local entities and campus police departments from adopting, enforcing, or endorsing policies that would prohibit local officials from maintaining immigration status information or exchanging it with federal, state, or local government entities. Texas contends that this prohibition is "fully consonant with federal immigration statutes
evincing a policy in favor of States sharing immigration-related information with the federal
government."4 Texas relies on the Arizona case for the proposition that consultation between
'3The Fifth Circuit in Muehier v. Mena, 544 U.S. 93, 94 (2005) examined immigration inquiries
during the course of a lawful detention and despite having ample opportunity to hold immigration status
inquiries by local or state officers are impennissible during an otherwise lawful detention, it did not hold so. Although in Mena the challenges were under the Fourth Amendment the Fifth Circuit held the immigration inquiry during a lawful detention was permissible.
14Docket no. 91 at 28.
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federal and state officials is not only constitutional but "an important part of the immigration
system." Arizona, 567 U.S. at 411. Texas further seeks to assure the Court that "SB 4 promotes [federal immigration power] by encouraging greater cooperation between state and local officials and the federal government."15 The Court also notes the similarities between Section 752.053(b)(2) and 8 U.S.C. § 1373, which states in pertinent part:
Notwithstanding any other provision of Federal, State, or local law, no
person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect
to information regarding the immigration status, lawful or unlawful, of
any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.
Plaintiffs argue Section 752.053(b)(2) is preempted because it regulates the same activity as 8 U.S.C. § 1373 but in a different manner, because SB 4 eliminates local discretion regarding
the sharing of information with ICE.'6 Plaintiffs' argument is one of conflict preemption, because they argue that implementation of Section 752.053(b)(2) would conflict with 8 U.S.C. §
1373. a. Conflict Preemption
The Supreme Court's holding in Arizona indicates that, under the scheme established by Congress for communication of immigration status immigration, there is room for state and local participation. The Supreme Court noted that "[c]onsultation between federal and state officials is
'5Docket no. 91 at 28.
'61d.
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an important feature of the immigration system" and that Congress "has encouraged the sharing of information about possible immigration violations." Arizona, 567 U.S. at 411-12. The federal
scheme thus leaves room for a policy requiring state and local officers to contact ICE as a routine matter. Whiting, 563 U.S. at 609-10. The Supreme Court further held that, "[clonsultation
between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations." Id.
(citing 8 U.S.C. § 1357(g)(10)(A), 1373(c)). The Supreme Court in analyzing Section 2(B) also recognized that while there are
hypothetical situations in which Section 2(B) would be unconstitutional, there was a way for the statute to be read to comply with federal law. Here, because Plaintiffs make a facial challenge, it
may "only succeed ... by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications." Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (emphasis added)). In Arizona, the Supreme Court concluded it was improper to enjoin Section 2(B) before the state
courts had an opportunity to construe it and without some showing that enforcement of the
provision in fact conflicted with federal immigration law and its objectives. Arizona, 567 U.S. at 416. Similarly here, this Court finds that under the Supreme Court's holding in Arizona it would be improper to enjoin Section 752.053(b)(2) at the pre-enforcement stage. However, the Court
finds that the only permittedbut not requiredaction under SB 4 following an immigration inquiry is sharing, and maintaining information. If for example, during a lawful stop an officer
obtains information that the detained individual is undocumented, the officer may not arrest the
individual or prolong the detention on this basis. However, under SB 4, officers are permitted-
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again, not requiredto share this information with ICE, or other appropriate federal agencies, or
law enforcement entities. 17
b. Penalties
Plaintiffs also argue that Section 752.053(b)(2) is preempted because its information-
sharing requirements are enforced with penalties that Congress declined to impose.'8 Plaintiffs
argue that adding a penalty provision to 8 U.S.C. § 1373 is exclusively within Congress's authority, and that Congress is currently considering whether to enact penalties for non-
compliance with 8 U.S.C. § 1373.' Like SB 4, Section 2(B) of Arizona's SB 1070 included civil
penalties for non-compliance. Ariz. Rev. Stat. § 11-1051(H).20 Although the Supreme Court did
not directly address the issue of penalties for non-compliance with information-sharing requirements of SB 1070, it did address penalty provisions attached to other sections of the
Arizona statute and found them to be preempted because they either created penalties that interfered with Congress's intent or invaded a field occupied by the Federal Government.
Arizona v. United States, 567 U.S. 387, 403 (2012) (state criminal penalties for violations of
17See p. 84-88 infra.
18Docket no. 154 at 16. 19 Docket no. 154 at 17.
20Arizona' s SB 1070 imposed both civil penalties against localities "that adopt[] or implement[] a
policy that limits or restricts the enforcement of federal immigration laws, including 8 United States Code
§ 1373 and 1644," SB 1070 Section 2(B), Ariz. Rev. Stat. § 11-1051(H), and criminal penalties against aliens for failure to carry registration documents and those who applied for work when not authorized to work, SB 1070 Sections 3(A) and 5(C), Ariz. Rev. Stat. § 13-1509(A) and 13-2928(C). The provisions regarding civil penalties for localities in SB 4 and Arizona's SB 1070 are similar, although Texas's
penalties are more severe. The Arizona statute provided for civil penalties of "not less than five hundred
dollars and not more than five thousand dollars for each day that the policy has remained in effect after
the filing of an action" challenging the policy. Ariz. Rev. Stat. § 11-1051(H). The penalty provisions of SB 4 authorize a civil penalty of "not less than $1,000 and not more than $1,500 for the first violation"
and "not less than $25,000 and not more than $25,500 for each subsequent violation[,]" where "each day
of a continuing violation. . . constitutes a separate violation[,]" plus the removal from office of any "person holding an elective or appointive office of a political subdivision of this state" that violates Section 752.053. SB 4 Section 1.01, Tex. Gov't Code § 752.056 and 752.0565.
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federal laws regarding unauthorized employment and carrying registration documents preempted
both because they "ignore[] the basic premise of field preemptionthat States may not enter, in any respect, an area the Federal Government has reserved for itself' and also because
"[p]ermitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted"). In contrast, the Supreme Court has allowed states to create additional penalties for conduct that violates federal law where the regulated conduct falls within the regulatory power reserved to the state, rather than within an "area of dominant federal concern." Whiting, 563 U.S., at 601, 604-05.
The crucial distinction between the penalties that were preempted in Arizona and those
that were not in Whiting is that the preempted penalties were either attached to state regulation of matters that the Court found were reserved for Congress, or they conflicted with Congressional intent. SB 1070's penalties for failing to comply with its mandatory information-sharing
requirements were not preempted in Arizona, and the Court found that the substantive requirement was not preempted either, because it did not intrude into an exclusively federal field and could operate in a manner that did not conflict with Congressional intent. Arizona, 567 U.S. at 412 ("Congress has done nothing to suggest it is inappropriate to communicate with ICE in
these situations. Indeed, it has encouraged the sharing of information about possible immigration violations."). In light of the Supreme Court's holding in Arizona, and the similarity in the
substantive requirements between Section 752.053(b)(2), 8 U.S.C. § 1373, and the information-
sharing provisions of Arizona's SB 1070, the Court cannot conclude that Plaintiffs have shown a likelihood of success on the merits of their claim that Section 752.053(b)(2) is preempted.21
21The Court will address penalties as applied to other provisions of SB 4 below.
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4. Enforcement Assistance (Section 752.053(b)(3))
Plaintiffs argue that §752.053(b)(3) conflicts with federal law because it allows state
officials to perform the duties of immigration officers in a manner inconsistent with federal law
under 8 U.S.C. § 1357. Section 752.053(b)(3) prevents local entities from prohibiting or
materially limiting their employees from "[a]ssisting or cooperating with a federal immigration
officer as reasonable or necessary, including providing enforcement assistance." The INA, on the
other hand, sets forth a number of conditions that must be satisfied in order for state and local
officers to perform the functions of immigration enforcement officers. 8 U.S.C. § 1357(g).
8 U.S.C. 1357(g) states as follows:
(1) Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or
political subdivision and to the extent consistent with State and local law.
(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training
regarding the enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as
provided in a written agreement between the Attorney General and the State or subdivision.
(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers
and duties that may be, or are required to be, exercised or performed by the
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individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the
individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.
(6) The Attorney General may not accept a service under this subsection if the
service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the
officer or employee in a civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an agreement under
this subsection in order for any officer or employee of a State or political
subdivision of a State
(A) to communicate with the Attorney General regarding the
immigration status of any individual, including reporting knowledge
that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.
These requirements include a written agreement between federal immigration
enforcement and the local entity, which provides "a written certification that the officers or
employees performing the function under the agreement have received adequate training
regarding the enforcement of relevant Federal immigration laws"; requires that the local officer
or employee "shall be subject to the direction and supervision of the Attorney General"; specifies
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"the specific powers and duties that may be, or are required to be, exercised or performed by the
individual, the duration of the authority of the individual, and the position of the agency of the
Attorney General who is required to supervise and direct the individual"; and imposes other
specific requirements. 8 U.S.C. § 1357(g). At issue is whether 8 U.S.C. § 1357(g)(9) and (10) ought to be interpreted as
affirmatively authorizing local immigration enforcement or merely imposing two limitations on
the rest of subsection (g). First, 8 u.s.c. § 1357(g)(9) provides that subsection (g) does not "require any State or political subdivision of a State to enter into an agreement with the Attorney
General under this subsection." Second, 8 u.s.c. § 1357(g)(l0) states that subsection (g) does
not:
require an agreement under this subsection in order for any officer
or employee of a State or political subdivision of a State ... to
communicate with the Attorney General regarding the immigration
status of any individual, including reporting knowledge that a
particular alien is not lawfully present in the United States; or otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.
Plaintiffs argue that § 752.053(b)(3) conflicts with 8 U.S.C. 1357(g) in several ways. First, Plaintiffs claim that 8 U.S.C. § 1357(g), read as a whole, requires that local entities enter into written agreements with the Attorney General22 before local law enforcement can
systematically carry out the functions of immigration officers. Second, Plaintiffs argue that
Section 752.053(b)(3) is preempted because it does not require local officials to act under the
supervision and direction of the Attorney General and undergo training to perform the functions
22Although the functions of the former Immigration and Naturalization Service (iNS) have been assumed by ICE and placed within DHS rather than the Department of Justice, see, e.g., Si/va v. United States, 16-1870, 2017 WL 3399882, at *1 n.2 (8th Cir. Aug. 9,2017), the Court continues to refer to the "Attorney General" in accordance with the INA's statutory text and the Supreme Court in Arizona, and
because the distinction is not material to the issues in this case.
21

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of immigration officers as required in 8 U.S.C. § 1357(g). Third, Plaintiffs argue that 8 u.s.c. §
1357(g)(1O) should not be read in a way that negates the requirements imposed in the remainder
of subsection (g).23
a. Formal Agreement, Training, and Oversight
Plaintiffs argue that SB 4 goes beyond authorizing immigration status inquiries and
information sharing, and places immigration enforcement into the hands of local officials
without also requiring that they meet the requirements established by Congress for local participation in immigration enforcement.24 Plaintiffs have raised both field and conflict preemption arguments regarding immigration enforcement by local officials.
Plaintiffs argue that Section 752.053(b)(3) is distinguishable from Section 2(B) in Arizona because SB 4 empowers local officials to go beyond the local cooperation and
information-sharing that the Supreme Court approved, and into the field of enforcing immigration law.25 Plaintiffs argue that this distinction is evident from the structure of SB 4,
23Plaintiffs also argue 752.053(b)(3) is preempted because it requires cities to offer free services to the federal government, in conflict with 8 U.S.C. 1357(g)(6) and 31 U.S.C. § 1342. Docket no. 139. The Court does not find it necessary, at this juncture, to reach this claim.
24Docket no. 150 p. 19-23 (citing 8 U.S.C. § 1357(g)). 25DHS guidance also draws a clear distinction between cooperation and communication, noting
that, while local policies prohibiting the sharing of immigration information are prohibited by the NA,
In requiring cooperation, the lNA thus requires that a state or local law enforcement officer who assists D}{S officers in their enforcement of the immigration laws must at all times have the freedom to adapt to federal priorities and direction and conform to federal discretion, rather than being subject to systematic mandatory state or local directives that may be at odds with DHS. Although a similar lack of receptiveness to federal priorities might pervade even a system that gives officers discretion, any such state or local government-directed mandate would necessarily function as a parallel or contradictory direction, in competition with the Secretary's direction, as to how to enforce immigration law, thereby eroding the federal government's exclusive authority over immigration.
While any mandatory scheme raises these concerns, they are
22

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which addresses local cooperation, information-sharing, and immigration enforcement in different subsections of Section 752.053(b). Finally, Plaintiffs argue that 8 U.S.C. § 1357(g)(10), contrary to Defendants' arguments, does not negate the specific requirements set out in the rest of subsection (g). Defendants, on the other hand, read the formal agreement requirements set out
in Section 1357(g) as one of the permissible ways for localities to cooperate with immigration
officials.
Defendants argue Section 1357(g) does not preempt other forms of local cooperation with federal immigration officials outside the context of a formal written agreement.26 Defendants further argue "Congress could not have legislated a 'compulsory local role' in federal immigration enforcement, because that would be unconstitutional commandeering under the
Tenth Amendment." Docket no. 91 p. 33 (internal citations omitted). The Court will address three issues raised by the parties' arguments: (1) first whether the State may enact regulation
creating their own requirementsor lack thereoffor local officers to participate in immigration
enforcement in light of 8 U.S.C. § 1357(g) (field preemption); (2) whether subsection (g)(10) can
be read to create an exemption from the requirements outlined in § 1357(g)(1)-(5); and (3)
whether SB 4's enforcement provision creates a different system for cooperation (conflict
preemption).
particularly pressing where state or local mandates are codified because such codified laws are by their nature more difficult to adjust to and
respond to changing priorities of the federal government. U.S. Dep 't ofHomeland Securily ("DHS"), Guidance on State and Local Governments 'Assistance in Immigration Enforcement and Related Matters 9-10 (July 16, 2015) available at https ://www.dhs.ov/publication/uidance-state-and-local-governments-assistance-immiration-
enforcement-and-related. 26Docket no. 91 at 22.
23

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Field Preemption
Congress may "foreclose any state regulation in the area," irrespective of whether state
law is consistent or inconsistent with "federal standards." Oneok, Inc. v. Learjet, Inc., U.S. , 135 S. Ct. 1591, 1595 (2015) (citing Arizona, 567 U.s at 401 (emphasis added)).
In such situations, Congress has forbidden the State to take action in the field that the federal
statute pre-empts. Id. Congress's intent to occupy a field "can be inferred from a framework of regulation 'so pervasive ... that Congress left no room for the States to supplement it' or where there is a 'federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Arizona, 567 U.S. at 399. The nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law, are all important in considering the question of whether supreme federal enactments preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.s. 52, 70 (1941).
Plaintiffs have argued Texas's regulation of immigration enforcement has impermissibly
encroached upon a field that Congress exclusively reserved for the Federal government.27 Plaintiffs argue the extensive requirements set out in 8 U.S.C. § 1357(g) which delineate the training, supervision, and certification requirements for local officials to participate in immigration enforcement, coupled with Section 11 03(a)(1 0), extending local officials authority
to enforce immigration laws in the event of an "imminent mass influx of aliens arriving off the coast of the United States"; and Section 1252c, granting local authority to arrest in criminal
illegal reentry cases, "but only after the State or local law enforcement officials obtain
27Docketno. 151 at 12.

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appropriate confirmation," makes clear Congress intended to prevent unilateral State
involvement and State authorization of immigration enforcement.28 The Supreme Court's reasoning in Hines shed light on the factors courts should consider
when analyzing preemption challenges. Hines v. Davidowitz, 312 U.S. at 70. First, courts ought
to consider the nature of the power exerted by Congress. Here, Congress set out exacting
requirements to be met before involving local officers in immigration enforcement. These
requirements indicate Congress intended for the Federal Governmentthe Attorney General in particularto provide oversight and direction to local officers.
Next, courts should consider the object Congress sought to obtain. Hines, 312 U.S. at 70.
The requirements of 8 U.S.C. § 1357(g) indicate supervision and direction are a crucial component of immigration enforcement by local officials. As the Supreme Court has noted, "[d]iscretion in the enforcement of immigration law embraces immediate human concerns."
Arizona, 567 U.S. at 396. Notably, 8 U.S.C. § 1357(g)(3) states "in performing a function under
this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General." Thus, subsection (g)(3) makes clear that a local officer or employee of a state or political subdivision exercising authority granted under 8 U.S.C. § 1357(g) must be subject to the direction and supervision of the
Attorney General. Subsection (g)(3) states in clear terms it applies to functions exercised under the entire subsection (g), including subsection (g)(1 0). Because subsection (g) grants enforcement authority it can be inferred Congress sought to ensure that the Attorney General and the Federal Government retained enforcement direction and discretion in all local enforcement efforts including those contemplated under subsection (g)(10).
28Docketno. 151 at 11.
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Third, the Court ought to consider the character of the obligations imposed by 8 U.S.C. § 1357(g). Plaintiffs argue the requirement of formal agreements between the Attorney General and the State or locality illustrates the importance of Federal direction and supervision in
immigration enforcement. Plaintiffs further argue the training and certification requirements in 8
U.S.C. § 1357(g) highlight the importance of creating uniform enforcement policies. In Arizona the Supreme Court reasoned that "authorizing state and local officers to engage in these enforcement activities as a general matter, [...] creates an obstacle to the full purposes and objectives of Congress." Arizona, 567 U.S. at 410 (finding state law authorizing state officers to make warrantless arrests based on removability was preempted). In analyzing Section 6 in Arizona, the Supreme Court reasoned that "Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer." Arizona, 567 U.S. at 408
(emphasis added). Further, "[t]here are significant complexities involved in enforcing federal
immigration law." Id. The Supreme Court's analysis in Arizona made clear the importance ofthe supervising role of the Attorney General as well as the written certifications requirements. Id. at
409 (noting that "agreements reached with the Attorney General must contain written
certification that officers have received adequate training to carry out the duties of an immigration officer"). Thus, the Court finds merit in Plaintiffs' argument that States should not be able to exempt themselves from the exacting requirements of 8 U.S.C. § 1357(g) by creating
State regulation that circumvents such requirements. The Court further finds, after examining the federal statute as a whole and identifying its purpose and intended effects, that Plaintiffs have
shown a likelihood that the federal interest in the field of immigration enforcement is so dominant that it may preclude enforcement of state laws on this subject and Tex. Gov't Code § 752.053(b)(3) is likely to be field preempted.29
29Congress's intent to preserve federal control over local participation in immigration
26

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ii. Conflict Preemption
Plaintiffs have also raised issues of conflict preemption. The test of whether both federal
and state regulations may operate, or the state regulation must give way, is whether both
regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives. Florida Lime, 373 U.S. at 142.
Statutory interpretation requires more than concentration upon isolated words; rather,
consideration must be given to the "total corpus of pertinent law and the policies that inspired
ostensibly inconsistent provisions." Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.s. 235, 250 (1970) (citing Richards v. United States, 369 U.S. 1, 11(1962)); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956); United States v. Hutcheson, 312 U.S. 219, 235 (1941)). Statutory interpretation requires courts to "rea[d] the whole statutory text, conside[r] the
purpose and context of the statute, and consul[t] any precedents or authorities that inform the analysis." Dolan v. Postal Service, 546 U.S. 481, 486 (2006). An inquiry into statutory interpretation must consider "the broader context of the statute as a whole." Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997). The Court must therefore decide whether Section 1 357(g)(1 0), when read in the context
of the whole statute, creates a way for state and local police to "assist[] or cooperat[e] with a
federal immigration officer" on a routine basis, circumventing the requirements Congress set out
enforcement is also evident from Section 135 7(g)( 10)' s reference to local officer "cooperat[ion]" in the "removal" of aliens not lawfully present. It is clear that state and local officers have no authority to remove an alien from the United States, or to institute or conduct removal proceedings. Congress's inclusion of this function among the four enforcement measures listed in Section 13 57(g)( 10) therefore suggests that they intended this "cooperation" to be subject to federal supervision and control, with the Secretary having the leading and primary role. DHS Guidance on State and Local Governments'
Assistance in Immigration Enforcement and Related Matters 9 (July 16, 2015) available at
https://www.dhs.gov/publication/guidance-state-and-local-governments-assistance-immigratjonenforcement-and-related.
27

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in 8 U.S.C. § 1357 (g)(1)-(5). If Section 1357(g)(10) can be read to permit this, it would be unlikely that Section 752.053(b)(3) would be conflict preempted. However, if Section 1 357(g)(l 0) does not permit this, and no other provision of federal law authorizes this type of
informal participation in immigration enforcement by individual officers, Section 752.053(b)(3)
would frustrate the purpose of the training and supervision requirements set forth in Section 1357
(g).
To determine the intent of Congress, we first look to the statutory text. Section 1357(g) creates a comprehensive framework to permit local officials to perform the functions of immigration officers. The first requirement of this participation is that the Attorney General enter into "a written agreement" with "a State, or any political subdivision of a State[.]" 8 U.S.C. §
135 7(g)( 1). That agreement must include a "written certification that the officers or employees performing the function under the agreement have received adequate training regarding the
enforcement of relevant Federal inimigration laws." 8 U.S.C. § 1357(g)(2). Section 1357(g)(5)
requires that the agreement set out the specific powers and duties to be exercised by the local
officers or employees, the duration of their authority, and the details of their supervision by the Attorney General. And Section 1 357(g)( 10), even while appearing to excuse the requirement of
an agreement, still requires that local or state officer or employee participation in "the
identification, apprehension, detention, or removal of aliens" be in "cooperat[ion] with the
Attorney General." 8 U.S.C. 1357(g)(10). Defendants' proposed interpretation is that " 1 357(g)(10) expressly contemplates the
States' inherent authority to cooperate with the federal government in enforcing immigration
laws[.]"3° This argument conflates communication of immigration status information with
30Docket no. 91 at 30. DHS guidance on the topic makes clear that there are instances in which states are not required to seek affirmative advance authorization from the federal government for every
28

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cooperation in immigration enforcement.3' As the Court previously discussed, sharing of
immigration information is expressly addressed by 8 U.S.C. § 1373 and 1357(g)(10)(A). No
separate statute exists that describes the involvement of local or state officials in routine
immigration enforcement. The statute itself separates cooperation in sharing of information
Section 13 57(g)( 1 O)(A) and cooperation in enforcement in Section 135 7(g)( 1 0)(B). Defendants'
argument that the states possess "inherent authority" to carry out immigration enforcement is at
odds with the language of the INA, which contemplates the states, in the absence of a formal
agreement, may only "cooperat[e] with the Attorney General[.J" Subsection (g)(10)(B) allows
states to cooperate with the Attorney General absent a formal agreement; it does not place
routine enforcement authority in the hands of the states. 32
The Supreme Court in Arizona recognized there is ambiguity in what constitutes
cooperation. Arizona, 567 U.S. at 410 ("[tjhere may be some ambiguity as to what constitutes
cooperation under the federal law"). Such ambiguity is central to the determination of Plaintiffs'
likelihood of success on their conflict preemption argument regarding Section 752.053(b)(3).
Plaintiffs argue Texas cannot simply offer up local enforcement officials to routinely perform
act of assistancebut only where the assistance is part of a program that has been previously established
by the federal government. The JNA's requirement that the assistance rendered by state and local officers be cooperative or responsive to federal priorities and discretion likewise does not require affirmative authorization in advance or federal involvement in every single act of assistance. DHS may choose to confine its role simply to establishing a general program under which a state or local officer may act repeatedly in a manner that is consistent with that program and with the policy or direction set by the Federal Government as it relates to the program) DHS Guidance on State and Local Governments' Assistance in Immigration Enforcement and Related Matters 10 (July 16, 2015) available at https://www.dhs. gov/publication/guidance-state-and-Iocal-governments-assistance-immigrationenforcement-and-related. The Federal Government's own interpretation of § 135 7(g)( 10) showcases the permissible ways of cooperation outside a formal agreement. The two permissible forms of state or local participation are:( 1) through federally established programs, and (2) on a case-by-case basis.
31Docket no. 90 at 30-32.
32Defendants' argument that SB 4's does not target aliens or immigration law is unpersuasive. Although the mandates of SB 4 are directed at local officials, enforcement assistance is inexorably
intertwined with Federal immigration law.

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immigration enforcement and bypass the training, supervision, and certification requirements that Congress has established. DHS guidance illustrates that contemplated cooperation outside
formal agreements comes in the form of pre-established programs or on a "case-by-case basis."33 Further, the language of the statute indicates systematic cooperation should be at behest of the
Attorney General rather than motivated by state law. In other words, there can be no routine mandatory system established when the Attorney General has not requested it and will not supervise local enforcement.
Defendants argue "Congress went right up to the line of what it could do without running afoul of the Tenth Amendment's anti-commandeering doctrine" and that "Congress's decision to encourage voluntary local cooperation could not have preempted State-enacted
policies regulatingor even requiringlocal cooperation."34 The Court is not persuaded by this
argument. Authority to regulate immigration enforcement rests with the Federal Government.
most Arizona, 567 U.S. at 444-45 (the Federal Government retains the discretion that matters
that is, the discretion to enforce [federal immigration] law in particular cases). Texas cannot
through state lawexpand the "limited circumstances" in which local enforcement officials may
33DHS guidance regarding state and local assistance in immigration enforcement states: As contemplated by [Section 1357(g)(10)], DHS has invited and
accepted the assistance of state and local law enforcement personnel in a variety of contexts that lie outside of the written agreements provided for by paragraphs (1 )-(9) of subsection 1357(g), such as through BESTs, the
Criminal Alien Program, Fugitive Operations Task Forces, and Operation Community Shield. Moreover, state and local law enforcement officers render assistance to DHS on a case-by-case basis as immigration
matters come to their attention in the performance of their regular duties. DHS Guidance on State and Local Governments 'Assistance in Immigration Enforcement and Related Matters 7 (July 16, 2015) available at https://www.dhs.gov/publication/guidance-state-and-local-
governments-assistance-immigration-enforcement-and-related. 34Docket no. 91 at 33.
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perform the functions of immigration officers. Arizona 567 U.S. at 387. It is not the role of the State or the Court to speculate about what Congress would do in the absence of the Constitution's limits on its authority. The Court cannot tailor its application of the Supremacy
Clause based on such speculation. Defendants argue that the INA "contemplates the States' inherent authority to cooperate
[with the removal of aliens] However, the enforcement examples listed in Section
1 357(g)(1 0)(B), which include "identification, apprehension, detention, or removal" make clear this subsection was not intended to be an independent grant of power to the states. Under Texas'
interpretation, if subsection (g)( 10) was a separate grant of state authority divorced entirely from
the requirements listed in (g)( 1 )-(5), it would vest states with the right to apprehend and remove aliens without supervision and direction from the Federal Government. However, is clear that the
removal of aliens is within the sole purview of the Federal Government, and that "Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer." Arizona, 567 U.S. at 408. In Arizona the Supreme Court's stated "principal example" of these limited circumstances "is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government." Id. See
8 U.S.C. § 1357(g)(l).36 Officers covered by these agreements are subject to the Attorney

35Docket no. 91 at 30.

36The Supreme Court further considered other statutes that permit local participation outside the

agreement requirements of 8 U.S.C. § 1357(g). For example: § 11 03(a)( 10) permits local immigration

enforcement in the event of an "imminent mass influx of aliens arriving off the coast of the

United States"; and § 1252c provides local after "appropriate confirmation from [ICE]

authority to
ofthe status

arrest in criminal illegal reentry
of such individual and only for

cases, but only
such period of

time as may be required for [ICE] to take the individual into Federal custody"). Section 1324(c) also

provides local authority to arrest for the criminal offense of bringing in and harboring certain aliens. The Supreme Court's reasoning in Arizona makes clear the Court considered the grant of authority extended

by Congress to state and local officers and found that unilateral enforcement was not contemplated.

Arizona, 567 U.S. at 409.

31

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General's direction and supervision. 8 U.s.c. § 13 57(g)(3). Federal immigration law involves significant complexities, one of which is the determination of removability.37 See Padilla v. Kentucky, 559 U.S. 356, 379-80 (2010) (Alito, J., concurring in judgment). For this reason, Congress has required that enforcement cooperation agreements under Section 1357(g) contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See 8 U.S.C. § 1357(g)(2); 8 CFR § 287.5(c) (arrest power contingent on training), 287.1(g) (defining the training).38
Although the Supreme Court in Arizona did not address Section 1357(g)(10)(B) in the
broad context of enforcement, it concluded there are "limited circumstances in which state officers may perform the functions of an immigration officer." Arizona, 567 U.S. at 40 8-09. It would be paradoxical to conclude that, despite the exacting requirements set out in Section
1357(g), and despite the "limited circumstances" recognized by the Supreme Court, a state could establish its own cooperation scheme under which local officers and employees could routinely avoid the requirements imposed by Federal law. Although formal cooperation agreements are not always necessary, the Supreme Court drew a clear line distinguishing communication from enforcement cooperation. Arizona, 567 U.S. at 411-12 (discussing 8 U.S.C. § 1357(g)(10)(A)).
The Supreme Court held that putting state officers in the position of holding aliens in custody for
possible unlawful presence without federal direction or supervision would disrupt the federal
37This Circuit's own precedent recognizes the "significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable," an observation that reinforces the importance of the federal government's supervisory role over the limited contexts, including harboring, where the Attorney General has delegated arrest authority to state officers. Villas at
Parkside Partners v. City ofFarmers Branch, Tex., 726 F.3d 524, 531 (5th Cir. 2013) (citing Arizona,
567 U.S. at 408). The Attorney General's supervisory role in immigration enforcement has been the cornerstone for delegation of immigration enforcement duties to local or state enforcement officers.
38Arizona, 567 U.S. at 409.
32

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framework. Arizona, 567 U.S. at 413 ("The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism."). Similarly, this Court finds bypassing training, certification, and supervision and establishing a systematic local enforcement procedure would likely go against the program put in place by Congress. Therefore, the Court
finds that Plaintiffs have shown that they are likely to succeed on the merits of their claim that Section 752.053(b)(3) is conflict preempted.
Violation of Free Speech The City of El Cenizo Plaintiffs, City of San Antonio Plaintiffs, El Paso County Plaintiffs, Travis County Plaintiffs, City of Dallas, City of Austin, and City of Houston allege that SB 4 violates the First Amendment, as applied to the states through the Fourteenth Amendment.39 Plaintiffs' First Amendment challenge to SB 4 is three fold: the first is an overbreadth challenge; the second is a vagueness challenge; and the third is a viewpoint discrimination challenge.
A. Standing to assert First Amendment claims Defendants do not challenge Plaintiffs' standing to assert their First Amendment claims, and there is no impediment under the law that would foreclose their ability to bring such claims.
The record shows that several named plaintiffs face an imminent threat of censorship and run a real risk of punishment under the terms of SB 440 But even if the individual rights of these
named plaintiffs were not implicated, the prudential limitations on standing are relaxed in the
39Houston and Dallas also assert that SB 4 violates article I, § 8 of the Texas Constitution. The Court does not find it necessary, at this juncture, to reach the claims under the Texas Constitution.
40Docket no. 57-14, El Cenizo Exh. 32-B (Public Statements of Governor Greg Abbott) ("I'm putting the hammer down ... Texas is not going to stand for it ... We are going to be asserting fines. We're
going to be seeking court orders that could lead to putting these people behind bars, the officials who are
violating their oath of office."). Although the threat is real, the plaintiffs have not and cannot be charged
based on conduct that occurred prior to September 1 the date that SB 4 takes effect.
33

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First Amendment context. LAPD v. United Reporting Pub. Corp., 528 U.S. 32, 38-39 (1999);
Maryland Secretary ofState v. Joseph H Munson Co., 467 U.S. 947, 954-58 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973); Ctr. for Individual Freedom v. Carmouche, 449 F.3d
655, 660 (5th Cir. 2006). B. First Amendment protections
"Statements by public officials on matters of public concern must be afforded First Amendment protection." Pickering v. Board ofEducation, 391 U.S. 563, 574 (1968).' Public
officials at the local level whether elected, appointed, or otherwise employed do not relinquish their First Amendment rights which they would otherwise enjoy as private citizens to
-, comment on matters of concern. Lane v. Franks, _U.S. 134 S.Ct. 2369, 2374 (2014);
Pickering, 391 U.S. at 568. Local governmental policy on the enforcement of immigration laws is a matter of legitimate public concern.42 Free and open debate on matters of public concern is a cornerstone of democracy and the core value protected by the First Amendment. Local elected
officials, and persons who are appointed or employed by local governmental entities, are expected to engage in open, robust debate on such issues, as such debates lead to a more
informed electorate. Local officials are well informed on how SB 4 and the enforcement of
41The Pickering line of cases arise from employer regulated speech. "The government as
employer indeed has far broader powers [to regulate speech] than does the government as sovereign[.]" Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion); James v. Co/un County, 535 F.3d 365, 379 (5th Cir. 2008); see also City ofSan Diego v. Roe, 543 U.S. 77, 80 (2004) ("A governmental
employer may impose certain restraints on speech of its employees that would be unconstitutional if
applied to the general public"); Scott v. Flowers, 910 F.2d 201, 210 (5th Cir. 1990) ("the state as
employer may restrict the speech of its employees in ways in which the state as sovereign may not restrict the speech of its citizens"). In this case, the State of Texas is the sovereign and not the employer, so a more demanding level of scrutiny is required.
42"Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Lane, 134 S .Ct. at 2380 (citing Snyder v. Phelps, 562 U.S. 131 S.Ct. 1207 (2011)).

Case 5:17-cv-00404-OLG Document 189 Filed 08/30/17 Page 35 of 94
immigration laws affect local practice and policy, and must be able to speak out freely on such
issues without fear of penalty, reprisal, retaliation, and/or removal from office.43 Censoring
officials would disserve the public interest and create a serious disconnect between local officials
and the communities they serve.
C. Facial challenge to overbreadth and vagueness
Plaintiffs assert that SB 4's blanket prohibition against any local government official or
employee endorsing any policy that would materially limit immigration law is unconstitutionally vague, overbroad, and sweeping in coverage. In the First Amendment context, the facial
overbreadth and vagueness challenges are related in practice, yet analytically distinguishable.44
The courts have indicated a preference for addressing the overbreadth challenge first and, if that
fails, the vagueness challenge next. Village ofHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-45 (1983); Fairchild v. Liberty ISD, 597 F.3d 747, 755-56 (5th Cir.
2010); Un ited States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009).
SB 4 states, in relevant part:
Sec. 752.053. POLICIES AND ACTIONS REGARDING IMMIGRATION ENFORCEMENT. (a) A local entity or campus police department may not:
43"There is considerable value in encouraging, rather than inhibiting, speech by public employees. For government employees are often in the best position to know what ails the agencies for which they work. The interest at stake is as much the public's interest in receiving informed opinions as it is the employee's own right to disseminate it." Lane, 134 S.Ct. 2377 (citing Churchill, 511 U.S. at 674 (plurality opinion) and San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam )); see also Broadrick, 413
U.S. at 619 ("Public discussion of local, state, national, and international affairs is grist for the First
Amendment mill. Our decisions emphasize that free debate, uninhibited discussion, robust and wide-open
controversy, a multitude oftongues, the pressure ofideas clear across the spectrum set the pattern of First
Amendment freedoms.") (Douglas, J., dissenting).
44"[T]he vices of vagueness and overbreadth are not wholly separable, in the area of the first amendment ... when the Supreme Court has spoken of facial vagueness of statutes touching first amendment rights, it has seldom if ever, been referring to a constitutional vice different from the latent vagueness of an overbroad law." The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 873
(1970).
35

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(1) adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws Sec. 752.051 DEFINITIONS. In this subchapter: (2) "Immigration laws" means the laws of this state or federal law relating to aliens, immigrants, or immigration, including the federal Immigration and Nationality Act (8 U.S.C. Section 1101 etseq.).
(5) "Local entity" means:
(A) the governing body of a municipality, county, or special district or authority,
subject to Section 752.052;
(B) an officer or employee of or a division, department, or other body that is part of a municipality, county, or special district or authority, including a sheriff,
municipal police department, municipal attorney, or county attorney; and (C) a district attorney or criminal district attorney.
(6) "Policy" includes a formal, written rule, order, ordinance, or policy and an informal, unwritten policy.
SB 4, attached hereto (emphasis added). This prohibition does not come without harsh consequences for local officials, as reflected in the related enforcement provisions:
Sec. 752.055. COMPLAINT; EQUITABLE RELIEF.
(a) Any citizen residing in the jurisdiction of a local entity or any citizen enrolled at or employed by an institution of higher education may file a complaint with the attorney general if the person asserts facts supporting an allegation that the entity or the institution's campus police department has violated Section 752.053. The citizen must include a sworn statement with the complaint stating that to the best of the citizen's knowledge, all of the facts asserted in the complaint are true and
correct.
(b) If the attorney general determines that a complaint filed under Subsection (a)
against a local entity or campus police department is valid, the attorney general
may file a petition for a writ ofmandamus or apply for other appropriate equitable relief in a district court in Travis County or in a county in which the principal office of the entity or department is located to compel the entity or department that is suspected of violating Section 752.053 to comply with that section. (c) An appeal of a suit brought under Subsection (b) is governed by the
procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. The appellate court shall render its final order or judgment
cri

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with the least possible delay. Sec. 752.056. CIVIL PENALTY.
(a) A local entity or campus police department that is found by a court of law as having intentionally violated Section 752.053 is subject to a civil penalty in an amount: (1) not less than $1,000 and not more than $1,500 for the first violation; and (2) not less than $25,000 and not more than $25,500 for each subsequent
violation.
(b) Each day of a continuing violation of Section 752.053 constitutes a separate
violation for the civil penalty under this section. (c) The court that hears an action brought under Section 752.05 5 against the local
entity or campus police department shall determine the amount of the civil penalty
under this section.
(d) A civil penalty collected under this section shall be deposited to the credit of the compensation to victims of crime fund established under Subchapter B, Chapter 56, Code of Criminal Procedure. (e) Sovereign immunity of this state and governmental immunity of a county and municipality to suit is waived and abolished to the extent of liability created by
this section. Sec. 752.0565. REMOVAL FROM OFFICE.
(a) For purposes of Section 66.001, Civil Practice and Remedies Code, a person holding an elective or appointive office of a political subdivision of this state does an act that causes the forfeiture of the person's office if the person violates
Section 752.053. (b) The attorney general shall file a petition under Section 66.002, Civil Practice and Remedies Code, against a public officer to which Subsection (a) applies if
presented with evidence, including evidence of a statement by the public officer,
establishing probable grounds that the public officer engaged in conduct described by Subsection (a). The court in which the petition is filed shall give precedence to proceedings relating to the petition in the same manner as provided for an election contest under Section 23.101.
(c) If the person against whom an information is filed based on conduct described by Subsection (a) is found guilty as charged, the court shall enter judgment removing the person from office.
SB 4, attached hereto (emphasis added).
Plaintiffs' overbreadth and vagueness challenges to SB 4, and the endorsement
prohibition in particular, come as no surprise. As reflected in the Senate Journal on the SB 4
floor debate, the Bill's author struggled to explain the meaning of the endorsement prohibition
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but made clear that it was intended to be broad and sweeping:
Senator Perry: Endorse
Senator Garcia endorse, what's your intent here? What does endorse, it doesn't mean that they got to go through what we go through when we get endorsed. I mean, what is endorsing? I mean, it's just violating First Amendment rights.
Senator Perry: It's a, it's a, it's a more deliberative term that says we are going to endorse, enforce, support, identijj' with, and it is, it becomes part of our DNA, or culture to endorse that, that we believe enough in it to put our name on it. So, that's basically the nomenclature, if you will. We get there through different ways, to, but that's just an emphasis of how much this is important to the State of
Texas to do.
Senator Garcia: So, if the sheriff or the police chief submits an opinion piece to their local paper about this topic and they pretty much say we really don't need it, just what many of the police, law enforcement officials said during the hearing,
that it really does take away from their discretion, that they were elected to do the job, that they know what's best for the communities, and they don't really see that we need sanctuary cities, so is that endorsing a sanctuary policy that would put
them out of office?
Senator Perry: I would say it would be because it's effectively creating a culture
ofcontempt and noncompliance.
Senator Garcia: So, their free speech rights go out the window.
Senator Perry: I don't know that that's a free speech issue if you've been elected to uphold the law. You don't get the right as a free speech to go out and not
uphold the law.
Senator Garcia: So, free speech goes out the window.
Senator Perry: That's a different discussion, that's a different discussion for a different group.
Docket 56, Senate Journal, SB 4 Senate Floor Debate, 85th Legislature, February 7, 2017
(emphasis added); see also Declaration of Senator Jose Rodriguez, ¶ 30h ("At one point, the bill's author, Senator Charles Perry referred to what he called the 'wink wink' culture of County
Sheriffs not enforcing immigration laws, and how that would be a violation of SB 4, without any
explanation of how that would be enforced or addressed")
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The State has suggested that perhaps the Court could just strike the word "endorse" from SB 4 to avoid any First Amendment violations. Docket no. 91, p. 59. However, the problem is not that simple and the Court cannot rewrite a law to conform it to constitutional requirements. US. v. Stevens, 559 U.S. 460, 481 (2010). The State has also suggested that the First Amendment should not apply to government officials acting in their official capacity. This argument is antithetical to the law. The State cites Garcetti v. Ceballos, 547 U.S. 410 (2006), for this proposition. That case has no application here. In Ceballos, an employee (assistant district attorney) sued his employer (the county) for alleged retaliation after questioning the credibility of a warrant affiant, recommending dismissal of the case, and then arguing with his superiors about it. That case involved employer discipline; this case does not. The State of Texas is not the employer of the local officers, employees, and officials targeted by SB 4. The State was acting as a sovereign, not an employer, when it passed SB 4. The State also cites article V, § 23 of the Texas Constitution, applicable to sheriffs, which notes that their "duties" shall be "prescribed by the Legislature." But sheriffs are elected county officials, not state employees, and statutorily prescribing their duties, on the one hand, and regulating their speech, on the other, are two very different things. This provision does not trump the First Amendment.
1. Overbreadth analysis
In a facial challenge to the overbreadth of a law, the Court's task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Village of
Hoffman Estates, 455 U.S. at 494. In doing so, the Court must determine what the statute covers and whether it reaches too far. United States v. Stevens, 559 U.S. at 474 (2010).
SB 4 prohibits endorsement of a policy, but does not define "endorse." The State could
have defined the term, but it did not. Precisely what it means to "endorse" a policy and what type

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of conduct could constitute an endorsement is not entirely clear. The State cites one Texas case,
In re Hecht, 213 S.W.3d 547 (2006), for the proposition that "endorse" could mean "authorize." But the Special Court of Review in the Hecht matter reached the opposite conclusion. Without reaching the First Amendment claim, the Court found a "substantial" difference between the
endorsement prohibition in the old Texas Code of Judicial Conduct and the authorization prohibition in the new Texas Code. The Court explained that until 1974, there was no Code of Judicial Conduct in Texas. In 1974, the Texas Supreme Court enacted the initial Code of Judicial
Conduct, which contained an "endorsement" prohibition. In 1976, the Texas Supreme Court
removed the endorsement prohibition from the Code. In 1990, the Texas Supreme Court
amended the Code to include an "authorization" provision to "protect cover" for judges. k. at
560-62. After distinguishing the two provisions, the Court admonished the commission for
conflating the two:
In effect, the commission has reinserted the heretofore rejected "endorsement"
prohibition into Canon 5(2), thereby recasting the meaning of the "authorization" provision. In so doing, the commission has entirely ignored, if not dismissed, the importance ofthe pivotal term "authorized" in its pleadings, its evidence, and its
arguments.
[I]f the Supreme Court had intended by its 1990 amendments to reinstate the 1974 "endorsement" prohibition, it would have done so, but it did not. Instead, it used substantially different language by adding the "authorization" provision. We conclude the Texas Supreme Court intended for the 1990 amendment inserting the "authorization" provision into the Canon governing political activity to effect a substantial change, not simply a technical refinement, from the "endorsement" prohibition. In re Hecht, 213 S.W.3d at 564-565. Ultimately, the question in the Hecht matter was whether
the justice "authorized the public use of his name and title to endorse his close friend, ... a
candidate for public office." Id. at 560. The Court found that under the authorization provision,
and "under the circumstances of [that] case," endorse (as applied to the justice's conduct) meant
more than spoken praise. At the same time, the Court acknowledged the many different

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meanings that the term could have under different circumstances and under different codes of conduct, including: support, approval, request, appeal, or announce, either orally or in writing.
id. at 571-74. To the extent that dictionaries provide guidance, "endorse" in the Merriam-Webster
- Dictionary means "to approve openly endorse an idea; to express support or approval of
publicly and definitely; to recommend."45 In the Oxford Dictionary, "endorse" means to "declare one's public approval or support of."46 Thus, "endorse" could mean a recommendation,
suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is
generally conveyed openly or publicly. Section 752.0565(b), the "removal from office" provision in SB 4, expressly states that
evidence of punishable conduct includes a statement by the public officer. And the State made
clear during oral argument that "there is an ongoing debate in this country about federal immigration law, how it should be enforced, who it should be enforced against ... [and] Senate
Bill 4 was passed specifically in response to a number of Texas localities expressing their will
..". Tr. 103 :4-5; 106:3-5 (emphasis added). Of course a statement or expression may be written or oral. And there are no time, place,
or manner restrictions in SB 4. Thus, any written or oral statement at any time, in any place, and in any manner could be prohibited. For example, making statements during openlpublic or closed/private meetings could be prohibited. Making statements to a newspaper could be prohibited. Making statements to constituents could be prohibited. Making statements during
campaigns could be also prohibited. Thus, engaging in various forms of protected speech is
clearly sanctionable under SB 4.
45https://www.merriam-webster.com/dictionary/endorse 46https://en.oxforddictionaries.com/definition/endorse
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SB 4 may even reach mere gestures. As the author of SB 4 noted, a "wink, wink" or a nod could be construed as an endorsement.47 Or simply standing in support of a group such as MALDEF or LULAC when that group is making a public statement against SB 4 or in support of the type of local policies that it bans.48 SB 4's author apparently believes that a city, county, or
campus "culture" or "DNA" that is viewed as "hostile" to immigration enforcement could be construed as an endorsement.49 There is a myriad of possible scenarios that could lead to
punishment under SB 4, and these examples indicate the breadth and scope of the endorsement
prohibition.
When construed in context with related provisions in SB 4, the scope of the endorsement prohibition expands even further. First, it imposes a burden on a long list of identified speakers, each of whom will need to self-censor their speech or face punishment: any governing body of a
municipality, county, or special district or authority; any municipal police department; any
campus police department; any officer of a division, department, or other body that is part of a municipality, county, or special district or authority; any employee of a division, department, or other body that is part of a municipality, county, or special district or authority; and any local
elected official including any sheriff, municipal attorney, county attorney, district attorney, or criminal district attorney. Compare Tex. Gov't Code § 752.05 1(5), 752.053(a)(1) and Erznoznik
47The State has noted that undefined statutory terms should be given fair meaning in accord with
the manifest intent ofthe lawmakers. The manifest intent ofthe lawmakers, as described by SB 4's
author, was to make the endorsement prohibition broad and sweeping. 48Although the law is not yet in effect, the State already targeted and attempted to sue many local
officials, MALDEF, and LULAC based at least in part on their public statements of disagreement with SB 4 mandates, which the State perceives as "hostile." See Docket no. 23, pp. 2-5, First Amended Complaint, State of Texas v. Travis County, et. al., Civil Action No. l:17-CV-425-SS (W.D. Tex. 2017).
49The Court will not try to explain what the author of SB 4 meant by "culture" or "DNA," but is simply referring to his statements to reflect the Legislature's overreach.
42

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v. City ofJacksonville, 422 U.S. 215, 217 (1975) (overbroad ordinance applied to "all persons
employed by or connected with drive-in theaters, [thus] the owners and operators [were] faced with an unwelcome choice: to avoid prosecution of themselves and their employees they [had to] either restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable").
Second, SB 4 targets speech that is not content neutral or unprotected under the First
Amendment. Local governmental policy on the enforcement of immigration laws is a matter of
legitimate public concern. SB 4 broadly defines "policy" to encompass a formal, written rule,
order, ordinance, or policy and an informal, unwritten policy. If a county, municipal, or campus official, employee, or officer makes any statement or expression or engages in any type of
conduct at any time, in any place, or in any manner that could evince approval, support, or favor for a policy that prohibits or materially limits the enforcement of immigration laws, he or she will be subject to the penalty provisions in SB 4. The regulated speech is by no means content neutral.5° SB 4 permits speech on one side of the immigration policy debate, but not the other. A person who favors, supports, or recommends a policy that prohibits or materially limits
the enforcement of immigration laws cannot express his/her ideas, thoughts, views, and beliefs without the real threat of punishment. But those who disfavor the same policy are not targeted by
SB 4 and may freely speak about their feelings, thoughts, views, and beliefs. The First
Amendment was meant to protect against this type of viewpoint discrimination. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content." Erznoznik, 422 U.S. at 215 (1975)
50"Overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner." Broadrick, 413 U.S. at 614.
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(quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)); see also Stevens, 559 U.s. at 468.
When a statutory provision explicitly regulates expression based on content, the provision is "presumptively invalid, and the Government bears the burden to rebut that presumption." Stevens, 559 U.S. at 468 (quoting United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000)). The State's meager effort to defend the endorsement ban rings hollow. The State has not offered any viable suggestions as to how the endorsement ban could be narrowly construed and applied in a constitutional manner. The endorsement prohibition was intended to be sweeping in scope and breadth and it is not readily susceptible to a narrow or limiting
construction.51 As the author of SB 4 stated, "[w]e get there through different ways." The
Legislature could have heeded the warnings and drafted SB 4 with more precision, but it did not. See Erznoznik, 422 U.S. at 217-18 ("Where First Amendment freedoms are at stake we have
repeatedly emphasized that precision of drafting and clarity ofpurpose are essential.").
Assuming arguendo that the Legislature had legitimate goals for immigration policy when drafting SB 4, banning constitutionally protected speech just because of its message is not one of
them. 52 The overbreadth of SB 4s endorsement prohibition is substantial on its face and the
threat or deterrence to constitutionally protected speech is real. The Court finds that Plaintiffs are likely to succeed on their overbreadth challenge under the First Amendment.
2. Vagueness analysis
For the sake of completeness, the Court also addresses vagueness of the endorsement
51Stevens, 559 U.S. at 481 ("[T]his Court may impose a limiting construction on a statute only if
it is 'readily susceptible' to such a construction.") (quoting Reno v. ACLU, 521 U.S. 844, 884 (1997)). 521n Stevens, the Supreme Court found that animal cruelty is a legitimate concern, but a law
banning portrayals or depictions was substantially overbroad in violation of the First Amendment. Id.
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prohibition which overlaps to some extent with the Court's due process vagueness analysis in the
Fourteenth Amendment analysis.53 The Court has determined that the endorsement prohibition
reaches a substantial amount of constitutionally protected conduct; however, even if it did not, it
may still be void for vagueness if it fails to establish a standard that provides fair notice and
sufficiently guards against arbitrary enforcement. The vagueness of an enactment makes a facial
challenge appropriate. Chicago v. Morales, 527 U.S. 41, 55 (1999).
The Supreme Court in Hoffman Estates explained the standards for evaluating vagueness:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory enforcement is
to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory applications.
Hoffman Estates, 455 U.S. at 498 (quoting Grayned v. City ofRockford, 408 U.S. 104, 108-09
(1972)). The Court went on to explain certain variables that impact the Court's application of this
standard:
The degree of vagueness that the Constitution tolerates as well as the relative importance of fair notice and fair enforcement depends in part on the nature of
the enactment.
The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively
less severe. And the Court has recognized that a scienter requirement may
mitigate a law's vagueness, especially with respect to the adequacy of notice to
the complainant that his conduct is proscribed.
Finally, perhaps the most important factor affecting the clarity that the
Constitution demands of a law is whether it threatens to inhibit the exercise of
constitutionally protected rights. If, for example, the law interferes with the right
of free speech or of association, a more stringent vagueness test should apply.
53The Court only addresses the vagueness of "endorse," but the endorsement prohibition is tied to other language, such as "materially limit," which the Court also finds impermissibly vague. See infra.
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Id. at 498-99. A more stringent analysis applies herein, leaving less tolerance for vagueness, because
the endorsement prohibition threatens to inhibit the exercise of First Amendment rights and the
punishment provisions triggered by an endorsement violation are harsh and quasi-criminal in
nature. There are civil penalties per violation, up to $25,500.00, and each day of a "continuing
violation" constitutes a separate violation. And the Attorney General "shall file" a petition
against a public officer ... "if presented with evidence, including evidence of a statement by the
public officer," establishing probable grounds that the public officer violated [the endorsement
prohibition. If that public officer "is found guilty as charged, the court shall enter judgment removing the person from office." Tex. Gov't Code § 752.056, 752.0565. The civil penalties
require "intentional" conduct; the removal from office provisions have no scienter requirement. As discussed above, SB 4 prohibits endorsement of a policy, but does not define the type
of conduct that would constitute an endorsement. The State could have defined the term "endorse," but it did not. Even the Bill's author struggled to explain the term when questioned about it. Thus, what it means to "endorse" a policy and what type of conduct could constitute an endorsement remains vague, ambiguous, and open to very different interpretations. The only guidance SB 4 gives is in the "removal from office" provision, which states that evidence of
punishable conduct includes a statement by the public officer. But this language expands, rather than limits, sanctionable conduct and thus does not cure the vagueness problem with the
endorsement prohibition. A person of ordinary intelligence has no guidance whatsoever as to
what is prohibited and the endorsement provision could easily "trap the innocent by not
54"The government offends the First Amendment when it imposes financial burdens on certain
speakers based on the content oftheir expression." Rosenberger v. Rector and Visitors ofthe University of
Virginia, 515 U.S. 819, 828 (1995).

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providing fair warning." Id. at 498. At most, it tells local officials to be wary of any conduct that could be vaguely construed as an "endorsement" on the wrong side of the immigration policy
debate. The endorsement prohibition, on its face, leads to arbitrary and discriminatory
enforcement. Even though a person of ordinary intelligence has no guidance whatsoever as to what is prohibited, § 752.05 5 allows "any citizen" residing in the jurisdiction of a local entity to
file a complaint alleging that the endorsement prohibition has been violated. This will lead directly to review by the Attorney General. And while civil penalties require an "intentional"
violation, there is still no guidance as to what type of conduct would constitute an intentional
violation. Just as the legislators struggled to define "endorse," those enforcing the provision will engage in the same subjective interpretation. Prosecution to remove a local official from office
will end up being selective, arbitrary, discriminatory, and in violation of First Amendment rights.
The Court finds that Plaintiffs are likely to succeed on their vagueness challenge to the endorsement prohibition.
3. Viewpoint discrimination Despite the vagueness and overbreadth of the endorsement prohibition, SB 4 makes one thing quite clear one viewpoint on local immigration policy is banned and the opposite viewpoint is permitted. A person who "endorses" a policy that prohibits or materially limits the
enforcement of immigration laws cannot express his/her ideas, thoughts, views, and beliefs without the real threat of punishment. But those who criticize, oppose, or speak out against a policy that prohibits or materially limits the enforcement of immigration laws are not targeted by
SB 4 and may freely speak about their feelings, thoughts, views, and beliefs. This is the epitome
of viewpoint discrimination.
47

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"It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 828; see also Los Angeles City
Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (the First Amendment "forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of
others"); Erznoznik, 422 U.S. at 215 (the government cannot use its power to restrict expression
"because of its message, its ideas, its subject matter, or its content"); Stevens, 559 U.S. at 468 (same). The government may disagree with certain viewpoints, but they cannot ban them just because they are inconsistent with the view that the government seeks to promote. As the
Supreme Court explained in Rosenberger: When the government targets not subject matter, but particular views
taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of
content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or
perspective ofthe speaker is the rationale for the restriction.
515 U.S. at 829. SB 4 clearly targets and seeks to punish speakers based on their viewpoint on
local immigration enforcement policy. "Discrimination against speech because of its message is
presumed to be unconstitutional." Id. at 828. The Court finds that Plaintiffs are likely to succeed on their viewpoint discrimination challenge under the First Amendment.
Fourteenth Amendment Vagueness Plaintiffs argue that SB 4 Sections 1.01, 2.01, and 5.02, Tex. Gov't Code §
752.053(a)(1), (a)(2), and (b); Tex. Crim. Proc. Code Art. 2.25 1(a); and Tex. Pen. Code § 39.07, should be enjoined because they violate the Fourteenth Amendment's due process clause.55 The provisions that Plaintiffs argue are unconstitutionally vague prohibit localities from adopting a
"pattern or practice" that "materially limit{s]" the enforcement of immigration laws, or that
55Docket nos. 24-1 at 29-37; 56-1 at 27-31; 150 at 46-47; 154 at 23-25.
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"materially limit[s]" peace officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary[.]" Docket no. 24-1 at 3 1-36. Plaintiffs also argue that SB 4 defines the term "policy" in a way that "is circular and confusing"; requires localities to allow federal immigration officers to enter and "conduct enforcement activities ... to enforce federal immigration laws" in local jails without defining what "activities" the localities must permit; and permits localities to prohibit their officers from assisting or cooperating with federal immigration
officers if the assistance of cooperation occurs at a "place of worship" without defining the term "place of worship." Docket no. 56-1 at 28-29. Plaintiffs further argue that SB 4's mandate that
localities fulfill all ICE detainer requests is unconstitutionally vague because it fails to define the "immigration detainer request" with which localities must comply, or the "lawful immigration status" that can excuse compliance. Docket no. 24-1 at 36-37.
Defendants argue first that, because Plaintiffs assert a facial, preenforcement challenge to
the validity of these provisions of SB 4, they are obligated to "show that the challenged provisions are invalid in all applications." Docket no. 91 at 52. Since Plaintiffs acknowledge that some of their policies would be invalidated under the provisions of SB 4 that they argue are
unconstitutionally vague, Defendants argue that Plaintiffs cannot show that these provisions are "impermissibly vague in all [their} applications, including [their application to the party bringing the vagueness challenge." Docket no. 91 at 53-54 (quoting Clark, 582 F.3d at 612-13).
Defendants also argue that the terms that Plaintiffs challenge"pattem or practice," "materially
limit," "assisting or cooperating," "reasonable or necessary," "policy," enforcement "activities,"
"immigration detainer request," and "lawful immigration status"are not vague because they
are used in a host of other legal authorities and have specific contextual meaning within SB 4.
Docket no. 91 at 56-59.

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A. Due Process Protections Against Vagueness
Section 1 of the Fourteenth Amendment provides that no state may "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const., amdt. 14, § 1. The "first essential of due process of law" is that "laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (applying Fifth Amendment due process; quoting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926) (discussing Fourteenth Amendment due process)); see also Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). "Vague laws offend several important
values": they may "trap the innocent by not providing fair warning" of what is prohibited; they
"impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"; and, when they "abut[] upon sensitive areas of basic First Amendment freedoms,"
they "inhibit the exercise of those freedoms" because "[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone[.]" Grayned, 408 U.S. at 109 (internal quotation
-, marks omitted); see also Beckles v. United States, U.S. 137 S. Ct. 886, 894 (2017) (laws
that "regulate persons or entities" must be "sufficiently clear that those enforcing the law do not act in an arbitrary or discriminatory way.")
Courts have "expressed greater tolerance of enactments" that impose only civil penalties,
rather than those imposing criminal penalties or those "which can be characterized as quasicriminal[,]" such as "significant civil and administrative penalties, including fines and license revocation[.]" Women's Med Ctr. ofiVw. Houston v. Bell, 248 F.3d 411, 422 (5th Cir. 2001).
Similarly, the vagueness of a prohibition may be mitigated by a scienter requirement. Roark & Hardee LP v. City ofAustin, 522 F.3d 533, 552 (5th Cir. 2008). "[A] plaintiff who engages in

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some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Roark & Hardee LP, 522 F.3d at 548; see also United States v.
Westbrooks, 858 F.3d 317, 325 (5th Cir. 2017) (discussing Johnson v. United States, 135 S. Ct. 2551 (2015)).
B. Applicable Standard
The Court addresses the vagueness of the "endorse" prohibition separately above, because the prohibition, in addition to raising due process concerns, inhibits the exercise of free
speech. As to the other provisions, the Court begins by identifying the standard that governs the vagueness inquiry. The provisions being challenged are enforced by criminal and quasi-criminal
penalties. SB 4's mandate that localities fulfill all ICE detainer requests is enforced by actual
criminal penalties, SB 4 Section 5.02, Tex. Pen. Code §39.07, and the Court agrees with
Plaintiffs that the penalties that enforce SB 4's prohibition against adoption or enforcement of
policies that "materially limit" immigration law enforcement are severe enough to qualify as
"quasi-criminal." These include civil penalties of between $1,000 and $25,500 per violation and removal from office of local elected and appointed officials found to violate the prohibition. SB 4 Section 1.01, Tex. Gov't Code § 752.056 and 752.0565. Compare Bell, 248 F.3d at 414-15, 422 (loss of facility license and civil penalties of up to $2,500 per day were "significant civil and
administrative penalties ... which can be characterized as quasi-criminal"). The Court also notes
that, while a criminal conviction for violation of SB 4's detainer compliance mandate and civil penalties for the adoption, endorsement, or enforcement of policies that materially limit
immigration enforcement are subject to a scienter requirement, the removal from office penalty is not, and the scienter requirement that applies to the criminal and civil penalties does not
require notice of proscribed conduct, but merely that the conduct that violated the prohibition be,
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respectively, "intentional[]" or "knowing[]." SB 4 Sections 1.01 and 5.02, Tex. Gov't Code § 752.056(a) and 752.0565 (a); Tex. Pen. Code § 39.07. Since all of the provisions challenged on vagueness grounds are enforced by either criminal or quasi-criminal penalties, they should be invalidated as unconstitutionally vague unless the required or prohibited conduct is defined "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Women 's Med. Ctr. ofNw. Houston, 248 F.3d at 422.
C. Standing to Assert Vagueness The Court next considers Defendants' argument that, because Plaintiffs acknowledge that
some oftheir current policies would be invalid under SB 4, they have "engage[d] in some conduct that is clearly proscribed" by SB 4 and therefore "cannot complain of the vagueness of the law as applied to the conduct of others." Westbrooks, 858 F.3d at 325; Holder v.
Humanitarian Law Project, 561 U.S. 1, 18 (2010) (discussing vagueness under the Fifth Amendment due process clause). The rationale for this limitation is simple: an individual who is punished for conduct that clearly violated a prohibition has no standing to complain about any
marginal uncertainty about the reach of the prohibition as applied to others. Parker v. Levy, 417 U.S. 733, 756 (1974) (no authority supports claim "that one who has received fair warning of the criminality ofhis own conduct from the statute in question is nonetheless entitled to attack it
because the language would not give similar fair warning with respect to other conduct"); see
also, e.g. United States v. Strunk, 551 Fed. Appx. 245, 246 (5th Cir. 2014) (unpublished).
Plaintiffs, however, have not engaged in conduct that is prohibited by SB 4 because SB 4, which
has not yet taken effect, does not yet prohibit or require anything of anyone. Rather, Defendants argue that Plaintiffs lack standing to obtain a ruling on the vagueness of SB 4 because policies
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that they in the past have adopted and enforced would have violated SB 4 had it been in effect at the time they did so. This argument would warp the sensible limit on standing to bring vagueness
challenges into a bizarre prohibition barring a plaintiff from asserting a vagueness challenge if
they had ever engaged in conduct that could have clearly violated a later enacted restriction. In this case, the basis for Plaintiffs' standing to assert a vagueness challenge is not that
they have been punished for violating a vague prohibition, but that, prospectively, they will be
required to revise their departmental policies to conform to a new set of vague requirements,
under a statutory regime that punishes noncompliant local officials with criminal and quasicriminal penalties. In the event that SB 4 takes effect, Plaintiffs may elect to refrain from adopting policies that clearly violate SB 4's prohibition against limiting immigration enforcement, or from enforcing existing policies that clearly do so. But Plaintiffs can hardly refrain altogether from adopting or enforcing any policy regulating their police departments. It is on that basis that they have a due process interest in determining the contours of the prohibitions
that SB 4 imposes, in order to have fair notice of whether any particular policy they might consider will subject them to SB 4's penalties.56 And, as Plaintiffs note, SB 4 puts them "in a bind." On one hand, the adoption or enforcement of local policies that the State deems to
"materially limit" immigration enforcement, or noncompliance with ICE detainer requests that
the State determines to violate SB 4, will subject Plaintiffs to SB 4's criminal and quasi-criminal
56Roark & Hardee LP, 522 F.3d at 543 (all Plaintiff bar owners had standing where "some have been charged under the ordinance and all. . . face the real potential of immediate criminal
prosecution"); Int'l Soc. for Krishna Consciousness ofAtlanta v. Eaves, 601 F.2d 809, 819 (5th Cir. 1979)
(preenforcement vagueness challenge was appropriate where "we know that the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct his affairs"); Diamond v. Charles, 476 U.S. 54, 64 (1986) ("conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic 'case' or 'controversy"); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1360 (10th Cir. 1981) ("No criminal prosecution. . . has commenced as a result of the
enforcement of the Act. Nevertheless, the court record clearly shows that plaintiffs face real and genuine threats of prosecution under the Act so as to show the existence of an Article III case or controversy.");
see also Steffel v. Thompson, 415 U.S. 452, 475 (1974).
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penalties. But localities who err too far on the side of caution face risks as well: They may become liable for Fourth Amendment or other violations for wrongfully carrying out ICE detainer requests not required by SB 4 and not supported by probable cause of a crime, or for failing to adopt policies not prohibited by SB 4 that would have deterred officer misconduct. Docket no. 24-1 at 31. Nor is Plaintiffs' due process interest extinguished merely because some conduct can be imagined that would clearly violate the vague prohibition. Johnson, 135 S. Ct. 2560-6 1 ("although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp"; the "supposed requirement of vagueness in all applications is not a requirement at all, but a tautology[.]").
D. Analysis
The Court therefore proceeds to the merits of Plaintiffs' vagueness claims. As noted above, the provisions of SB 4 that Plaintiffs challenge may be subject to invalidation on vagueness grounds for either one of two independent reasons: First, if they fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct they prohibit; and second, if they authorize or even encourage arbitrary and discriminatory enforcement. United States v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001) (citing Chicago v. Morales, 527 U.S. 41, 56 (1999)); Roark, 522 F.3d at 547. The Court considers each question in turn.
1. "Materially limit" is Vague on Its Face To satisfy due process, the statute need not "delineate the exact actions" that a party must
take to avoid liability; "[o]nly a reasonable degree of certainty is required." Roark, 522 F.3d at
552-53; Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952) ("few words possess the
precision of mathematical symbols, most statutes must deal with untold and unforeseen
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variations in factual situations, and the practical necessities of discharging the business of
government inevitably limit the specificity with which legislators can spell out prohibitions.").
The Court agrees with Plaintiffs that SB 4's prohibition against local policies that "materially limit" immigration enforcement falls short of this standard. To begin with, the policies and
practices implemented by localities inescapably must allocate finite and often scarce resources among departmental priorities, and policies or practices that might appear to have nothing to do with immigration enforcement may nonetheless place substantial limits on officers' participation in federal immigration enforcement efforts simply by allocating their time and resources
elsewhere. Relying upon dictionary definitions of "material," Defendants argue that it narrows the scope of prohibited limits on immigration enforcement by specifying that the prohibited limits are only those that are "substantial' as opposed to insignificant" and those with "a 'logical connection' between the action and the ... effect on enforcement of immigration law[.]" Docket no. 91 at 57 (quoting Webster's New International Dictionary 1392 (3d ed. 2002) and Black's Law Dictionary 1124 (10th ed. 2014)). Therefore, Defendants argue, "simple, day-to-day decision[s] regarding how a city or county allocates its scarce police resources' are not a 'material[] limit' on the enforcement of immigration law" because such limits are only those that
"address[] immigration law specifically, as opposed to routine police matters, and either prohibit[] immigration-law enforcement specifically or significantly limit[] that activity from its otherwise-prevailing scope." Docket no. 91 at 57 (quoting docket no. 24-1 at 33).
Defendant's limiting definitions of the prohibition's reach, however, are contrary to the text of the statute. SB 4 defines "policy" broadly to include both "formal written rule[sJ" as well as "informal, unwritten policy[,]" and SB 4's prohibition against material limitations on
immigration enforcement goes even further, also prohibiting any "pattern or practice [that

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materially 1imit[s the enforcement of immigration laws." SB 4, Tex. Gov't Code § 752.05 1(6); 752.053(a)(2). An informal, unwritten policy, or a pattern or practice of allocating enforcement
resources, does not "address" immigration law enforcement, or any other topic, except in terms
of its impact. In the context of an allocation of finite, scarce resources, any decision about the resources expended on routine police matters also impacts the allocation of resources in at least
some other areas. This prohibition leaves localities throughout Texas uncertain about whether they are required to allow their officers to patrol only border regions or areas where day laborers are active, respond to immigration-related tips, offer backup services to ICE enforcement teams, or reallocate resources to fulfill ICE requests for enforcement assistance. Compare, e.g., docket no. 24-5 at ¶J 12-14; United States v. Williams, 553 U.S. 285, 306 (2008) ("What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what
that fact is.")
Defendants' definition of material limitations on immigration enforcement only serves to
establish additional subjective standards and raise more questions, such as when a limitation
crosses from being "insignificant" to "substantial," or what the "otherwise-prevailing scope" of
local immigration enforcement is that may not be reduced. Compare Johnson, 135 S. Ct. at 2561 (standard based on deviation from "an idealized ordinary case" was vague because it "offers significantly less predictability than one '[t]hat deals with the actual, not with an imaginary
condition other than the facts." (quoting International Harvester Co. ofAmerica v. Kentucky,
234 U.S. 216, 223 (1914)); Williams, 553 U.S. at 306 ("we have struck down statutes that tied criminal culpability to ... wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings."). And given the absence of a comprehensible standard for
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policies or practices that "materially limit" immigration enforcement within the context of SB 4,
it is irrelevant that similar language has been used to establish enforceable standards in the
context of other statutory regimes or legal authorities. Johnson, 135 S. Ct. at 2561 (finding vagueness even though "dozens of federal and state criminal laws use [similar] terms").
These due process problems are compounded because, in addition to failing to provide
fair notice of the prohibited conduct, these provisions "furnish[] a convenient tool for 'harsh and
discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure[.]" Kolender v. Lawson, 461 U.S. 352, 360 (1983) (quoting Papachristou
v. City ofJacksonville, 405 U.S. 156, 170 (1972)). The Court therefore concludes that Plaintiffs are likely to succeed on their claims that the portions of Section 1.01 that prohibit the adoption, enforcement, or endorsement of "a policy under which the entity or department ... materially limits the enforcement of immigration laws" and prohibits any "pattern or practice ... [that] materially limit[s] the enforcement of immigration laws" Tex. Gov't Code § 752.053(a)(1) and
(2) are unconstitutionally vague because they fail to provide those to whom they apply a reasonable opportunity to understand the conduct being prohibited.
The Court reaches these conclusions based on the text of SB 4 alone. Matal v. Tam, 137
S. Ct. 1744, 1756 (2017); United States v. Ramos, 537 F.3d 439, 461-62 (5th Cir. 2008).
However, the Court also notes that its vagueness concernsparticularly the concern about targeted enforcement against certain disfavored localitiesare reinforced by both the statements of SB 4's supporters throughout its consideration, and by the State's actions since SB 4's enactment. In a Twitter post written days before SB 4 was reported out of committee and received its first vote in the Senate, Governor Greg Abbott linked his designation of "banning
sanctuary cities" as an emergency item with a promise that "Texas will hammer Travis County."
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Docket no. 57-14 at 19. Governor Abbott made similar comments during a radio interview days
later, in which he boasted of "putting the hammer down" on Austin and Travis County, accused Travis County's sheriff of "breaching her oath of office ... breaching the rule of law[,]"57 and stated that "I'm seeking legislation ... passed out of a Senate committee yesterday," under which "[wJe are going to be asserting fines" and "[w]e're going to be seeking court orders that could lead to putting these people behind bars, the officials who are violating their oath of office."58 Docket no. 57-14 at 16. Plaintiffs have also submitted evidence that, following Sheriff Hernandez's announcement of her ICE detainer policy, Governor Abbott announced his decision to withhold $1.5 million of previously awarded and allocated grant funds that had been designated for "programs that were designed for victims of family violence, veterans, and other at-risk communities." Docket no. 35-2 at ¶ 10. Thereafter, Plaintiffs allege, Governor Abbott
"directed his office to refuse all future Travis County grant applications[,]" including those unrelated to immigration matters, and following that directive, "Travis County's new grant applications for the 2017-2018 grant cycle have also been denied." Docket no. 35-2 at ¶ 11. During SB 4's floor debate, its sponsor, Senator Charles Perry, described the Bill's "endorsement" prohibition as targeting jurisdictions that "endorse, enforce, support, identify with
57These statements followed the announcement of Travis County Sheriff Sally Flernandez on January 20, 2017, that, effective February 1, 2017, she would "honor an ICE detainer request if the request is accompanied by ajudicial warrant or court order for continued detention; [or] ifthe individual is convicted of certain felonies and if under [her] assessment or belief it is appropriate to hold the individual to ensure that justice is served." Docket no. 35-2 at ¶j 8-9.
58There is some indication in the record that state lawmakers may not have been the only ones to retaliate against Austin and Travis County for Sheriff I{ernandez's policies. During a March 2017 hearing before United States Magistrate Judge Andrew Austin, ICE Deportation Officer Laron Bryant testified that he was aware that ICE had carried out enforcement raids in Austin as "a result of the sheriff's new policy[.]" Docket no. 57-17 at 26. Magistrate Judge Austin went on to note that, based on a briefing that an ICE supervisor had delivered to another magistrate judge, he understood that the ICE raids were prompted in part because "meetings that occurred between the [ICE] field office director and the sheriff didn't go very well[,]" although Agent Bryant testified that he was not aware of this, agreeing with Magistrate Judge Austin's comment that such information would be "above [his] pay grade." Docket no. 57-17 at 26-27.

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{where] it becomes part of our DNA, our culture to endorse" prohibitions or limitations on
local participation in immigration enforcement. Docket no. 56-5 at 87. Senator Perry responded to a hypothetical scenario about SB 4's application to a sheriff or police chief who submitted an editorial to a newspaper arguing that participation by local police in federal immigration enforcement efforts would be harmful to local law enforcement effectiveness, stating that the editorial would subject the official to removal from office under SB 4 because it would "creat[e]
a culture of contempt and noncompliance." Docket no. 56-5 at 87-88. And, hours after Governor
Abbott signed SB 4 into law, Texas preemptively filed a lawsuit against several localities and civil rights groups, who were targeted by the State's lawsuit on the basis that they were "publicly hostile to cooperation with federal immigration enforcement." Texas v. Travis County et al., l:17-cv-425-SS, docket no. 1 at 3-5.
The fact that SB 4's passage was motivated in part by a political feud between local and
state elected leaders, or that SB 4's author made sweeping characterizations of SB 4's purpose and effect during a heated floor debate, does not form the basis for the Court's ruling on
vagueness. The Court recites this evidence only because it coincides with the conclusions that
the Court has reached based on the text of SB 4: That SB 4's prohibition on policies or practices that "materially limit" enforcement of immigration laws is unconstitutionally vague because it ascribes criminal and quasi-criminal penalties based upon violations of an inscrutable standard,
in a manner that invites arbitrary and discriminatory enforcement against disfavored localities. The Court therefore concludes that Plaintiffs are likely to succeed on their vagueness challenge to the "materially limit" provision in SB 4.
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2. Remaining Provisions
SB 4's vague and indeterminate "materially limit" prohibition contrasts with other provisions of the statute. The "materially limit" prohibition raises difficult questions for local
policymakers regarding the line at which a limitation goes from being insubstantial to being
"material" and thus prohibited. In contrast, SB 4's prohibition against local policies that "prohibit ... the enforcement of immigration laws" presents no such blurred lines. And the Court does not agree with Plaintiffs' argument that the reference to "immigration laws" is itself
unconstitutionally vague: SB 4 supplies a definition for the term "immigration laws," which, though sweeping, is clear.59 Likewise, the phrase "pattern or practice," though not defined in SB 4, has a settled legal meaning in other contexts, and at this stage the Court finds nothing about
the structure of SB 4 or its use within SB 4's context suggests that those meanings could not be
ascribed to SB 4 by courts interpreting its reach.6° Similarly, the Court finds at this stage that the "materially limit" prohibition at Tex. Gov't Code § 752.053(a) contrasts with the enumerated list
of specific prohibited policies set forth in Section 752.053(b).6' These include SB 4's
prohibitions against local entities and campus police departments preventing their officers from
inquiring into the immigration status of a person under a lawful detention or under arrest; sharing
the information they obtain through those inquiries with ICE or other localities; or permitting
59SB 4 Section 1.01, Tex. Gov't Code § 752.051(2) (defining "immigration laws" to mean "the laws of this state or federal law relating to aliens, immigrants, or immigration, including the [INA].").
60Docket no. 91 at 57; Duvall v. Dallas County, Tex., 631 F.3d 203, 208 (5th Cir. 2011) (discussing the "Monell test" for municipal liability under 42 U.S.C. § 1983, which permits liability on the basis of, inter alia, acts that are "sufficiently extended or pervasive. . . to prove an intended condition or practice.").
61However, the Court does find that the enforcement provision in Section 752.053(b) is preempted, as discussed above, and that the prohibition against policies that "materially limit" such enumerated practices is likely unconstitutional on vagueness grounds for the reasons set forth above.

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ICE to enter and conduct enforcement activities in jails. SB 4 Section 1.01, Tex. Gov't Code § 752.053(b).62 At this stage, the Court cannot conclude that Plaintiffs have shown a likelihood of success on their remaining facial challenges to the vagueness of Section 752.053(a)(1)-(2) and (b). Finally, in light of the Court's finding, below, that SB 4's detainer compliance mandate provisions likely violate the Fourth Amendment and should be enjoined for that reason, the Court does not reach Plaintiff's vagueness arguments with respect to those provisions.
Fourth Amendment Plaintiffs assert Fourth Amendment challenges to several provisions of SB 4, and have sought preliminary injunctive relief to prevent those provisions from taking effect.63 These challenges are directed against language in Sections 1.01, 2.01, 5.02, and 6.01 of SB 4, Tex. Gov't Code § 752.053(b), Tex. Crim. Proc. Code Art. 2.13 and 2.25 1, and Tex. Pen. Code §
39.07, which, in pertinent part, require localities to allow peace officers and various other officials to ask arrested or detained individuals about their immigration status; require local entities to fulfill all ICE detainer requests; and enforce these requirements by imposing civil monetary penalties against local entities or campus police departments who limit immigration inquiries by their officers, removal from office against persons holding elective or appointed office who limit immigration inquiries by their officers, and criminal misdemeanor liability
against a sheriff, chief of police, constable, or a person who has primary authority for administering a jail who knowingly fails to comply with an ICE detainer request.
Plaintiffs argue enforcement of these provisions would violate the Fourth Amendment by compelling local officials to comply with ICE detainer requests in the absence of probable cause.
62As noted supra, the endorsement prohibition is addressed separately.
63Docketnos.31 atJ39-42;5l atj148-5l;96atj6l; l39atJ75-77; and l74at143.
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Plaintiffs further argue enforcement of these provisions would prohibit local and campus police
departments from adopting policies to prevent their officers from committing Fourth
Amendment violations in the course of inquiring into a detainees' immigration status.64
Defendants argue, as a preliminary matter, that Plaintiffs lack standing to assert the hypothetical
Fourth Amendment claims of othersi.e., persons who would potentially face unlawful
detention.65 Defendants also argue that Plaintiffs may not assert a facial Fourth Amendment challenge to these provisions because "SB4 undisputedly has at least some valid applications and the risk to Plaintiffs in complying with SB4 is minimal."66 Defendants further argue that Plaintiffs' Fourth Amendment claims will fail because probable cause to support local entities'
fulfillment of ICE detainer requests will be supplied by the detainer request forms and the accompanying ICE administrative warrants, and the immigration inquiry provisions of SB 4 merely require the sort of local cooperation that was approved by the Supreme Court in Arizona, 567 U.S. at 408-10. Defendants also argue that the immigration inquiry provision of SB 4,
Section 6.01, does not violate the Fourth Amendment because it would not authorize prolonging investigative stops to accommodate an immigration-status investigation, but "merely provides that local law enforcement agencies cannot prohibit such inquiries where they are otherwise consonant with the Fourth Amendment."67
64Docket nos. 24-1 at 39-43; 56-1 at 31-33; 77 at 41-44; 146 at 6-9; 148 at 7-9; 149 at 16-18; 151 at 20-24; 154 at 7-15.
65Docket no. 91 at 67. 66Docket no. 91 at 66. 67Docket no. 91 at 76.

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A. Standing The Court begins by considering a threshold question: whether Plaintiffs have standing to assert their Fourth Amendment claims. "As a general rule, 'Fourth Amendment rights are
personal, and may not be vicariously asserted." United States v. Escamilla, 852 F.3d 474, 485 (5th Cir. 2017) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). More broadly, standing to assert any claim requires that the claimant have a "personal stake in the outcome' of
th[ej litigation." Bd ofEd. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 241 n.5 (1968)
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In some cases, however, courts have recognized that government officials may have standing based on their "personal stake in the outcome" of litigation where they challenge laws that would compel them to violate their oath of office. Allen, 392 U.S. at 241 n.5; Baker v. Wade, 743 F.2d 236, 241 n.21 (5th Cir. 1984), on reh 'g, 769 F.2d 289 (5th Cir. 1985), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003).68 Defendants have not presented any authority to indicate that an official's interest in avoiding violations of her oath of office is any less compelling where the alleged oath-violating conduct involves infringement of constitutional rights that are personal to a third party.
However, an official's interest in abiding by her oath alone is not sufficient to establish the injury required for standing. Crane v. Johnson, 783 F.3d 244, 253 (5th Cir. 2015). Injury and
68 Baker, the Fifth Circuit reviewed a district court's judgment that Section 21.06 of the Texas
Penal Code, which criminalized "deviate sexual intercourse," was unconstitutional. After the Texas Attorney General, Mark White, declined to appeal the judgment, a county district attorney filed motions
to intervene and to set aside the judgment. A panel of the Fifth Circuit found that the county district attorney's Article III standing was established because he "is bound by his oath of office to enforce the State's laws" and "is also subject to a contempt citation should he violate the district court's mandate[,I" 743 F.2d at 241 n.2l, but found that his intervention was not proper under Fed. R. Civ. P. 24, id. at 243-
44, and therefore did not reach the underlying constitutional question. The en banc Fifth Circuit reversed, holding that the county district attorney did have standing and that his intervention was proper, 769 F.2d
at 291-92, and that the Texas statute criminalizing same-sex intercourse was constitutional, id at 292. The
en banc Court's constitutional ruling was later abrogated by the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003).
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standing are lacking where a legal requirement to violate one's oath is enforced only by "possible future" sanctions against the official. Crane, 783 F.3d at 254-55 (standing requires injury that is "concrete and particularized" and "actual or imminent, not conjectural or
hypothetical"; a threatened future injury satisfies this requirement only if it is "certainly impending"; "[a]llegations of possible future injury [are] not sufficient." (internal quotation marks omitted)). For instance, in Crane, an ICE officer who believed that the exercise of
discretion permitted under the Deferred Action for Childhood Arrivals (DACA) program
violated his oath to uphold the laws of the United States had not shown a sufficient injury to establish his standing when he showed that, after refusing to follow a superior's instruction to defer action, he received "a non-disciplinary letter admonishing him for refusing to follow his
supervisor's instruction." Crane, 783 F.3d at 254 (noting that "Plaintiffs have provided no evidence that any agent has been sanctioned or is threatened with employment sanctions for detaining an alien and refusing to grant deferred action under DACA."); see also Texas v. United States, 809 F.3d 134, 171 n.126 (5th Cir. 2015), as revised (Nov. 25, 2015) (summarizing the standing analysis in Crane), aff'd by an equally divided Court, United States v. Texas, 136 S. Ct. 2271 (2016).
In this case, Plaintiffs have advanced several arguments, analyzed below, in support of their claim that SB 4 would compel them to violate their oaths of office by carrying out seizures in violation of the Fourth Amendment. SB 4 imposes severe penalties on local officials who, in violation of SB 4, refuse to fulfill what they believe to be unlawful requests for seizure by ICE, or who seek to deter Fourth Amendment violations by regulating their officers' inquiries into the immigration status of detainees. Those who fail to comply with SB 4's requirements face civil penalties between $1,000 and $25,500, removal from office, and criminal misdemeanor

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liability.69 Unlike the discretionary enforcement prioritization policy in Crane, SB 4 leaves Plaintiffs no discretion, but flatly mandates that they engage in conduct they believe to be unconstitutional. And unlike the non-disciplinary letter of admonishment or the possibility of
employment sanctions in Crane, SB 4's penalties for those who do not comply with its requirements are mandatory. The Court therefore finds that SB 4's mandates and penalties establish the standing of local officials who are subject to its requirements, including their standing to challenge the lawfulness of requirements that they believe violate the Fourth
Amendment. 1. Mandatory compliance with ICE immigration detainer requests
The Court now proceeds to consider whether Plaintiffs have shown a likelihood of success on the merits of their facial Fourth Amendment challenge to SB 4's detainer compliance
mandate and immigration status inquiry provisions. The Court notes at the outset that, in general, "a facial challenge is 'the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the [statute being challenged] would be valid[.]" Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Although Anderson and Salerno did not arise within the Fourth Amendment context, the same reasoning about the limited viability of facial challenges to statutory enactments applies in Fourth Amendment cases. See, e.g., City ofLos Angeles, Calif v.
-, Patel, U.S. 135 S. Ct. 2443, 2451 (2015). However, even though Plaintiffs' facial Fourth
Amendment challenge faces a difficult burden, such challenges "are not categorically barred or especially disfavored[,]" and "precedents demonstrate not only that facial challenges to statutes
69SB 4 Sections 1.01, 5.01, 5.02, Tex. Gov't Code § 752.056, 752.0565, Tex. Pen. Code § 39.07, Tex. Loc. Gov't Code § 87.031(a), (c).
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authorizing warrantless searches can be brought, but also that they can succeed." Patel, 135 S. Ct. at 2449, 51 (quoting Salerno, 481 U.S. at 745, collecting cases).
The Fourth Amendment, which applies to the states through the Fourteenth Amendment, "protects {t]he right of the people to be secure in their persons, houses, papers, and effects,
-, against unreasonable searches and seizures." Manuel v. City ofJoliet, ill., U.S. 137 5. Ct.
911, 917 (2017) (internal quotation marks omitted). To effect this protection, the Fourth
Amendment "establishes the minimum constitutional 'standards and procedures" that govern, inter alia, arrest and pretrial detention. Manuel, 137 5. Ct. at 917 (discussing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). The Fourth Amendment standard that governs in this context, which "represents a necessary accommodation between the individual's right to liberty and the state's duty to control crime[,]" is that "seizures are 'reasonable' only if based on probable cause to believe that the individual has committed a crime." Gerstein, 420 U.S. at 112; Manuel, 137 S. Ct. at 917 (quoting Bailey v. United States, 568 U.S. 186, 192 (2013)). Because "the 'touchstone of the Fourth Amendment is reasonableness[,]" the determination of probable cause is not fixed, mechanical, or uniform, but instead "emphasiz[es] the fact-specific nature of the reasonableness inquiry" in each case. Ohio v. Robinette, 519 U.S. 33, 39 (1996). The Supreme Court "has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible." Gerstein, 420 U.S. at 112 & 113 n.12. The requirement of ajudicial determination of probable cause only "whenever possible" is a "practical compromise" that, again, reflects an accommodation between the individual's liberty interest and the state's duty to control crime. Gerstein, 420 U.S. at 114. However, as the length of a seizure increases, the individual's liberty interests weigh more heavily, and a judicial determination of probable cause

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becomes mandatory. Gerstein, 420 U.S. at 114; Jones v. Lowndes County, Miss., 678 F.3d 344,
348 (5th Cir. 2012).
"The Government of the United States has broad, undoubted power over the subject of
immigration and the status of aliens[,]" derived in part from the constitutional directive that the
federal government "establish an uniform Rule of Naturalization[.]" Arizona, 567 U.S. at 394
(quoting U.S. Cost. art. I, § 8, ci. 4); Kleindienst v. Mandel, 408 U.S. 753, 765-66 & n.6 (1972) (noting that this authority is "inherent in sovereignty, necessary for maintaining normal
international relations and defending the country against foreign encroachments and dangersa
power to be exercised exclusively by the political branches of government[.]"). Pursuant to this
authority, Congress has enacted the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., a comprehensive statutory regime for the regulation of immigration and naturalization,
which describes, inter alia, the authority of the Secretary of Homeland Security to arrest and
detain certain aliens both with and without warrants.7° 8 U.S.C. § 1226, 1231, 1357.
Section 1357(d)(3) refers to ICE's authority, "[i]n the case of an alien who is arrested by
a Federal, State, or local law enforcement official for violation of any law relating to controlled
substances," to "issue a detainer to detain the aiien{,]"71 and 8 C.F.R. 287.7 establishes
7O its Statement of Interest, the United States notes that the executive's authority to issue administrative warrants to arrest and remove certain classes of aliens has long been recognized by Congress. Docket no. 90 at 19 n.7 (citing Abe/v. United States, 362 U.S. 217, 233 (1960); Act of June 25, 1798, c. 58, § 1-2, 1 Stat. 571 (describing the authority of the President to order the arrest and removal of "all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have
grounds to suspect are concerned in any treasonable or secret machinations against the government thereofi.]")).
71The United States explains that, although the NA does not "define detainers or provide language limiting their contemporary use," Section 13 57(d)(3) codified the use of detainers within the
context of controlled substance violations without limiting "the Executive's preexisting, broad detainer authority." Docket no. 90 at 18 & n.5 (citing Comm. for Immigrant Rights ofSonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009)). The United States notes that, notwithstanding the lack of clear statutory authorization or guidance, use of such requests "dates back to at least the 1940s[.]" Docket no. 90 at 17-18 (collecting cases). In a case arising from a detainer request issued in 1991, the
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guidelines for the use of detainers, which "serve[J to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien." 8 C.F.R. § 287.7(a). Since April 2, 2017, ICE detainer
requests have been issued using DHS Form I-247A, accompanied by either a Warrant for Arrest
of Alien (Form 1-200) or a Warrant of Removal (Form 1-205). The updated detainer form and warrant requirement reflect policy changes described in former DHS Secretary John Kelly's February 20, 2017, Memorandum on "Enforcement of the Immigration Laws to Serve the National Interest" and ICE Policy No. 10074.2, regarding "Issuance of Immigration Detainers by ICE Immigration Officers."72 As required by the updated ICE policy, the Form I-247A and accompanying administrative warrant include a description of the basis for ICE's determination of probable cause of removability, and requests that the receiving entity (1) notify DHS as early
as practicable before the suspected removable immigrant is scheduled to be released from criminal custody; and (2) maintain custody of the subject for up to 48 hours beyond the time he
would otherwise have been released so that DHS can assume custody of him.73 Docket no. 90 at
20-22; DHS Form I-247A.
Fifth Circuit described detainer requests as "an infonnal procedure in which the iNS informs prison
officials that a person is subject to deportation and requests that officials give the iNS notice of the person's death, impending release, or transfer to another institution." Giddings v. Chandler, 979 F.2d
1104, 1105 n.3 (5th Cir. 1992). 72Memorandum from DHS Secretary John Kelly on Enforcement of the Immigration Laws to
Serve the National Interest (Feb. 20, 2017), available at https://www.dhs.gov/sites/default/files/publications/ 1 7_0220_S 1_Enforcement-of-the-Immigration-Lawsto-Serve-the-National-Interest.pdf; ICE Policy Number 10074.2, available at https://www.ice.gov/sites/defaultlfiles/documents/Document/2017/1 0074-2.pdf.
73Prior to a 2012 policy change, ICE detainers were sometimes issued at the outset of an immigration status investigation. Current ICE policy requires that the basis for probable cause of removability be communicated in the detainer request; establishes that probable cause of removability must be based on (1) a final order of removal, (2) the pendency of a final removal proceeding, (3) biometric confirmation of the alien's identity that matches records affirmatively indicating a lack of lawful immigration status, or (4) voluntary statements of the alien, or "other reliable evidence" that
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The statutory authorizations of the INA, and the authority of the executive to arrest, detain, and order removalthough broad and long-recognizedare subject to the limits on the power of the federal government imposed by the Constitution. Zadvydas v. Davis, 533 U.S. 678,
689 (2001) (noting that the Supreme Court "ha[s] read significant limitations into ... immigration statutes in order to avoid their constitutional invalidation."). For instance, although Sections
1226(a) and 1357 make no mention of probable cause, but authorize federal arrest and detention upon "reason to believe" that an alien is removable and likely to escape before a warrant can be
issued, courts have construed these provisions to authorize arrest and detention by federal
immigration authorities only where they can show probable cause of removability. See, e.g., United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. Unit A May 1981); Morales v. Chadbourne, 793 F.3d 208, 216 (1st Cir. 2015) (collecting cases).
The INA also establishes a policy of comity between states and the federal government.
Congress has established a scheme under which removable aliens who have been sentenced to
periods of confinement by a state government are not removed until after their state-ordered confinement is complete. See, e.g., 8 U.S.C. § 1226(c)(1), 1231(a)(4)(A) ("the [Secretary of
Homeland Security] may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment"). The INA also contemplates state and local participation in federal immigration activities in certain limited and defined circumstances. For instance, under 8 U.S.C.
13 57(g), DHS may enter into formal, written, cooperative agreements with states and localities
under which, "subject to the direction and supervision ofthe [Secretary][,]" state and local
indicates lack of lawful status or removability; and specifies that probable cause of alienage and removability for detainer purposes may not be based solely "on evidence of a foreign birth and the absence of records in available databases ('foreign-born-no match')." ICE Policy Number 10074.2 § 2.6.
Additionally, prior to the 2017 ICE policy change, ICE detainer requests could either request pre-release
notification without extending the detention ofthe subject, or request that the subject's detention be
extended, but the current detainer form includes both requests in all cases. DHS Form I-247A; ICE Policy Number 10074.2 § 2.1.

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officers who have been federally trained and qualified in immigration enforcement may perform
"a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers)[.J" In the absence of a formal cooperation agreement under Section 1357(g),
the NA authorizes state and local law enforcement to make arrests for certain criminal law
violations that can also form the predicate for removability. See, e.g., 8 U.S.C. § 1252c (felons who have unlawfully returned to the United States),74 1324(c) (smuggling, transporting, or
harboring aliens); see also Arizona, 567 U.S. at 410, 412-13. The NA obligates ICE to respond
to any request by state and local officers for verification of citizenship or immigration status, and prohibits states and localities from adopting laws or policies that "prohibit[} or in any way
restrict, any government entity or official from sending to, or receiving from, [ICE] information regarding ... citizenship or immigration status[.]" Arizona, 567 U.S. at 411-12; 8 U.S.C. § 1226(d)(1)(A), 1373(a) and (c).
While ICE's authority to render removability determinations, arrest, detain, and remove
derives from the NA and the constitutional directive that the federal government "establish an
uniform Rule of Naturalization," the power of state and local law enforcement officers to investigate, arrest, and detain derives from a different source. See, e.g., Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905) (describing "power which the state did
not surrender when becoming a member of the Union under the Constitution[,]" which "must be
held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."); see also generally Atwater v.
74But cf 8 U.S.C. § 1252c(a) (authorizing arrest and detention by state and local officials of felons who have unlawfully reentered the United States "only after the State or local law enforcement officials obtain appropriate confirmation from [ICE] of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.").
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City ofLago Vista, 532 U.S. 318, 326-45 (2001) (discussing reasonableness of warrantless misdemeanor arrest by Texas police in light of common law). The Texas Legislature has broadly
empowered state and local law enforcement to "use all lawful means" to preserve peace within
their jurisdictions, including by effecting warrantless arrests upon probable cause of certain
criminal offenses. See, e.g., Tex. Crim. Proc. Code Art. 2.12 (defining peace officers), 12.13
(duties and powers of peace officers, including, inter alia, to "interfere without warrant to prevent or suppress crime"), 14.01-14.04 (authority of peace officers to make warrantless
arrests); Tex. Pen. Code § 1.03 ("Conduct does not constitute an offense unless it is defined as an
offense by statute, municipal ordinance, order of a county commissioners court, or rule
authorized by and lawfully adopted under a statute.").
In the immigration context, the NA authorizes state officers to make arrests for certain
federal criminal law violations that may also form the predicate for removability. 8 U.S.C. § 1252c, 1324(c); see generally United States v. DiRe, 332 U.S. 581, 589-91 (1948) (absent
federal statutory instruction, authority of state officers to make arrests for federal crimes is a matter of state law). But, since "the authority to control immigrationto admit or exclude
aliensis vested solely in the Federal government[,]" states retain no inherent authority to effect
arrests or detentions in immigration matters.75 Truax, 239 U.S. at 42. Any enactment that would
broadly empower state or local law enforcement officers to arrest or detain upon suspicion of
75The Supreme Court of Massachusetts recently observed that, while "[t]he assertion that [S]tate
and local officials have inherent civil enforcement authority has been strongly contested in the academy,
in police departments, and in the courts ... it is questionable whether a theory of 'inherent' or 'implicit'
State authority continues to be viable in the immigration context after ... Arizona[.}" Lunn v. Commonwealth, 2017 WL 3122363 at * 10 (Mass. 2017) (internal quotation marks and citations omitted); but cf Arizona, 567 U.S. at 417 (Scalia, J., concurring in part and dissenting in part, arguing that "[a]s a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."); see also Id. at 45559 (Auto, J., concurring in part and dissenting in part).
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removability would likely be unconstitutional for the reasons explained by the Supreme Court in Arizona, 567 U.S. at 407, 413 (noting holding that state "may not authorize warrantless arrests
on the basis of removability").76
Detention pursuant to an ICE detainer request is a Fourth Amendment seizure that must be supported by probable cause. See, e.g., Arizona, 567 U.S. at 413; Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) ("Because [the detainee] was kept in custody for a new purpose after she was entitled to release, she was subjected to a new seizure for Fourth Amendment
purposesone that must be supported by a new probable cause justification."); Cervantez v.
Whitfield, 776 F.2d 556, 560 (5th Cir. 1985) (reciting stipulation); Santoyo v. United States, 5:16-CV-855-OLG, 2017 WL 2896021, at *6 (W.D. Tex. June 5, 2017). Although both ICE and state and local officers may arrest and detain individuals without a warrant upon probable cause in certain scenarios, their respective authority to do so derives from different sources and serves different purposes, and the probable cause predicate that they must satisfy to effect such detentions in compliance with the Fourth Amendment therefore differs. The Supreme Court observed in the Arizona case that, "[a]s a general rule, it is not a crime for a removable alien to
remain present in the United States" and that "[i]f the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent." Arizona, 567 U.S. at 407; see also Santos v. Frederick County Bd. ofCorn 'rs, 725 F.3d 451, 464 (4th Cir. 2013) ("the
76Defendants stress that, under current ICE policy, all detainer requests will be accompanied by an administrative warrant. The Court nonetheless discusses the state's warrantless arrest authority because
the warrants referenced in the ICE policy, the DHS forms 1-200 and 1-205, state probable cause of removability rather than of a criminal offense, are not directed to state or local officials, and are not issued by a detached, neutral magistrate, but may be issued by any one of a broad array of ICE officers. See ICE Policy Number 10074.2 § 5.2; 8 C.F.R. § 241.2(a)(1) and 287.5(e)(2) (listing 31 categories of officials who may issue a Form 1-20 5 Warrant of Removal and 52 categories of officials who may issue a Form I200 Warrant for Arrest of Alien); cf United States v. US. Dist. Court for E. Dist. ofMich., S. Div., 407 U.s. 297, 317 (1972) ("The Fourth Amendment does not contemplate the executive officers of
Government as neutral and disinterested magistrates.").
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[Supreme] Court has said [in Arizona] that local officers generally lack authority to arrest
individuals suspected of civil immigration violations."); Mercado v. Dallas County, Texas, 3:15CV-3481-D, 2016 WL 3166306, at *7 (ND. Tex. June 7,2016) (discussing Arizona and Santos).
Defendants argue that, in every case where SB 4 requires a local jurisdiction to honor an ICE detainer request, the Fourth Amendment's requirements will be satisfied because the probable cause for the local jurisdiction to effect the requested seizure will be supplied by the information conveyed in the Form I-247A detainer request and accompanying administrative warrant. Docket nos. 90 at 39-40; 90 at 70-71. This argument conflates the distinct probable cause predicates that apply to detention by ICE and state and local police. See, e.g., Santos v.
Frederick Cly. Bd. ofComm 'rs, 725 F.3d 451, 465 (4th Cir. 2013) (noting that "[b}ecause civil
immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity."); Mercado v. Dallas Cty., 2017 WL 169102, at *7 (N.D. Tex. Jan. 17, 2017). In general, peace officers in Texas are authorized to "interfere without warrant to prevent or suppress crime[,]" Tex. Crim. Proc. Code Art. 12.13, and the probable cause finding that local officials must generally make in
order to constitutionally detainprobable cause of a crimereflects that purpose. ICE, on the
other hand, detains individuals, and issues administrative warrants and detainer requests, upon finding "probable cause to believe that the subject is an alien who is removable from the United States." ICE Policy Number 10074.2 § 2.3, 3.3 (defining "probable cause"); see also United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. Unit A May 1981) (describing probable cause determination under former INA's arrest authority pursuant to 8 U.S.C. § 1357(a)).
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Defendants argue that Plaintiffs cannot show that the detainer compliance provisions of SB 4 are unconstitutional in all applications because, as Plaintiffs do not appear to dispute, at least some detainer requests convey information that establishes probable cause of both removability and a criminal offense, under circumstances that would support application of the "collective knowledge doctrine."77 Defendants also argue that Plaintiffs' arguments for facial invalidation of SB 4's detainer compliance requirements improperly rely upon hypothetical scenarios premised on possible violations of ICE procedure or ICE policies and practices that are
no longer in effectexactly the sort of hypotheticals that courts found insufficient to support the
facial challenges in Anderson and Salerno.78 The Court does not agree. It is well-established that the Fourth Amendment requires an
assessment of probable cause that is particularized as to both the subject of the search or seizure and as to "the facts and circumstances within the arresting officer's personal knowledge, or of
which he has reasonably trustworthy information[.]" Evett v. DETNTFF, 330 F.3d 681, 688 (5th
Cir. 2003) ("Probable cause is determined on the basis of facts available to the officer at the time of the arrest"); Maryland v. Pringle, 540 U.S. 366, 373 (2003) ("Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person."); Wong Sun v. United States, 371 U.S. 471, 479 (1963) ("The quantum of information which constitutes probable cause ... must be measured by the facts of the particular case."). And, while probable cause "may be supported by the collective knowledge of law
77Docket nos. 90 at 43-44 & 44 n.17; 91 at 7 1-72 (arguing that "even if it were true that 'ICE detainers do not always meet Fourth Amendment requirements of probable cause[,}' cases in which ICE detainers are backed by probable cause are fatal to plaintiffs' claim that SB4 is facially invalid.") (internal citation omitted); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008). 78Docket nos. 90 at 41-42; 91 at 72 (discussing "informal detention requests" and prior ICE
policy under which detainers were sometimes not supported by probable cause of removability).
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enforcement personnel who communicate with each other prior to the arrest[,]" the officer
carrying out the seizure is not relieved of the obligation to assess the existence of probable
causeshe may not, for instance, "disregard facts tending to dissipate probable cause." Evett,
330 F.3d at 688 (quoting Bigfordv. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)).
However, SB 4 prohibits local officials from undertaking any particularized assessment
of suspected criminality. Rather, it mandates that they effect a seizure simply because it was requested by ICE, who issues that request based upon suspicion that the subject of the request is
removable, not based on suspicion of a crime. SB 4 imposes this mandate subject to a single exception: where the subject of the request "has provided proof that the person is a citizen of the
United States or that the person has lawful immigration status in the United States, such as a
Texas driver's license or similar government-issued identification."79 Tex. Crim. Proc. Code § 2.25 1(b); Tex. Pen. Code § 39.07(c). Under SB 4, this assessment of immigration status must be made by local officials, who are generally not trained in the complex field of immigration status
determinations, and who, if they are mistaken, face the risks of financial penalties, removal from
office, and criminal prosecution by Defendants on the one hand, or wrongfully detaining a
citizen or lawfully present immigrant, and any related liability, on the other.8° More
791t is unclear from the text of SB 4 whether other means of proving citizenship aside from producing a government-issued identification would suffice to excuse local officials' noncompliance with
a federal detainer request. However, since being present in the United States without citizenship or lawful
immigration status is not a criminal offense, it is immaterial how SB 4 permits the subject of a detainer to prove their lawful status. Regardless of the methods of proof permitted, SB 4 requires local officials to disregard an assessment of probable cause of a crime, and replace it with an (arguably limited) assessment of probable cause of a civil offense.
80As Defendants emphasize, Section 3.01 of SB 4, Tex. Gov't Code § 402.0241, provides that the Attorney General shall defend localities, and the state will be liable for the expenses, costs, judgment, or settlement of claims, in some cases. However, this protection is subject to two conditions: First, the "executive head or governing body" of the local entity must request the Attorney General's assistance, and second, the Attorney General must make a determination "that the cause of action arises out of a claim involving the local entity's good-faith compliance with an immigration detainer request required
by" SB 4.
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fundamentally, the assessment of citizenship or lawful immigration status to be made by local officials is wholly unrelated to any degree of suspicion of a criminal offense, yet SB 4 makes it central to local officials' determinations of whether to carry out the seizure requested by federal immigration enforcement officials. As discussed above, ICE's authority to arrest and detain those
they suspect are removable derives from the authority conferred upon them by Congress under
the INA, and ultimately, under Section 8 of Article I of the Constitution. Defendants have not
identified any provision of lawwithin the INA, Texas statute, or some other legal authority
that authorizes the local officials subject to SB 4 to arrest and detain for civil immigration
violations, or to assess probable cause of removability. As noted above, the Supreme Court's
holding in Arizona raises significant doubts regarding whether the state may do so.81 Arizona,
567 U.S. at 413 ("Arizona may not authorize warrantless arrests on the basis of removability"). And, since local officials are not authorized or trained to assess probable cause of removability, they are not capable of making a particularized assessment of probable cause of removability in light of the information available to them at the time of the seizure, which includes any facts tending to dissipate probable cause. Despite this, the detainer compliance provisions of SB 4 require them to detain the subject of the federal detainer request for up to 48 hours. The Court
agrees with Plaintiffs that these provisions likely violate the Fourth Amendment. The Court further finds that these Fourth Amendment violations are common to all
applications of these provisions of SB 4. SB 4 mandates that local officials effect seizures
requested by ICE while prohibiting those officials from making an independent, particularized
assessment of whether probable cause of a crime exists to support that seizure in every case in
81To the extent that Defendants argue that SB 4 itself provides this authorization, the argument fails for this reason.
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which it applies. And, as discussed above, it effectively precludes consideration of facts tending
to dissipate probable cause of removability, by creating an exception to mandatory detainer
request compliance only where, in the assessment of a local law enforcement official, the subject
of the detainer "has provided proof that the person is a citizen of the United States or that the
person has lawful immigration status in the United States[.]" SB 4 Section 2.01, Tex. Crim. Proc.
Code Art. 2.251(b). These violations are present in every application of SB 4 regardless of
whether the hypothetical subjects of the resulting seizures would prevail in all cases challenging
their detention.82
The Court's focus on the manner in which SB 4 permits localities to assess probable
cause is appropriate for two reasons. First, unlike most Fourth Amendment cases, the basis for
the Court's subject matter jurisdiction in this case is the forward-looking interest of local
officials in avoiding violations of their oaths of officenot the interest of an individual who
seeks to suppress evidence or recover damages in connection with an unlawful search or seizure
that has already taken place. It is therefore appropriate for the Court's analysis to focus on the
manner in which SB 4 will regulate the process by which local officials make assessments of
probable cause, rather than engaging in speculation about the Fourth Amendment implications of
821n a case featuring analogous reasoning, the Supreme Court declined to order the exclusion of
evidence that was obtained during a search conducted pursuant to a statute authorizing warrantless
searches which, in a separate case, had been found facially in violation of the Fourth Amendment. Illinois
v. Krull, 480 U.S. 340, 342 (1987). The Court reasoned that, while the exclusionary rule is intended to
deter violations of the Fourth Amendment by police, excluding evidence obtained during a search
authorized by an unconstitutional statute would not deter the legislature from enacting laws that violated the Fourth Amendment. Krull, 480 U.S. at 352. Rather, "a person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation." Krull, 480 U.S. at 354 & n. 11. More recently, in Pate!, the Court facially invalidated a municipal warrantless search ordinance that precluded the opportunity for precompliance review by a neutral decision maker that is required for an administrative search regime to be valid. Pate!, 135 S. Ct. at 2452. The Court reached this conclusion even while acknowledging that, in the majority of cases, the subjects of the searches would not pursue such review, and in the majority of cases in which they did, officers could easily subpoena the records in question and that, "[g]iven the limited grounds on which a motion to quash can be granted, such challenges will likely be rare." Pate!, 135 S. Ct. at 2453.
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various hypothetical seizures that might take place as a result. Second, as a prospective matter, the process by which probable cause determinations are made cannot be distinguished from the
reliability of those determinations, except by making a baseline assumption that, inevitably, probable cause of a crime must exist to support some seizures carried out by a locality complying with all ICE detainer requests. Defendants argue that we should do exactly that: Since there are at least some cases in which "ICE detainers are backed by probable cause," Defendants argue, Plaintiffs' facial Fourth Amendment challenge cannot proceed because SB 4 therefore must have "at least some valid applications[.]" Docket no. 91 at 66, 7 1-72. However, a similar argument was considered and rejected by the Supreme Court in Pate!, where the Court noted that the logic of this argument "would preclude facial relief in every Fourth Amendment challenge to a statute
authorizing warrantless searches"a conclusion that would be inconsistent with Supreme Court
precedents that "demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed." Pate!, 135 S. Ct. at 2451 (rejecting argument that "facial challenges to statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all applications"). And, as discussed above, this
argument misapprehends the proper focus of the Court's analysis. Since SB 4 will prohibit the particularized assessment of probable cause in every case in which it applies, it is immaterial
that, in some hypothetical scenarios, probable cause might have been found to exist after the
seizure was carried out. The interest of local officials who wish to avoid violating their oath to
uphold the Constitution is that they not be required to carry out seizures predicated on deficient
assessments of probable cause. The reasoning would be no different if a state statute required officials to arrest or detain random individuals on the basis of a coin toss. Such a requirement
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would not be immune from facial constitutional challenge simply because the police would
inevitably detain someone as to whom they could have found probable cause.
As in Pate!, it is irrelevant that, in some cases, local officials may voluntarily honor ICE
detainer requests. The record suggests that many Plaintiffs routinely honor at least some ICE
detainer requestscooperation that reflects their assessment that the requisite probable cause of
a crime is present (or, alternatively, that reflects their own violations of the Fourth Amendment,
see Santoyo, 2017 WL 2896021). As in Pate!, however, such scenarios are not relevant because
they involve voluntary conduct rather than an "application" of SB 4. Pate!, 135 S. Ct. at 2451 (in
assessing whether a law is "unconstitutional in all of its applications[,]" "the Court has
considered only applications of the statute in which it actually authorizes or prohibits
conduct.").83 SB 4 "applies" where it prohibits local officials from declining detainer requests
that they do not wish to honor. Local officials in such cases may wish to disregard particular
detainer requests for reasons of cost, concerns about compromising the effectiveness of their
enforcement efforts, because they doubt the existence of probable cause to support the requested
seizure, or for other reasons. Regardless of the reason, however, in every case in which SB 4
83 The Pate! Court's reasoning that a statute is not "applied" when an individual who would be subject to it voluntarily does what the statute would require was drawn in part from the Supreme Court's
earlier reasoning in P!anned Parenthood ofSoutheastern Pa. v. Casey, 505 U.S. 833 (1992). In that case, the Court considered the facial validity of a statute that required women seeking an abortion to first notify
their husbands. The statute's defenders argued that it should not be facially invalidated because most women voluntarily notify their husbands before seeking an abortion, and the law would therefore not impose an undue burden on their access to abortion services. They presented evidence that "only about 20 percent of the women who obtain abortions are married" and that "of these women about 95 percent notify their husbands of their own volition" and that therefore "the effects of [the statute] are felt by only
about one percent of the women who obtain abortions." Casey, 505 U.S. at 894. The Casey Court rejected this argument, noting that because "[t]he proper focus of constitutional inquiry is the group for whom the
law is a restriction, not the group for whom the law is irrelevant[,]" "[t]he analysis does not end with the one percent of women upon whom the statute operates; it begins there." Casey, 505 U.S. at 894 ("we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law."; citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)).
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prohibits a local official from declining a detainer request, it also prohibits that official from making the inquiry that state and local law enforcement are required to make under the Fourth
Amendment: whether probable cause of a crime exists to support that seizure.
The Court is also not persuaded by Defendants' arguments that Plaintiffs' Fourth Amendment claims rely on hypotheticals regarding informal or defective ICE detainer requests. For instance, Plaintiffs argue that SB 4 would require state officials to honor informal telephonic
detainer requests from ICE, detainer requests that are not supported by probable cause of
removability, or ICE requests that local officials detain individuals for longer than 48 hours.84 Defendants point out that such requests would violate current ICE policy, and argue that SB 4
would not penalize noncompliance with such requests even if ICE did issue them, and that a facial challenge premised on such hypothetical violations of ICE policy cannot prevail. Docket nos. 90 at 42; 91 at 72. Plaintiffs are correct that SB 4 does not limit its requirement of
compliance with detainer requests to cases in which the detainer request is issued under current ICE policy, or using a Form I-247A.85 The possibility that SB 4 could be applied to cause a constitutional deprivation by requiring compliance with a detainer request that lacks probable cause or seeks detention longer than 48 hours would not alone be sufficient enough to sustain a
facial challenge, just as the hypothetical unconstitutional applications of the AFDC regulation in
Anderson or the pretrial detention provision in Salerno were not sufficient to sustain facial
challenges.86 However, in this case, given the clarity of SB 4's detainer compliance commands,
84See, e.g., docket no. 24-1 at 40-41; 56-1 at 32-33 & 33 n.33. 85SB 4 at Section 1.02, Tex. Gov't Code § 772.073(a)(2) (defining "Immigration detainer request" to mean "a federal government request to a local entity to maintain temporary custody of an alien, including a [Form 1-247] document or similar or successor form."). 861n Anderson, the Supreme Court rejected a facial challenge to a California state law governing
the composition of Assistance Units under the federal-state administered Aid to Families with Dependent
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the Court need not resort to hypothetical speculation.87 The Court finds, for the reasons discussed
above, that an inadequate assessment of probable cause is certain to follow in every scenario in
which SB 4 is applied, regardless of whether some applications of SB 4 might potentially be
unconstitutional in other ways. The Court therefore concludes that Plaintiffs are likely to succeed
on the merits of their claims that the provisions of SB 4 that require local entities to fulfill all
ICE detainer requests (Sections 2.01 and 5.02, Tex. Crim. Proc. Code Art. 225l, Tex. Pen. Code
§ 39.07) facially violate the Fourth Amendment.
2. Immigration Status Inquiries
The Court next considers the parties' arguments regarding the immigration inquiry
provisions of SB 488 The pertinent portion of Section 1.01, Tex. Gov't Code § 752.053(b),
provides that local entities and campus police departments may not prohibit or materially limit a
Children (AFDC) program, even though under certain hypothetical applications the state law might violate federal AFDC guidelines. Anderson, 514 U.S. at 155 n.6 (declining to rule on the hypothetical
scenario but observing that "an as-applied challenge that presented the. . . issue in a concrete factual
setting might require a court to decide it[.]"). In Salerno, the Supreme Court was faced with a facial
challenge to pretrial detention provisions of the Bail Reform Act of 1984, codified at 18 U.S.C. § 3 142(e), which authorized pretrial detention of persons charged with certain serious crimes based upon a judicial
finding that the detainee poses a danger to the community. The Court rejected the argument that these provisions violated the Fifth Amendment's due process clause, reasoning, inter a/ia, that the Act established sufficient procedural safeguards to limit the duration of pretrial detention, ensure the
reliability of the judicial finding of danger to the community, and ensure that the detention would be imposed only in cases where the liberty interests of the detainee were outweighed by the government's
interest in preventing crime by the detainee. Salerno, 481 U.S. at 747-51. Having found that the Bail Reform Act's "compelling regulatory purpose" and procedural protections "far exceed" and are "more exacting" than those found sufficient to ensure in other contexts that detention complied with due process,
the Court then rejected the facial challenge to the adequacy of the Bail Reform Act's procedureseven
while acknowledging that "they might be insufficient in some particular circumstances." Salerno, 481 U.S. at 75 1-52.
87Compare, e.g., Sibron v. New York, 392 U.S. 40, 59 (1968) (declining to "be drawn into. . . the abstract and unproductive exercise" of reconciling "the extraordinarily elastic categories" of a state warrantless search statute with the requirements of the Fourth Amendment); and Payton v. New York, 445 U.S. 573, 576 (1980) (finding that "the New York [warrantless arrest] statutes are not consistent with the
Fourth Amendment").
88Sections 1.01 and 6.01, Tex. Gov't Code § 752.053(b) and Tex. Crim. Proc. Code Art. 2.13).
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peace officer or various other law enforcement or prosecution officials from, inter alia,
"inquiring into the immigration status of a person under a lawful detention or arrest[.]" Section 6.01 amends the article of the Texas Criminal Procedure Code outlining the duties and powers of
peace officers to define the circumstances under which peace officers may question the victims
or witnesses of alleged criminal offenses regarding their nationality or immigration status. First,
Section 6.01 provides that such questioning is permitted only when "the officer determines that the inquiry is necessary to investigate the offense; or [to] provide the victim or witness with information about federal visas designed to protect individuals providing assistance to law enforcement." Next, Section 6.01 clarifies that the preceding limitations do not prohibit peace
officers from "conducting a separate investigation of any other alleged criminal offense" and questioning victims and witnesses of criminal offenses regarding their immigration status "if the
officer has probable cause to believe that the victim or witness has engaged in specific conduct constituting a separate criminal offense."
The cities of Austin, San Antonio, and Dallas argue that SB 4 immigration inquiries leave
them powerless to prevent inevitable Fourth Amendment violations by officers.89 Defendants argue that the immigration inquiries that SB 4 prohibits local entities from prohibiting or "materially limit[ingj" will not constitute Fourth Amendment seizures because SB 4 "does not require immigration-status investigation[s]" and does not authorize officers to initiate or prolong arrests or detentions to inquire about immigration status, but only requires that such inquiries be permitted "where they are otherwise consonant with the Fourth Amendment." Docket no. 91 at 76-77.
In Arizona, SB 1070 included a provision, codified at Ariz. Rev. Stat. § 11-1051(B)
(Section 2(B)), that resembles in some ways the immigration inquiry provisions of SB 4. Section & 89Docket nos. 57 at ¶ 32; 146 at 6-9; 151 at23 n.10; 152 at 27-28.
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2(B) provides that, upon conducting a "lawful stop," state or local law enforcement officers are required to make a "reasonable attempt ... when practicable" to determine the person's immigration status, and that "[amy person who is arrested shall have the person's immigration status determined before the person is released." Ariz. Rev. Stat. § 11-1051(B). The Supreme
Court, presented with arguments that Section 2(B) would require officers to delay the release of
some detainees in order to complete immigration status verifications, noted that "[d]etaining
individuals solely to verif' their immigration status would raise constitutional concerns."
Arizona, 567 U.S. at 413. Nonetheless, the Court declined to invalidate Section 2(B) at the
preenforcement stage because it "could be read to avoid these concerns" since "if § 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful
detention or after a detainee has been released, the provision likely would survive preemption
at least absent some showing that it has other consequences that are adverse to federal law and its objectives." Arizona, 567 U.S. at 414-15 (noting further that "{t]here is no need in this case to
address whether reasonable suspicion of illegal entry or another immigration crime would be a
legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.").
SB 4's immigration inquiry provisions, unlike Section 2(B), do not mandate immigration
inquiries, but merely authorize specified officials to conduct them and prohibit local entities from prohibiting or limiting them. However, while Section 2(B) imposed its mandate only upon law enforcement officials and agencies, SB 4 authorizes immigration inquiries by a far broader array
of officials in addition to peace officers: corrections officers, booking clerks, magistrates, district attorneys, criminal district attorneys, or other prosecuting attorneys. Tex. Gov't Code §
752.053(b). While Section 2(B) required officers to "determine" immigration statusthe
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Supreme Court noted that "[t]he accepted way to perform these status checks is to contact
ICE"SB 4 authorizes officers, in addition to contacting ICE, to question the detainee about
their immigration status.90 And SB 4, like Section 2(B), does not authorize officers to initiate arrests, detentions, or Terry stops to inquire about immigration status, but permits such inquiries only as to those "under a lawful detention or under arrest[.]" Tex. Gov't Code § 752.053(b)(l).
Most significantly, these provisions of SB 4, like Section 2(B), and unlike SB 4's mandate to fulfill all ICE immigration detainer requests, are susceptible to a wide array of constructions.
It is clear that a state law authorizing state and local law enforcement officers to initiate or prolong Fourth Amendment seizures in order to inquire or investigate immigration status would be invalid. Arizona, 567 U.S. at 413 ("it would disrupt the federal framework to put state
officers in the position of holding aliens in custody for possible unlawful presence without
federal direction and supervision."). It is also clear, however, that questioning not supported by
any quantum of suspicion does not violate the Fourth Amendment if it does not prolong an
otherwise lawful detention.9' Muehier v. Mena, 544 U.S. 93, 101(2005) ("mere police
90Plaintiffs do not assert that the information-sharing requirements of SB 4 violate the Fourth Amendment, and the Court notes that the substance of these requirements appears to duplicate the INA's longstanding prohibition against local government measures that "prohibit, or in any way restrict, any government entity or official from sending to, or receiving from [ICE] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373; see also
Arizona, 567 U.S. at 411-12 (noting that "Congress has made clear that no formal agreement or special training needs to be in place for state officers to 'communicate with the [Federal Government] regarding
the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States." and discussing 8 U.S.C. § 1357(g)(l0)(A) and 1373).
910f course, depending upon the manner in which it is carried out, such questioning may have
constitutional implications aside from the Fourth Amendment. See, docket no. 24-4 at ¶j 10-11 (opinion
that "[w]ithout proper training, supervision, or resources, police will rely on racial proxies for
immigration status and screen minorities and those who 'look' foreign[,]" creating a heightened risk of
Fourth Amendment and Equal Protection violations); United States v. Mata-Abundiz, 717 F.2d 1277, 1279 (9th Cir. 1983) (holding that "in-custody questioning by INS investigators must be preceded by
Miranda warnings, if the questioning is reasonably likely to elicit an incriminating response."); United
States v. Gonzalez-DeLeon, 32 F. Supp. 2d 925, 928 (W.D. Tex. 1998) (adopting reasoning from Mata-
Abundiz); but cf United States v. Arias-Rodriguez, 636 Fed. Appx. 930, 932 (7th Cir. 2016)
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questioning does not constitute a seizure"; "[E]ven when officers have no basis for suspecting a
particular individual, they may generally ask questions of that individual; ask to examine the
individual's identification; and request consent to search his or her luggage." (internal quotation marks omitted)). While SB 4 clearly authorizes inquiries about immigration status within the context of "a lawful detention or ... arrest[,]" it is silent as to whether the arrest or detention may
be prolonged in order for the officer to carry out the inquiry and undertake any of the other steps
authorized by SB 4, such as sending or requesting information from ICE, or exchanging information with other campus, local, state, or federal police department or entity. Accordingly, like the Supreme Court in Arizona, the Court declines at this juncture to construe the inquiry
provisions of SB 4 in a manner that would render them unconstitutional on their face. Arizona,
567 U.S. at 414 (citing Fox v. Washington, 236 U.S. 273, 277 (1915)).
As the text of these provisions makes clear, SB 4 does not permit officers to initiate stops in order to inquire about immigration status, but requires that such inquiries be allowed only "of a person under a lawful detention or under arrest." Tex. Gov't Code § 752.053(b)(l). SB 4 requires that local entities allow officer inquiries into immigration status, but if the officer
believes that the individual has answered dishonestly, or ifthe individual refuses to answeror
even if the individual tells the officer that they are undocumentedthe Fourth Amendment does
not permit SB 4 to authorize, and SB 4 does not require local entities to allow, officers to prolong the seizure in order to further investigate the individual's immigration status or to hold them for federal authorities. Rather, at the expiration of the time reasonably required to carry out the
purposes of the initial stop, the officer is required to release the individual, regardless of whether he suspects or even knows that the individual is undocumented. See generally illinois v.
Caballes, 543 U.S. 405, 407 (2005); United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002)
(distinguishing Mata-Abundiz).
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("A search and seizure must be reasonably related in scope to the circumstances which justified the stop in the first place. The officer should use the least intrusive means reasonably available to
verify or dispel his or her suspicion in a short period of time." (internal citations omitted)).
Beyond this, SB 4 merely requires that the officer be permitted (but not required) to share with ICE whatever information (however incomplete) he discovers during his immigration inquiry, either after releasing the individual or during the seizure, provided that this communication does not prolong the seizure. Notably, during the preliminary injunction hearing in this matter, the
State of Texas advocated exactly this interpretation of the immigration inquiry provisions of SB
492
Plaintiffs argue that prohibiting officers from inquiring into immigration status serves
valuable law enforcement objectives by ensuring that members of the communityincluding victims of and witnesses to crime who are themselves undocumentedare comfortable
approaching the police with information they have regarding criminal activity. Plaintiffs argue
that the value of this cooperation outweighs any benefit to be derived from permitting
immigration inquiries, particularly where the constitutional limits that must be imposed on such
inquiries result in ineffectual enforcement of civil immigration laws by state and local law enforcement. However, it is not the Court's role to take a position in a debate about law
enforcement effectiveness and priorities. Since it is possible to construe the immigration inquiry
provisions of SB 4 to avoid violating the Fourth Amendment, the Court is obligated to do so,
particularly at this early stage in a preenforcement facial challenge to its validity. The Court
92Docket no. 143 at 114-15, 118 (Counsel for Defendants arguing that, under SB 4, "[t]here is no suggestion that [Texas police officers] can make arrests or detentions based on those inquiries. All they can do is make the inquiry"; SB 4 "does not allow for local law enforcement to continue to detain a person for any amount of time beyond their state lawful detention for a continued inquiry on federal immigration status.").
r.I

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therefore finds that Plaintiffs have not shown, at this juncture, that they are likely to succeed on
the merits of their facial Fourth Amendment challenges to the immigration inquiry provisions.93
V.
Substantial threat of irreparable injury
The State essentially concedes that irreparable harm requirement is met:
The State of Texas concedes, Your Honor, that if Senate Bill 4 is unconstitutional or a provision of it is severed by this Court or this Court finds it unconstitutional, if it is, and it would violate the constitutional rights of the public, then there is
irreparable harm.
Tr. 113:3-7. The Court has found that certain provisions of SB 4 are field and conflict preempted by federal law; thus, enforcing those provisions of SB 4 will interfere with the federal government's authority to control immigration. The Court has also found that enforcing SB 4 will result in First Amendment violations. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S.
347, 373 (1976); Opulent Life Church v. City ofHolly Springs, 697 F.3d 279, 295 (5th Cir. 2012). The Court has further determined that vague prohibitions in SB 4 violate due process
and create a real danger of arbitrary and discriminatory enforcement, which has already been threatened.95 And the Court has found that enforcement of the mandatory detainer provisions will
inevitably lead to Fourth Amendment violations.
93This finding, of course, is only preliminary. "As applied" challenges are not addressed herein. 94"If speech can be prohibited because, in the view of the Government, it leads to "moral decay" or does not serve "public ends," then there is no limit to the Government's censorship power." Citizens
Unitedv. Fed. Election Comm'n, 558 U.S. 310, 391 (2010).
95See, e.g., docket no. 57-14. public statements of Governor Abbott ("I'm putting the hammer down ... Texas is not going to stand for it ... We are going to be asserting fines. We're going to be seeking court orders that could lead to putting these people behind bars, the officials who are violating their oath of office ... and if they fail to comply with the mandamus action they would be subject to going to jail.").
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Federal courts at all levels have recognized that a violation of constitutional rights constitutes irreparable harm as a matter of law and no further showing of irreparable injury is
necessary. DeLeon v. Perry, 975 F.Supp. 2d 632, 663 (W.D. Tex. 2014); Cohen v. Coahoma County, Miss., 805 F.Supp. 406 (N.D. Miss. 1992).96 But assuming arguendo that this legal presumption of irreparable injury did not apply, and the State did not concede to irreparable harm, the record is replete with evidence of the substantial threat of irreparable injury that will
likely occur if SB 4 is implemented and enforced as written and in its entirety. Some ofthis harm is truly imminent, and some is arguably more remote, but the threat of irreparable harm is both real and substantial. The long list of probable harms in the absence of injunctive relief includes:
Local officials, some of whom have decades of knowledge and vast
experience in local government, have been threatened and fear that any action they take or statements they make could be used as grounds for harsh civil penalties and removal from office. See Tr. 89:4-7; docket no. 24, declarations of Tom Schmerber, Mario A. Hernandez, and Raul Reyes; docket no. 57-14, public
statements of Governor Abbott ("I'm putting the hammer down ... Texas is not going to stand for it ... We are going to be asserting fines. We're going to be
seeking court orders that could lead to putting these people behind bars, the
officials who are violating their oath of office ... and if they fail to comply with
the mandamus action they would be subject to going to jail."); docket no. 77, exhibit 1-N ("Gov. Greg Abbott ... will seek new laws that would remove
[Sheriff Hernandezj from office"), and declarations of William McManus and Rey Saldana (exhibits 4, 5); docket no. 56, declaration of J. Bernal; docket no. 58,
96See also 1 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995).

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declaration of Sally Hernandez.97
Local officials will be prohibited from effectively guiding, supervising, and directing their employees, and allocating resources to address the most pressing
public safety needs of the community. See Tr. 16:18-23; 73:16-18; 75:12-17; 90:14-17; docket no. 24, declaration of Tom Schmerber; docket no. 57, declaration of Brian Manley; docket no. 58, declaration of Sally Hernandez.
Employees on college campuses, where freedom of speech is vital, will be deterred from speaking out in favor of the type of local policies that SB 4
prohibits. See docket no. 77, exhibit 6. Undocumented students on college campuses will be targeted under SB 4
because campus police departments are also subject to sanctions and penalties under SB 4. Thus, enrollment and attendance will be affected. See docket no. 77,
exhibits 6, 11; docket no. 56, declaration of Senator Jose Rodriguez (referring to Gov. Abbott's attack on Texas State University as a so-called sanctuary campus).
Local officials and the Hispanic community anticipate racial profiling and
increased frequency of ICE raids, which are tied to the objectives of SB 4. See Tr. 89:24-90:4; docket no. 56, declaration of J. Bernal; docket no. 57, declarations of Gregorio Casar and Brian Manley; docket no. 58, declaration of Sally Hernandez.
Undocumented immigrants, and U.S. citizens related to them, who are victims
97The Attorney General has made overtures about certain statements or conduct that it would not seek to prosecute. But veiled assurances are not enough. See Stevens, 559 U.S. at 480 ("Not to worry, the Government says ... [t]he Government hits this theme hard, invoking its prosecutorial discretion several
times. But the [Constitution] protects against the Government; it does not leave us at the mercy of
noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly ... the Government's assurance that it will apply [the challenged statute]
far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the
potential constitutional problems with a more natural reading").
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of family violence, sexual assault, abuse, and stalking will be reluctant to come
forward to report crimes because they will face removal from the country and separation from their families. See Tr. 13:4-17; 14:16-21; 86:4-13; 270:14-15; docket no. 58, declaration of Sally Hemandez.
Undocumented immigrants, and U.S. citizens related to them, will be reluctant to send their children to school, attend church, report housing problems, and seek health care, including prenatal care, because it will put members of their family at
risk of removal. See Tr. 11:25-12:9; 182:7-21; 184:4-16; 270:10-13; docket no. 77, exhibit 8; docket no. 57, declarations of Gregorio Casar, S. Krieger, and S.
Renteria. Trust between local law enforcement and the people they serve, which police
departments have worked so hard to promote, will be substantially eroded and result in increased crime rates. See docket no. 77, exhibit 7; docket no. 57,
declarations of S. Adler and Brian Manley; docket no. 56, declaration of J. Bernal.
Local jurisdictions face severe economic consequences under SB 4, including
civil penalties, the loss of grant money, the loss of conferences and conventions, the threat of future litigation, the loss of immigrant workers (who help drive state
and local economic engines); and ensuing tax consequences. See docket no. 56,
declaration of J. Bernal; docket no. 77, exhibits 14, 16; docket no. 158, declaration of Ramiro Cavazos; docket no. 57, declaration of S. Vivanco; docket no. 56, declaration of Senator Jose Rodriguez (referring to Gov. Abbott's threat to withhold criminal justice grants); docket no. 57-14, public statements of Governor Abbott ("I have withheld $1.5 million in governor grants to Travis County ... We

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are going to be asserting fines."); docket no. 57, declaration of B. Johnson.98
VI.
Balance of equities The balance of equities, which explores the relative harms to the parties, tips heavily in Plaintiffs' favor. The State asserts that it has an interest in implementing and enforcing its enacted laws, but the protection of constitutional rights is paramount.99 As the State concedes, local jurisdictions have been cooperating with federal immigration authorities for decades. Local cooperation, under the rubric of federal law, will not change. But the mandates, prohibitions,
penalties, and sanctions under SB 4 impose substantial burdens on local entities that are not
imposed under federal law. The burden on the State if SB 4 is not implemented and enforced in
its entirety on September 1 does not even remotely compare with the concrete burdens that SB 4 imposes on local entities.100 The mandates, penalties, and exacting punishments under SB 4 upset the delicate balance between federal enforcement and local cooperation and violate the United States Constitution for the reasons stated herein. These constitutional concerns clearly outweigh
the State's interest in enforcing the prohibitions in SB 4. See Georgia Latino All, for Human
Rights v. Governor ofGeorgia, 691 F.3d 1250, 1269 (11th Cir. 2012) ("Plaintiffs are under the
threat of state prosecution for crimes that conflict with federal law, and we think enforcement of
98Financial losses, standing alone, would not be enough for a showing of irreparable harm, but the economic losses that localities suffer will be passed on to taxpayers and thus are adverse to the public interest, which factors into the balance of equities as well.
99See DeLeon v. Perry, 975 F.Supp. 2d at 664 (any harm that the State may experience from enjoining state officials from enforcing a challenged law is outweighed by the constitutional harm that
plaintiffs and the public will likely suffer if the law is enforced). 100Despite the State's yearning for immediate enforcement, enjoining the enforcement of SB 4
until a final decision on the merits will benefit the State as well. If SB 4 is implemented, the State will
begin spending public funds to enforce SB 4 against local entities that will also spend public funds to defend themselves. Both State and local entities will also need to expend public funds to defend against spin off litigation, including Fourth Amendment challenges.
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a state law at odds with the federal immigration scheme is neither benign nor equitable."). VII.
Public interest
The best interests of the public will be served by preserving the status quo and enjoining, prior to September 1, the implementation and enforcement of those portions of SB 4 that, on their face, are preempted by federal law and violate the United States Constitution.
On February 2, 2017, when SB 4 was being considered in the Senate, eight witnesses showed up to support SB 4 and over 1,600 witnesses showed up to oppose it. Docket no. 77,
exhibit 1 -D. The named plaintiffs in this lawsuit include five of the six largest cities in the State of Texas Houston, Dallas, San Antonio, Austin, and El Paso and their cumulative population exceeds six million people.10' This is representative of the public opposition to SB 4 and the
overwhelming public concern about its detrimental effect. The public interest in protecting constitutional rights, maintaining trust in local law enforcement, and avoiding the heavy burdens
that SB 4 imposes on local entities will be served by enjoining those portions of SB 4 that the
Court has preliminarily determined are preempted or are constitutionally invalid on their face. Again, this will merely preserve the status quo until the merits of Plaintiffs' claims are resolved.
In conclusion, the Court's role is limited to determining the constitutionality of a statute, not its wisdom or necessity. That is within the sole discretion and prerogative of the Legislature.
There is overwhelming evidence by local officials, including local law enforcement, that SB 4 will erode public trust and make many communities and neighborhoods less safe. There is also ample evidence that localities will suffer adverse economic consequences which, in turn, harm
the State of Texas. Indeed, at the end ofthe day, the Legislature is free to ignore the pleas ofcity
and county officials, along with local police departments, who are in the trenches and
101https://www.tsl.texas. gov/ref/abouttxlpopcity32o I 0.html.
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neighborhoods enforcing the law on a daily and continuing basis. The depth and reservoir of
knowledge and experience possessed by local officials can be ignored. The Court cannot and does not second guess the Legislature. However, the State may not exercise its authority in a manner that violates the United States Constitution.
IT IS THEREFORE ORDERED that Defendants are ENJOINED from implementing and
enforcing the following provisions of SB 4: 1. The enforcement provision in Tex. Gov't Code § 752.053(b)(3) and any action
(including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.05 5, 752.056, and 752.0565 arising therefrom;102 2. The endorsement prohibition in Tex. Gov't Code § 752.053(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.055, 752.056, and 752.0565 arising therefrom;
3. The prohibition against adoption or enforcement of policies "that materially limit" the enforcement of immigration laws in Tex. Gov't Code § 752.053(a)(1), and any action

102As the Court previously discussed, Texas Government Code § 752.053(b)(l)-(2) addressing

immigration status inquiries and sharing of immigration status information are not enjoined at this time.

SB 4 permitsbut does not requirethat officers make an immigration status inquiry during the process

of a lawful detention or arrest. ("A local entity... may not prohibit or materially limit [a local officer]

from inquiring into the immigration status of a person under a lawful detention or arrest.") § 752.053.

Further, SB 4 does not give local officers authority to stop or detain a person solely for the purpose of

making an immigration inquiry, as such action would likely be unconstitutional. Arizona, 567 U.S. at 413

("Detaining individuals solely to verify their immigration status would raise constitutional concerns").

Moreover, if during a lawful detention or arrest an officer obtains information that a detained or arrested

individual is undocumented, he may not arrest the individual on this basis or prolong the detention. Id. If

an officer obtains information that an arrestee/detainee is unlawfully present he may onlybut is not

todo required

one thing: share this information with ICE or other local entities. ("A local entity... may

not prohibit or materially limit [a local officer] from "sending the information to or requesting and

receiving information from USCIS or ICE... maintaining the information.., or exchanging information

with another local entity.") § 752.053. In sum, SB 4 gives local officers discretion to inquire and share information but it does not provide them with discretion to act upon the information that they may obtain.

93

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(including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.055, 752.056, and 752.0565 arising therefrom; 4. The prohibition against a pattern or practice that "materially limits" the enforcement
of immigration laws in Tex. Gov't Code § 752.053(a)(2), and any action (including
but not limited to corrective, disciplinary, retaliatory, or punitive action) under § § 752.055, 752.056, and 752.0565 arising therefrom; 5. The requirement that law enforcement agencies "comply with, honor, and fulfill" any immigration detainer request issued by United States Immigration and Customs Enforcement, Tex. Code Crim. Proc. Art. 2.25 1(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under Tex. Gov't Code § 752.055, 752.056, and 752.0565; Tex. Loc. Gov't Code § 87.03 1(c); and Tex. Penal Code § 39.07 arising therefrom.
The Court exercises its discretion to waive the requirement to provide security
under Rule 65(c) of the Federal Rules of Civil Procedure. Corrigan Dispatch Co. v. Casa
Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978) (the trial court "may elect to require no security at all").

( SIGNED this3 O day of August, 2017.

s
i4i'v'f\ \

ORLANDO L. GARCIA CHIEF U.S. DISTRICT JUDGE

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 1 of 16

S.B. No. 4

1

ANACT

2 relating to the enforcement by campus police departments and

3 certain local governmental entities of state and federal laws 4 governing immigration and to related duties and liability of 5 certain persons in the criminal justice system; providing a civil 6 penalty; creating a criminal offense.

7

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

8 ARTICLE 1. POLICIES OF AND GRANT PROGRAMS FOR LOCAL ENTITIES AND

9

CAMPUS POLICE DEPARTMENTS

10

SECTION 1.01. Chapter 752, Government Code, is amended by

11 adding Subchapter C to read as follows:

12 SUBCHAPTER C. ENFORCEMENT OF STATE AND FEDERAL IMMIGRATION LAWS BY

13

LOCAL ENTITIES AND CAMPUS POLICE DEPARTMENTS

14

Sec. 752.051. DEFINITIONS. In this subchapter:

15

(1) "Campus police department" means a law enforcement

16 agency of an institution of higher education.

17

(2) "Immigration laws" means the laws of this state or

18 federal law relating to aliens, immigrants, or immigration,

19 including the federal Immigration and Nationality Act (8 U.S.C.

20 Section 1101 et seq.).

21

(3) "Institution of higher education" means:

22

(A) an institution of higher education as defined

23 by Section 61.003, Education Code; or

24

(B) a private or independent institution of

1

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 2 of 16

S.B. No. 4

]. higher education as defined by Section 61.003, Education Code.

2

(4) "Lawful detention" means the detention of an

3 individual by a local entity, state criminal justice agency, or

4 campus police department for the investigation of a criminal

5 offense. The term excludes a detention if the sole reason for the

6 detention is that the individual:

7

(A) is a victim of or witness to a criminal

8 offense; or

9

(B) is reporting a criminal offense.

10

(5) "Local entity" means:

11

(A) the governing body of a municipality, count

12 or sDecial district or authority. sub-ject to Section 752.052;

13

(B) an officer or employee of or a division,

14 department, or other body that is part of a municipality, county, or

15 special district or authority, including a sheriff, municipal

16 police department, municipal attorney, or county attorney; and

17

(C) a district attorney or criminal district

18 attorney.

19

(6) "Policy" includes a formal, written rule, order,

20 ordinance, or policy and an informal, unwritten policy.

21

Sec. 752.052. APPLICABILITY OF SUBCHAPTER.

(a) This

22 subchapter does not apply to a hospital or hospital district

23 created under Subtitle C or D, Title 4, Health and Safety Code, a

24 federally qualified health center as defined in Section 31.017,

25 Health and Safety Code, a hospital owned or operated by an 26 institution of higher education, or a hospital district created

27 under a general or special law authorized by Article IX, Texas

2

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 3 of 16

S.B. No. 4
1 Constitution, to the extent that the hospital or hospital district 2 is providing access to or delivering medical or health care 3 services as required under the following applicable federal or 4 state laws:

5

(1) 42 U.S.C. Section l395dd1

6

(2) 42 U.S.C. Section 1396b(v);

7

(3) Subchapter C, Chapter 61, Health and Safety Code;

8

(4) Chapter 81, Health and Safety Code; and

9

(5) Section 311.022, Health and Safety Code.

10

(b) Subsection (a) excludes the application of this

11 subchapter to a commissioned peace officer:

12

(1) employed by a hospital or hospital district during

13 the officer's employment: or

14

(2) commissioned by a hospital or hospital district.

15

(c) This subchapter does not apply to a conimissioned peace

16 officer employed or contracted by a religious organization during

17 the officer's employment with the organization or while the officer

18 is performing the contract.

19

(d) This subchapter does not apply to a school district or

20 open-enrollment charter school, including a peace officer employed

21 or contracted by a district or charter school during the officer's

22 employment with the district or charter school or while the officer

23 is performing the contract. This subchapter does not apply to the

24 release of information contained in educational records of an

25 educational agency or institution, except in conformity with the

26 Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 27 Section 1232g).

3

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 4 of 16

S.B. No. 4

1

(e) This subchapter does not apply to the public health

2 department of a local entity.

3

(f) This subchapter does not apply to:

4

(1) a community center as defined by Section 571.003,

5 Health and Safety Code; or

6

(2) a local mental health authority as defined by

7 Section 531.002, Health and Safety Code.

8

Sec. 752.053. POLICIES AND ACTIONS REGARDING IMI4IGRATION

9 ENFORCEMENT. (a) A local entity or campus police department may

10 not:

11

(1) adopt, enforce, or endorse a policy under which

12 the entity or department prohibits or materially limits the

13 enforcement of immigration laws;

14

(2) as demonstrated by pattern or practice, prohibit

15 or materially limit the enforcement of immigration laws; or

16

(3) for an entity that is a law enforcement agency or

17 for a department, as demonstrated by pattern or zractice

18 intentionally violate Article 2.251, Code of Criminal Procedure.

19

(b) In compliance with Subsection (a), a local entity or

20 campus police department may not prohibit or materially limit a

21 person who is a commissioned peace officer described by Article

22 2.12, Code of Criminal Procedure, a corrections officer, a booking

23 clerk, a magistrate, or a district attorney, criminal district

24 attorney, or other prosecuting attorney and who is employed by or

25 otherwise under the direction or control of the entity or

26 department from doing any of the following:

27

(1) inquiring into the immigration status of a person

4

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 5 of 16

S.B. No. 4

1 under a lawful detention or under arrest;

2

(2) with respect to information relating to the

3 immigration status, lawful or unlawful, of any person under a

4 lawful detention or under arrest, including information regarding

5 the person's place of birth:

6

(A) sending the information to or requesting or

7 receiving the information from United States Citizenship and

8 Immigration Services, United States Immigration and Customs

9 Enforcement, or another relevant federal agency;

10

(B) maintaining the information; or

11

(C) exchanging the information with another

12 local entity or campus police department or a federal or state

13 governmental entity;

14

(3) assisting or cooperating with a federal

15 immigration officer as reasonable or necessary, including

16 providing enforcement assistance; or

17

(4) permitting a federal immigration officer to enter

18 and conduct enforcement activities at a jail to enforce federal

19 immigration laws.

20

(c) Notwithstanding Subsection (b)(3), a local entity or

21 campus police department may prohibit persons who are employed by

22 or otherwise under the direction or control of the entity or

23 department from assisting or cooperating with a federal immigration

24 officer if the assistance or cooperation occurs at a place of

25 worship.

26

Sec. 752.054. DISCRIMINATION PROHIBITED. A local entity,

27 campus police department, or a person employed by or otherwise

5

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 6 of 16
6

S.B. No. 4

1 under the direction or control of the entity or department may not

2 consider race, color, religion, language, or national origin while

3 enforcing immigration laws except to the extent permitted by the

4 United States Constitution or Texas Constitution.

5

Sec. 752.055. COMPLAINT; EQUITABLE RELIEF.

(a) Any

6 citizen residing in the jurisdiction of a local entity or any

7 citizen enrolled at or employed by an institution of higher

8 education may file a complaint with the attorney general if the

9 person asserts facts supporting an allegation that the entity or

10 the institution's campus police department has violated Section

11 752.053. The citizen must include a sworn statement with the

12 complaint stating that to the best of the citizen's knowledge, all

13 of the facts asserted in the complaint are true and correct.

14

(b) If the attorney general determines that a complaint

15 filed under Subsection (a) against a local entity or campus police

16 department is valid, the attorney general may file a petition for a

17 writ of mandamus or apply for other appropriate equitable relief in

18 a district court in Travis County or in a county in which the

19 principal office of the entity or department is located to compel

20 the entity or department that is suspected of violating Section

21 752.053 to comply with that section.

22

(c) An appeal of a suit brought under Subsection (b) is

23 governed by the procedures for accelerated appeals in civil cases

24 under the Texas Rules of Appellate Procedure. The appellate court

25 shall render its final order or judgment with the least possible

26 delay.

27

Sec. 752.056. CIVIL PENALTY. (a) A local entity or campus

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 7 of 16

S.B. No. 4
1 police department that is found by a court of law as having 2 intentionally violated Section 752.053 is subject to a civil 3 penalty in an amount:

4

(1) not less than $1,000 and not more than $1,500 for

5 the first violation; and

6

(2) not less than $25,000 and not more than $25,500 for

7 each subsequent violation.

8

(b) Each day of a continuing_violation of Section 752.053

9 constitutes a separate violation for the civil penalty under this

10 section.

11

Cc) The court that hears an action brought under Section

12 752.055 against the local entity or campus police department shall

13 determine the amount of the civil penalty under this section.

14

Cd) A civil penalty collected under this section shall be

15 deposited to the credit of the compensation to victims of crime fund

16 established under Subchapter B, Chapter 5, Code of Criminal

17 Procedure.

18

Ce) Sovereign immunity of this state and governmental

19 immunity of a county and municipality to suit is waived and

20 abolished to the extent of liability created by this section.

21

Sec. 752.0565. REMOVAL FROM OFFICE. (a) For purposes of

22 Section 66.001, Civil Practice and Remedies Code, a person holding

23 an elective or appointive office of a political subdivision of this

24 state does an act that causes the forfeiture of the person's office

25 if the person violates Section 752.053.

26

(b) The attorney general shall file a petition under Section

27 66.002, Civil Practice and Remedies Code, against a public officer

7

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 8 of 16

S.B. No. 4
1 to which Subsection (a) applies if presented with evidence,

2 including evidence of a statement by the public officer, 3 establishing probable grounds that the public officer engaged in

4 conduct described by Subsection (a). The court in which the S petition is filed shall give precedence to proceedings relating to 6 the petition in the same manner as provided for an election contest

7 under Section 23.101.

8

(c) If the person against whom an information is filed based

9 on conduct described by Subsection (a) is found guilty as charged,

10 the court shall enter judgment removing the person from office.

11

Sec. 752.057. COMMUNITY OUTREACH POLICY. (a) Each law

12 enforcement agency that is subject to the requirements of this

13 subchapter may adopt a written policy requiring the agency to 14 perform community outreach activities to educate the public that a
15 pace officer may not inquire into the immigration status of a

16 victim of or witness to an alleged criminal offense unless, as

17 provided by Article 2.13, Code of Criminal Procedure, the officer

18 determines that the inquiry is necessary to:

19

(1) investigate the offense; or

20

(2) provide the victim or witness with information

21 about federal visas designed to protect individuals providing

22 assistance to law enforcement.

23

(b) A policy adopted under this section must include

24 outreach to victims of:

25

(1) family violence, as that term is defined by

26 Section 71.004, Family Code, including those receiving services at

27 family violence centers under Chapter 51, Human Resources Code; and

8

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 9 of 16
)

S.B. No. 4

1

(2) sexual assault, including those receiving

2 services under a sexual assault program, as those terms are defined

3 by Section 420.003.

4

SECTION 1.02. Subchapter A, Chapter 772, Government Code,

5 is amended by adding Section 772.0073 to read as follows:

6

Sec. 772.0073. ENFORCEMENT OF IMMIGRATION LAW GRANT

7 PROGRAM. (a) In this section:

8

(1) "Criminal justice division" means the criminal

9 justice division established under Section 772.006.

10

(2) "Immigration detainer request" means a federal

11 government request to a local entity to maintain temporary custody

12 of an alien, including a United States Department of Homeland

13 Security Form 1-247 document or a similar or successor form.

14

(3) "Immigration laws" means the laws of this state or

15 federal law relating to aliens, immigrants, or immigration,

16 including the federal Immigration and Nationality Act (8 U.S.C.

17 Section 1101 et seq.).

18

(4) "Local entity" means a municipality or county.

19

(b) The criminal justice division shall establish and

20 administer a competitive grant program to provide financial

21 assistance to local entities to offset costs related to:

22

(1) enforcing immigration laws; or

23

(2) complying with, honoring, or fulfilling

24 immigration detainer requests.

25

(C) The criminal justice division shall establish:

26

(1) eligibility criteria for grant applicants;

27

(2) grant application procedures;

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 10 of 16

S.B. No. 4

3.

(3) criteria for evaluating grant applications and

2 awarding grants;

3

(4) guidelines related to grant amounts; and

4

(5) procedures for monitoring the use of a grant

5 awarded under this section and ensuring compliance with any

6 conditions of the grant.

7

(d) The criminal justice division may use any revenue

8 available for purposes of this section.

9

ARTICLE 2. DUTIES OF LAW ENFORCEMENT AGENCIES AND JUDGES

10

SECTION 2.01. Chapter 2, Code of Criminal Procedure, is

11 amended by adding Article 2.251 to read as follows:

12

Art. 2.251. DUTIES RELATED TO IMMIGRATION DETAINER

13 REQUESTS. (a) A law enforcement agency that has custody of a 14 person subject to an immigration detainer request issued by United 15 States Immigration and Customs Enforcement shall:

16

(1) comply with, honor, and fulfill any request made

17 in the detainer request provided by the federal government; and

18

(2) inform the person that the person is being held

19 pursuant to an immigration detainer request issued by United States

20 Immigration and Customs Enforcement.

21

(b) A law enforcement agency is not required to perform a

22 duty imposed by Subsection (a) with respect to a person who has 23 provided proof that the person is a citizen of the United States or

24 that the person has lawful immigration status in the United States,

25 such as a Texas driver's license or similar government-issued

26 identification.

27

SECTION 2.02. Chapter 42, Code of Criminal Procedure, is

10

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 11 of 16
b

S.B. No. 4

1 amended by adding Article 42.039 to read as follows:

2

Art. 42.039. COMPLETION OF SENTENCE IN FEDERAL CUSTODY.

3 (a) This article applies only to a criminal case in which:

4

(1) the judgment requires the defendant to be confined

5 in a secure correctional facility; and

6

(2) the defendant is subject to an immigration

7 detainer request.

8

(b) In a criminal case described by Subsection (a), the

9 judge shall, at the time of pronouncement of a sentence of

10 confinement, issue an order requiring the secure correctional

11 facility in which the defendant is to be confined and all

12 appropriate government officers, including a sheriff, a warden, or

13 members of the Board of Pardons and Paroles, as appropriate, to

14 require the defendant to serve in federal custody the final portion

15 of the defendant's sentence, not to exceed a period of seven days,

16 following the facility's or officer's determination that the change

17 in the place of confinement will facilitate the seamless transfer

18 of the defendant into federal custody. In the absence of an order

19 issued under this subsection, a facility or officer acting under

20 exigent circumstances may perform the transfer after making the

21 determination described by this subsection. This subsection 22 applies only if appropriate officers of the federal government 23 consent to the transfer of the defendant into federal custody under

24 the circumstances described by this subsection.

25

(c) If the applicable information described by Subsection

26 (a)(2) is not available at the time sentence is pronounced in the

27 case, the judge shall issue the order described by Subsection (b) as

11

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 12 of 16

S.D. No. 4

1 soon as the information becomes available. The ludcie retains

2 jurisdiction for the purpose of issuing an order under this

3 article.

4

(d) For purposes of this article, "secure correctional

5 facility" has the meaning assigned by Section 1.07, Penal Code.

6

ARTICLE 3. DEFENSE OF LOCAL ENTITIES BY ATTORNEY GENERAL

7

SECTION 3.01. Subchapter B, Chapter 402, Government Code,

8 is amended by adding Section 402.0241 to read as follows:

9

Sec. 402.0241. DEFENSE OF LOCAL ENTITIES IN SUITS RELATED

10 TO IMMIGRATION DETAINER REQUESTS. (a) In this section, "local

11 entity" has the meaning assigned by Section 752.051.

12

(b) The attorney general shall defend a local entity in any

13 action in any court if:

14

(1) the executive head or governing body, as

15 applicable, of the local entity requests the attorney general's

16 assistance in the defense; and

17

(2) the attorney general determines that the cause of

18 action arises out of a claim involving the local entity's

19 good-faith compliance with an immigration detainer request

20 required by Article 2.251, Code of Criminal Procedure.

21

(c) If the attorney general defends a local entity under

22 Subsection (b), the state is liable for the expenses, costs,

23 judgment, or settlement of the claims arising out of the

24 representation. The attorney general may settle or compromise any 25 and all claims described by Subsection (b) (2). The state may not be 26 liable for any expenses, costs, judgments, or settlements of any 27 claims against a local entity not being represented by the attorney

12

0 Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 13 of 16

1 general under Subsection (b).

S.B. No. 4

2

ARTICLE 4. SURETY BOND

3

SECTION 4.01. Article 17.16, Code of Criminal Procedure, is

4 amended by amending Subsection (a) and adding Subsection (a-i) to

5 read as follows:

6

(a) A surety may before forfeiture relieve the surety of the

7 surety's undertaking by:

8

(1) surrendering the accused into the custody of the

9 sheriff of the county where the prosecution is pending; or

10

(2) delivering to the sheriff of the county in which

11 the prosecution is pending and to the office of the prosecuting

12 attorney an affidavit stating that the accused is incarcerated in

13

(A) federal custody, subject to Subsection

14 (a-i);

15

(B) (4-ft] the custody of any stateL[-,.) or

16

(C) [4k) any county of this state.

17

(a-i) For purposes of Subsection (a) (2), the surety may not

18 be relieved of the surety's undertaking if the accused is in federal

19 custody to determine whether the accused is lawfully present in the

20 United States.

21

ARTICLE 5. PROHIBITED CONDUCT BY SHERIFF OR CONSTABLE

22

SECTION 5.01. Section 87.031, Local Government Code, is

23 amended by adding Subsection (c) to read as follows:

24

(c) For purposes of Subsection (a), "a misdemeanor

25 involving official misconduct" includes a misdemeanor under

26 Section 39.07, Penal Code.

27

SECTION 5.02. Chapter 39, Penal Code, is amended by adding

13

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 14 of 16

S.B. No. 4

1 Section 39.07 to read as follows:

2

Sec. 39.07. FAILURE TO COMPLY WITH IMMIGRATION DETAINER

3 REQUEST. (a) A person who is a sheriff, chief of police, or

4 constable or a person who otherwise has primary authority for

5 administering a jail commits an offense if the person:

6

(1) has custody of a person subject to an immigration

7 detainer request issued by United States Immigration and Customs

8 Enforcement; and

9

(2) knowingly fails to comply with the detainer

10 request.

11

(b) An offense under this section is a Class A misdemeanor.

12

(c) it is an exception to the application of this section

13 that the person who was subject to an immigration detainer request

14 described by Subsection (a)(l) had provided proof that the person

15 is a citizen of the United States or that the person has lawful

16 immigration status in the United States, such as a Texas driver's

17 license or similar government-issued identification.

18

ARTICLE 6. INQUIRY BY PEACE OFFICER REGARDING IMMIGRATION OR

19

NATIONALITY OF CRIME VICTIM OR WITNESS

20

SECTION 6.01. Article 2.13, Code of Criminal Procedure, is

21 amended by adding Subsections (d) and (e) to read as follows:

22

(d) Subject to Subsection (e), in the course of

23 investigating an alleged criminal offense, a peace officer may

24 inquire as to the nationality or immigration status of a victim of

25 or witness to the offense only if the officer determines that the

26 inquiry is necessary to:

27

(1) investigate the offense; or

14

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 15 of 16

S.B. No. 4

1

(2) provide the victim or witness with information

2 about federal visas designed to protect individuals providing

3 assistance to law enforcement.

4

(e) Subsection (d) does not prevent a peace officer from:

5

(1) conducting a separate investigation of any other

6 alleged criminal offense; or

7

(2) inquiring as to the nationality or immigration

8 status of a victim of or witness to a criminal offense if the

9 officer has probable cause to believe that the victim or witness has

10 engaged in specific conduct constituting a separate criminal

11 offense.

12

ARTICLE 7. SEVERABILITY AND EFFECTIVE DATE

13

SECTION 7.01. It is the intent of the legislature that every

14 provision, section, subsection, sentence, clause, phrase, or word

15 in this Act, and every application of the provisions in this Act to

16 each person or entity, are severable from each other. If any

17 application of any provision in this Act to any person, group of

18 persons, or circumstances is found by a court to be invalid for any

19 reason, the remaining applications of that provision to all other

20 persons and circumstances shall be severed and may not be affected.

21

SECTION 7.02. This Act takes effect immediately if it

22 receives a vote of two-thirds of all the members elected to each

23 house, as provided by Section 39, Article III, Texas Constitution.

24 If this Act does not receive the vote necessary for immediate

25 effect, this Act takes effect September 1, 2017.

15

Case 5:17-cv-00404-OLG Document 189-1 Filed 08/30/17 Page 16 of 16

S.B. No. 4

sident of the Senate I hereby certify that S.B.

8ker4u?
. 4 passed the Senate on

February 8, 2017, by the following vote: Yeas 20, Nays 10; and that

the Senate concurred in House amendments on May 3, 2017, by the

following vote: Yeas 20, Nays 11.

Secretary1Df 't'..e..$'enate I hereby certify that S.B. No. 4 passed the House, with amendments, on April 27, 2017, by the following vote: Yeas 94, Nays 53, one present not vot

Approved:
20/7 5_:_ 7.-

FILED IN THE OFFICE OF THE SECRETARY OF STATE
(.40.?vi_.o.CLocK
Secretary of State
16

 
 Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, et al., Plaintiffs,
v.
State of Texas, et aL, Defendants.

§ Civil Action No. 5:17-cv-404-OG

§

[Lead Case]

§

§

§ Civil Action No. 5:17-cv-459-OG

§

[Consolidated Case]

§

§

§ Civil Action No. 5:17-cv-489-OG

§

IConsolidated Case]

BRIEF OF AMICJ CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Noel Suniga, Esq. 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Raed Gonzalez, Esq.* 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Naimeh Salem, Esq.* 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Counselsfor Amicus Curiae
* Pending Pro Hac Vice Permission

I . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 2 of 13
TABLE OF CONTENTS

TABLE OF CONTENTS

. i

TABLE OF AUTHORITIES .......................................................................... ii

CORPORATE DISCLOSURE STATEMENT ..............................................

INTERESTS OF AMICUS ............................................................................. 1

ARGUMENT .................................................................................................. 2

CONCLUSION ............................................................................................... 6

. Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 3 of 13
TABLE OF AUTHORITIES U.S. Constitution
Art.1,8,c1.4 ........................................................................................................... 2
U.S. Supreme Court Decisions
Amoco Production Co. v. Gambell, 480 U.S. 531 (1987) ........................................ 6 Arizona v. United States, 567 U.S. 387 (2012) ......................................................... 2 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ............................................. 6
Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7 (2008) ........................................ 6 Federal Statutes 8 Usc § 1 101(a)(15)(T)(i)(III) ................................................................................. 4 8 usc § 1101 (a)( 1 5)(U)(i)(III) ................................................................................. 4 8 usc § 1 154(a)(1)(A)(iii) ....................................................................................... 4 8 usc § 1 154(a)(1)(A)(iv) ........................................................................................ 4 8 usc § 1 154(a)(1)(B)(ii) ......................................................................................... 4 8 usc § 1 154(a)(1)(B)(iii) ........................................................................................ 4 Other Federal Authorities Violence Against Women Act of 1994, Pub. L. No. 103-322 .................................. 1 Trafficking Victims Protection Act of 2000, Div. A of PL 106-386 ........................ 1 State Authorities Texas code of criminal Procedure, Art. 2.13(d) ...................................................... 5

Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 4 of 13

. 2.13(e). Texas Code ofCriminal Procedure, Art.

5

Other Authorities

"Violence Protection Act of 2000 (VTVPA) Policy Memorandum #22--'T and 'U

Nonimmigrant Visas," Memorandum, Michael Pearson, Office of Field

Operations (Aug. 30, 2001)................................................................................... 3

"Interim Guidance Relating to Office Procedure Following Enactment of VAWA

2005," Memorandum, Director John P. Torres, Office of Detention; and Director

Marcy M. Forman, Office of Investigations (Jan. 22, 2007) ................................ 3

. . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 5 of 13
CORPORATE DISCLOSURE STATEMENT Pursuant to FRAP 26.1, there is no parent corporation and no publicly held corporation that owns 10% or more of Gonzalez Olivieri, LLC stock.
INTERESTS OF AMICUS Gonzalez Olivieri, LLC is a law firm with its corporate offices located in Houston, Texas specializing in the U.S. Immigration and Nationality Law and is fully dedicated to representing clients that are either immigrants or intended immigrants, as well as their close family members, who either reside in or have strong familial ties to the State of Texas. One of the sub-specialties of Gonzalez Olivieri, LLC is work that includes assistance to immigrants, pro bono as well as for remuneration, who are or were victims of crime and, as a result, are eligible to seek some redress and legal protection through lawful means allowed to them by the U.S. immigration laws. Examples of such assistance include applications that became possible following the passage of the Violence Against Women Act of 1994, Pub. L. No. 103-322, §40701-03, 108 Stat. 1796, 1953-55 (VAWA); and legal assistance to trafficking victims and crime victims under the Trafficking Victims Protection Act of 2000, Div. A of PL 106-386, 114 Stat. 1464 (TVPA), as well as their subsequent reauthorizations by Congress.

O Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 6 of 13
In light ofthe fact that Gonzalez Olivieri, LLC strongly believes that the Texas
Senate Bill 4 (SB4), that was signed into law by the Texas Governor Greg Abbott and is set to come into force on September 1, 2017, will have significant detrimental
effect on immigrants who are or were victims of crime; Gonzalez Olivieri, LLC, as a legal representative of its many clients, does have a legitimate source of authority
to file this brief. Gonzalez Olivieri LLC, through undersigned counsel, also states that no
counsel for any party in this case authored this brief in whole or in part; or made any monetary contribution for purposes of funding the preparation and submission of this brief; nor did any other person make any monetary contribution or contribution towards this amicus curiae brief's preparation or submission.
ARGUMENT It is well established that when it comes to immigration issues the U.S. Constitution gives the Federal Government power to "establish an uniform Rule of Naturalization," Art. I, § 8, ci. 4. In fact "State laws are preempted when they conflict" with Federal immigration law, encompassing situations where they "conflict with the method of enforcement" or "where the challenged state law stands as an obstacle to the
accomplishment and execution ofthe full purposes and objectives of Congress." See
Arizona v. United States, 567 U.S. 387, 399, 406 (2012).

. I Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 7 of 13
Texas passing of SB4 essentially created such an obstacle to the accomplishment of Congress' aims, especially when it comes to the delicate balance Congress intended to strike between enforcement of immigration law and protection of individuals who are, while being undocumented immigrants, also happened to be victims of crime.
Specifically, Congress enacted both VAWA and TVPA with two main goals
in mind: (1) to protect and empower victims of crimes, including domestic and sexual violence, victims of trafficking and other serious criminal activities, by affording them a way of obtaining public benefits available to crime victims and by creating a passage of gaining legal status in the United States; and (2) to insure that
law enforcement personnel on all levels, from federal to local, had valuable assistance and help from immigrant victims and their communities in investigation
and prosecution of criminals that targeted this vulnerable group within the American Society. See e.g. "Violence Protection Act of 2000 (VTVPA) Policy Memorandum #22--'T and 'U Nonimmigrant Visas," Memorandum, Michael Pearson, Office of
Field Operations (Aug. 30, 2001); "Interim Guidance Relating to Office Procedure
Following Enactment of VAWA 2005," Memorandum, Director John P. Tones, Office of Detention; and Director Marcy M. Forman, Office of Investigations (Jan.
22, 2007).

n Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 8 of 13
In order to demonstrate eligibility for relief under VAWA or TVPA, these laws require immigrants who apply for their benefits to provide evidence of abuse or crime that was committed against them; or to assist law enforcement in investigating and. in prosecuting said crimes.
For example, the statute provides that a VAWA applicant must demonstrate that he or she resided with an abusive spouse and was battered or subject to extreme cruelty during the marriage. 8 Usc § 1 154(a)(1)(A)(iii)-(iv); (B)(ii)-(iii).
Victims of trafficking are required to prove that they have assisted in the investigation or prosecution of such trafficking or in the investigation of crimes where acts of trafficking are at least one central reason for the crime. 8 Usc §
1101 (a)( 1 5)(T)(i)(III).
Similarly, victims of crimes are required to show that they have been helpful, are being helpful, or are likely to be helpful to "a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or
prosecuting criminal activity." 8 USC § 1101 (a)( 1 5)(U)(i)(III) (emphasis added). These are all statutory requirements and without complying with them,
immigrants are not able to obtain the benefits that are available pursuant to VAWA or TVPA.

O . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 9 of 13
At the same time, it appears that provisions of SB4 do not completely
protected individuals seeking assistance from their local law enforcement personnel
from being questioned about their immigration status even if they are victims of a crime. See Texas Code of Criminal Procedure, Art. 2.13(d).
While, SB4 attempts to protect victims and witnesses who come to law enforcement to report criminal activity from being questioned about their immigration status, it is at the same time provides an interviewing officer with a
broad discretion to inquire into immigration status of individual that came forward with said information, if necessary to investigate an offense or to conduct an investigation of some other crime; which in turn could lead to such person being
referred or reported to the immigration authorities for possible detention and
initiation of a process for their deportation. See Texas Code of Criminal Procedure,
Art. 2.13(e). This approach is contrary to Congressional intent to protect immigrants who
are victims of crime and will simply defeat the purpose of VAWA and TVPA as a whole. In fact, if SB4 is allowed to come into force, Amicus will find it very hard
in good faith to encourage its clients to report to local Texas law enforcement
authorities any incident that lead to an offense committed against them, in light of a
very real danger that such clients could end up facing removal proceedings following such a report.

. . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 10 of 13
This would result in an absurd outcome where crime victims will forgo any protections afforded to them by Federal law and at the same time will allow criminal elements to go unpunished for their illegal acts.
In sum, Amicus firmly believes that SB4 clearly in violation of the intent of
Federal Government when it comes to implementation, execution and enforcement
of immigration laws, i.e. it is in clear violation of the U.S. Constitution's Supremacy
Clause.
Therefore, injunction of SB4 coming into force is warranted, because
Plaintiffs are likely to succeed on the merits, that without such an injunction many
immigrants, especially those who are victims of crimes, are likely to suffer harm in the absence of such a relief, that the balance of equities overall do tip in the favor of
the Plaintiffs, and that such an injunction is in the public interest, as it will at the very least insure continued cooperation between the immigrants and the State and
local law enforcement authorities. See Winter v. Nat. Res. Def Council, Inc., 129 S.
Ct. 365, 376 (2008); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. 5. 305, 311-312 (1982).
CONCLUSION For aforesaid reasons, as well as for the reasons stated in the Plaintiffs' briefs, the Plaintiffs' request for preliminary injunction should be granted.

. . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 11 of 13
Respectfully submitted,
GONZALEZ OLIVIERI, LLC
By:
Noel Suniga, Esq. 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Raed Gonzalez, Esq.* 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Nairneh Salem, Esq.* 2200 Southwest Freeway, Suite 550 Houston, TX 77098 713-481-3040 Phone 713-588-8683 Fax
Counsels for Amicus Curiae
* Pending Pro Hac Vice Permission

. . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 12 of 13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day ofAugust 2, 2017,1 filed the foregoing
Amicus Brief via certified mail and was duly served via the same on all counsel to
the following addresses:
Cecillia D. Wang Cody H. Wofsy Stephen Kang AMERICAN CIVIL LIBERTIES UNTON FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770
cwangaclu.org cwofsyac1u.org
Attorneys for the Plaintiffs
Attorneys for Plaintiff City of El Cenizo, Texas
Ken Paxton, Attorney General of Texas
Jeffrey C. Mateer, First Assistant Attorney General Brantley D. Starr, Deputy First Assistant Attorney General Michael C. Toth, Special Counsel to the First Assistant Attorney General Andrew D. Leonie, Associate Deputy Attorney General Austin R. Nimocks, Associate Deputy Attorney General
David J. Hacjer, Senior Counsel, Office of Special Litigation
Darren McCarty, Special Counsel for Civil Litigation
Office of Special Litigation
P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel.: (512) 936-1414 Fax: (512) 936-0545
darren.mccartyoag.texas.gov
Attorneys for Texas
Noel Suniga,

. . Case 5:17-cv-00404-OLG Document 195 Filed 09/07/17 Page 13 of 13
CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(g)(1), the undersigned counsel certifies this brief complies with the type-volume limitations contained in FRAP 32. 1. Exclusive of the portions exempted in FRAP 32(f), the brief contains 1,333
words.
2. The briefwas prepared using proportionally spaced typefaces using Microsoft Word in Times New Roman 14 Point Font.
3. An electronic copy of the brief in .pdf fomiat is being submitted to the Court
and opposing counsel.
4. The undersigned understands that a material misrepresentation in completing
this certificate or circumvention of the type-volume limits in FRAP 32 may result in the court striking the brief and imposing sanctions agaJst the person
signing the brief.
Noel Suniga, Esq.

 
 Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

City of El Cenizo, Texas et al.,
Plaintiffs,
v.
State of Texas, et al.,
Defendants.

§
§
§
§
§
§ Civil Case No. 5:17-cv-00404-OLG
§
§
§
§

BRIEF OF AMICUS CURIAE NATIONAL COMISSION ON HUMAN RI(HTS OF
MEXICO IN SUPPORT OF PLAINTIFFS

I. INTRODUCTION
The National Human Rights Commission of Mexico extends an amicus curiae letter to assist the plaintiffs in the litigation underway against the entry into force of Law SB4 passed by the Texas State Legislature of the United States of America.
The National Human Rights Commission is a Mexican autonomous constitutional body responsible, among other things, for the protection, enforcement, advocacy, study and
promotion of the human rights of Mexican peoples. In view of its duties, the National Commission presents this amicus curiae with the aim of making a useful contribution to the respect of the rights of migrant persons in the state of Texas.
This amicus curiae will discuss four issues that contend the unconstitutionality of Law 5B4. The first section will analyze the vagueness of Law SB4; the second will address the issue of arbitrary detentions; the third will elaborate on the discriminatory content of
Law SB4 and lastly, the fourth section will point at the effects Law SB4 would have on the
right to freedom of expression and religious freedom.

II. VAGUENESS OF LAW SB4

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 2 of 11
The National Commission believes that Law SB4 does not adequately regulate the
legal concept of lawful detention and uses broad terms that allow its enforcement to be
arbitrary and discriminatory. This makes the law unconstitutionally vague and,
consequently, in violation of the Fourteenth Amendment of the US Constitution. In the case of Women 's Med. Ctr. OfNw. Houston vs. Bell, the United States Court
of Appeals for the Fifth Circuit in Texas held that due process is guaranteed by the Fourteenth Amendment of the US Constitution, which "proscribes laws so vague that 'persons of common intelligence must necessarily guess at [their] meaning and differ as to
[their] application."1
Likewise, the US Court of Appeals for the Fifth Circuit stated that the consolidated norm used to assess whether a law is unconstitutionally vague consists of whether the law:2
(1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or
(2) is so indefinite that it allows arbitrary and discriminatory
enforcement.
Law SB4 only uses the term "lawful detention" on three occasions. The first time, it is used to cursorily define what should be understood by lawful detention.3 The term appears two more times in the section stating that a local entity or campus police department "may not prohibit or materially limit" certain authorities from inquiring into the
immigration status or place of birth of a person under "lawful detention" or under arrest.4
Women's Med Ctr. Of Nw. Houston vs. Bell, 248 F.3d 411, 421 (5th Cir. 2001).
2
'Lawful detention" means the detention ofan individual by a local entity, state criminaljustice agency, or campus police department for the investigation of a criminal offense. The term excludes a detention if the sole reason for the detention is that the individual: (a) is a victim of or witness to a criminal offense; or (b) is reporting a criminal offense.
a local entity or campus police department may not prohibit or materially limit a person who is a commissioned peace officer described by Article 2.12, Code of Criminal Procedure, a corrections officer, a booking clerk, a magistrate, or a district attorney, criminal district attorney, or other prosecuting attorney and who is employed by or otherwise under the direction or control of the entity or department from doing any ofthefollowing: (1) inquiring into the immigration status ofa person under a lawful detention or under arrest;

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 3 of 11
With a regulation based on simply three mentions, it is clear that the incidence of
the term lawful detention in Law SB4 is practically nonexistent as the law only succinctly
defines the legal concept and establishes the duty of authorities regarding persons who are already found under lawful detention. As a result, the lack of regulation on "lawful
detention" makes it possible for authorities to act arbitrarily since the law does not clearly specify and define the conditions under which detentions should be made for them to be deemed lawful.
It is noteworthy that the legislation does not specify that in order to carry out a lawful detention, authorities must comply with the criterion of "reasonable suspicion", as
set forth in the Fourth Amendment of the US Constitution and in Article 1, Section 9 of the Texas Constitution, according to the recent criteria of the US Court of Appeals for the Fifth
Circuit.5
The vagueness with which the legal concept of "lawful detention" was worded in Law 5B4 is unconstitutional because it does not clearly and explicitly regulate the powers and norms authorities must follow when carrying out a detention. This is essential for giving legal certainty to the actions of the enforcing authorities and to the exercise of human rights. The mentioned inadequacy of the statute will obligate authorities to fill the gap in the law with their own interpretation. This, in turn, will lead to ambiguities, conjectures, different applications and, in many cases, discrimination by the authorities empowered to enforce said law.
For instance, the way in which the legal concept of lawful detention is regulated in
Law SB4 allows authorities to detain any person walking on the street in an arbitrary and
discriminatory way, without any formality and under the excuse of investigating a crime. Moreover, it allows these authorities to ask about the person's immigration status and/or place of birth.
Because of the above reasons, the National Commission thinks that the second criterion to determine that a law is unconstitutionally vague has been updated by the US Circuit Court of Appeals for the Fifth Circuit. We believe that the vagueness with which the
(2) with respect to information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest, including information regarding the person 's place of birth:"
US. v. Monsivais, No. 15-10357, slip op. at 3-4 (5th Cir. Feb. 2, 2017)

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 4 of 11
legal concept of lawful detention in Law SB4 was regulated will lead to obligating each of the authorities to fill in the lack of clarity and the gap with his or her own interpretation of
the provision, which will result in arbitrary and discriminatory enforcement. Meanwhile, Law SB4, Section 752.053, Subsection (b) establishes that the
authorities "may not prohibit or materially limit" other authorities from inquiring about the immigration status and place of birth of a person who has been "lawfully detained" or is
under arrest.
The use of words "may not prohibit or materially limit" is ambiguous since it is
left to the authorities to decide whether this phrase gives them tacit authorization to ask any person who is under "lawful detention" or in custody about his or her immigration status
and/or place of birth. Along the same lines, the scope of the terms used allows for the discriminatory
enforcement of the law since it will be the authorities who decide which cases or which
persons under "lawful detention" or in custody, are to be asked about their immigration
status and/or place of birth and who are not. In view of the above, the National Commission believes that the phrase "may not
prohibit or materially limit" as used in SB4 contains broad terms that allow for the arbitrary and discriminatory enforcement of Law SB4 because, as mentioned before, the criterion to determine that a law is unconstitutionally vague was again updated by the US Circuit Court of Appeals for the Fifth Circuit.
Lastly, it is important to point out that severe sanctions, like the high fines or
removal established in Law SB4, for those authorities who are in violation of the prohibition of preventing certain authorities from inquiring about the immigration status and place of birth of a person who is under "lawful detention" or under arrest, will lead to authorities detaining any person at the slightest hint of suspicion and asking every one of them about their immigration status and/or place of birth, given the vagueness of the
wording in the law. This would be done to avoid falling into what could be considered a
violation of Law 5B4 and be subjected to the sanctions established in the law because, logically, no authority would want to be fined or removed from his or her position.
4

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 5 of 11
In accordance with the above, the National Commission believes that the vagueness
of Law SB4 will have serious consequences that would affect the migrant population living in the State of Texas since the wording of the law empowers authorities to make arbitrary and discriminatory decisions to inquire about the immigration status and/or place of birth of
said migrants. For these reasons, it is requested that this Court declare Law 5B4 unconstitutionally
vague, contravening the Fourteenth Amendment of the US Constitution.
III. ARBITRARY DETENTIONS
Law SB4 violates every person's right not to be arbitrarily detained (unreasonable seizure), as set forth in the Fourth Amendment of the US Constitution and in Article 1, Section 9, of the Texas Constitution, by allowing officials to detain a person by using the
excuse of a criminal investigation when the authority actually seeks to restrict the freedom of movement of such person to then inform the federal immigration authorities and for the latter to assume custody of the detained person.
The National Commission believes that once local or campus police officers find
themselves with the power to inquire about persons' immigration status and place of birth, they can incur in a pretextual detention. This type of detention occurs when a law enforcement officer asks an individual to stop or lawfully detains a person for a minor infraction when the officer actually wants to investigate the person for a different offense
for which there is no lawful grounds to make a detention or an arrest.6 Likewise, on finding themselves with the power to inquire about the immigration
status and place of birth of persons, local or campus police officers can incur in prolonged detention. This type of detention occurs when a law enforcement officer stops a person and
on inquiring about the person's immigration status, the latter declares he or she is not in the country legally. When faced with this situation, the detaining officer may decide to call the federal immigration authorities to proceed with the foreigner's deportation out of the United States. Meanwhile, the officer restricts the person's freedom of movement, unduly prolonging the detention.
6 Garcia v. State, 827 S.W.2d 937, 939-940 (Tex.Crim.App.1992).

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 6 of 11
A pretextual detention that is unduly prolonged and whose real purpose is for the
federal immigration authorities to take custody of the person detained violates the rights of
migrants not to be subjected to arbitrary detentions, as set forth in both the Fourth
Amendment of the US Constitution and in Article 1, Section 9 of the Texas Constitution.7
The case law on these provisions establishes that the detaining officer must have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.8 Moreover, the general rule is that an investigative stop should last no longer than
necessary to effect its purpose,9 even if there are no rigid time limitations for this type of detention)° However, once the original purpose of detention is exhausted, that the
reasonable suspicion forming the basis for said detention has been confirmed or dispelled,11 it may not be extended as if it were a "fishing expedition"12 in hopes of fmding out whether other crimes have been committed. Therefore, for instance, once a police officer has fully resolved a traffic violation, said officer may not lawfully detain the driver unless there is an objective reason to suspect the person has committed another offense and this is not provided for in Law SB4.13
Therefore, by allowing local and campus police to carry out pretextual detentions that are unduly extended while waiting for federal immigration authorities to take custody
of the detained person, Law SB4 violates an individual's right not to be arbitrarily detained, as set forth in both the Fourth Amendment of the US Constitution and Article 1, Section 9, of the Texas Constitution.
IV. DISCRIMINATION CONTAINED IN LAW SB4
The National Commission believes that Law SB4 goes against the Fourth Amendment since it is a discriminatory law because its enforcement centers on persons that
7Johnson v. State, 912 S.W.2d 227, 232 (1995); 8Brown v. Texas, 443 U.S. 47,51(1979); Terry v. Ohio, 392 U.S. 1(1968); Rhodes v. State, 945 S.W.2d 115, 117 (1997). 9Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App.1997). '°Kothe v. State, 152 S.W.3d 54, 64 (Tex.Crim.App.2004). '1ROBERT R. BARTON, TEXAS SEARCH AND SEIzURE § 1.02.1 0.4[B] (6th ed. 2015). '2Kelly v. State, 331 S.W.3d 541, 549 (Tex.App. Houston [14 Dist.] 2011). '3ldem

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 7 of 11
local police officers might regard as foreigners. In this case, a person's interrogation, detention and custody will depend on his or her physical traits and racial profile.
The Fourth Amendment states the right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As a result, it would be easy to give way to the differentiated application of Law SB4, which could have repercussions in the form of discriminatory acts since it could be
argued that Law SB4 is impartial and does not establish a clear objective. It will be enforced by using discriminatory criteria that are not valid, such as a person's language,
personal appearance or accent. Therefore, the inhabitants of Texas could be subjected to
unreasonable searches in their persons without any probable cause, but prompted by their racial profile.
To this effect, the National Commission points out that US nationals would also experience detentions based on racial profiling, despite being US citizens. Since both migrants and US citizens could be subjected to detentions that are not founded on probable cause, it can easily assumed that the detentions will depend on persons' physical characteristics and not objective factors that are needed to make a lawful detention.
Moreover, the Equal Protection Clause contained in the Fourteenth Amendment
guarantees any person the equal protection of the laws. The Equal Protection Clause makes it possible to scrutinize measures or laws that could be discriminatory and affect a specific sector of the population. Such scrutiny of the contents of the law must examine every detail that could affect a specific segment of the population.
It is very likely that Law SB4 will function as described above, generating a
disproportionate impact on a sector of the population because of their racial heritage or for
belonging to a particular vulnerable group. The fact that migrants with certain physical characteristics and who speak certain
languages might find themselves at serious risk of being subjected to the effects of a law simply because of their looks is a form of discrimination that violates the principle of

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 8 of 11
equality under the law according to which all citizens must receive equal protection and equal treatment.
In view of this, the National Commission would like to stress that Law SB4 goes
against the Fourth Amendment since it would result in detentions that would not be based on probable cause, but simply motivated by racial profiling.
V. EFFECTS OF LAW SB4 ON FREEDOM OF EXPRESSION AND FREEDOM OF RELIGION
The National Commission believes that SB4 violates the freedom of expression and the autonomy of private or independent institutions of higher education with religious affiliations in the State of Texas by forcing them to cany out the conducts established in said law that go against the fundamental values of these institutions, in addition to contravening the First Amendment of the US Constitution and Article 1, Section 8 of the
Texas Constitution.
The State of Texas has a total of 455 venues of higher education, 112 of which are public and 343 are private. At least 55 of the private institutions have religious affiliations that are mainly variants of Christianity (Baptist, Methodist and Presbyterian).'4
A large number of these universities have fundamental values enshrined in their
institutional missions and internal regulations, which pursue institutional policies that are in
line with their professed religious affiliation. Some of these fundamental values are equality and non-discrimination, the inclusion of all communities, social justice, and peace, among
others.15
Within this context, the National Commission holds that private or independent
institutions of higher education in the State of Texas have religious affiliations and respect fundamental values that are at variance with the obligations imposed by Section 752.053, of
Law SB 4.
14 National Center for Education Statistics, College Navigator. Available at httDs://nces.ed.gov/collegenavigator/?s=TX&ct=3
15 See: University of the incarnate, htt:/www.uiw.edu/missioni, (Aug. 12, 2017), St. Mary's University of San Antonio, https://www.stmarytx.edu/about/# (Aug. 12, 2017); and Our Lady of the Lake University, http://www.olIusa.edu/s/l 1 90/hybrid/defau1thybrid-o11u.aspx?sid=l 1 90&gid=l &pgid=7889, (Aug. 12,
2017).

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 9 of 11
Freedom of expression as established in the First Amendment of the US Constitution, as well as in Article 1, Section 8 of the Texas Constitution recognizes the protection of freedom of expression without government interference. Meanwhile, the
Texas Education Code states that every university should establish "goals consistent with
the role and mission of the institution," (Section 5 1.352) which is revealed in its ability to promulgate its own rules and regulations for the safety and welfare of students, employees,
and property, as well as any other regulations it may deem necessary (Section 51.202) In this particular instance, this freedom and autonomy to promulgate its internal
rules and regulations are embodied in the right of universities and private institutions to
establish their mission and fundamental values like equality and non-discrimination, as well
as the inclusion of all communities. Consequently, in the case of private universities, the enforcement of Law SB4 will
directly affect students and employees, as SB4 will compel the campus police to detain, inquire about immigration status, share information and permit delays in the detention so
that immigration authorities can take custody of selected individuals. This contravenes the
internal university rules and regulations that generally aim at prohibiting discrimination and including all communities.
Therefore, SB4 violates the right to freedom of expression and institutional
autonomy set forth in the First Amendment, as well as in the Texas Constitution and
Education Code, by obligating campus police to cany out certain discriminatory actions that go against the fundamental values of these institutions.
Lastly, Law SB4 violates the First Amendment by infringing upon the freedom of religion of the universities that want to implement policies that protect the rights of
migrants. The National Commission is aware that the First Amendment protects the right to
freedom of religion without government interference. Furthermore, the Free Exercise
Clause prohibits the government from interfering with religious practices. In this vein, Law
SB4 violates the right of religious freedom of those universities that are moved to protect
vulnerable individuals like migrants because these institutions will be prohibited from taking measures to protect and not attack the migrant student population.

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 10 of 11

The Religious Freedom Restoration Act prohibits the federal government from

forcing persons to act against their beliefs. The State of Texas has its own religious freedom

act, which also protects citizens' right to not be forced by state laws to carry out actions that

go against their religious beliefs.

In the case of Burwell vs. Hobby Lobby Inc., 573 U.S.

(2014), the US Supreme

Court declared it unconstitutional to obligate a company with an inherent belief system to

engage in actions or to carry out practices that go against their religious beliefs.

Taking this precedent into account, the National Commission believes that Law SB4

will force universities to go against the religious values enshrined in their vision that seeks

the promotion of equality and the protection of the weak. This constitutes a violation of the

First Amendment and the Texas Religious Freedom Restoration Act.

VI. CONCLUSION AND MEASURES REQUESTED

The National Commission believes that the vagueness in the definition of "lawful
detention", as well as Section 752.053, subsection (b) that establishes its operational use, in
Law SB4, violate the Fourteenth Amendment of the US Constitution.
The National Commission also concludes that Law SB4 goes against the Fourth Amendment by allowing for arbitrary detentions that are not founded on reasonable suspicion.
Likewise, Law SB4 will violate the Fourth Amendment by allowing detentions that would not be based on probable cause, but on racial profiling.
The National Commission would like to highlight the fact that Law SB4 infringes
the First Amendment of the US Constitution, as well as the Texas Constitution and Education Code, by violating the right to freedom of expression and institutional autonomy
in view that it will force universities to act in such a way that goes against the fundamental
values of the institutions. Furthermore, Law SB4 violates the First Amendment of the US Constitution and the
Texas Religious Freedom Restoration Act by obligating universities to act against their values and religious beliefs.

10

Case 5:17-cv-00404-OLG Document 196 Filed 09/07/17 Page 11 of 11
Based on the above, the National Human Rights Commission of Mexico calls for
this Court to: Declare Law SB4 unconstitutional and stop its entry into force.
Suspend the effects of Law 5B4 in such a way that it may not be used
to enact discriminatory measures or force local authorities to adopt such measures.
August 7th, 2017.

National Commission on Human Rights

Periférico Sur 3469, San Jerónimo LIdice,

10200, Mexico City, MEXICO

Phone: (+ 5255)5681 81 25 x 1099

Email:

1rgonza1ez(andh.org.mx;

ecorzo(ccndh.org.rnx

11

 
 Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs,
v. STATE OF TEXAS, et al.,
Defendants.

) ) ) ) ) ) ) Case No. 5:17-cv-404-OLG ) ) ) ) ) ) ) ) )

BRIEF OF AMICUS CURIAE CITY OF SAN MARCOS, TEXAS IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 2 of 12
TABLE OF CONTENTS INTRODUCTION………………………………………………………………………………..i TABLE OF AUTHORITIES...………………………………………………………………….ii STATEMENT OF INTEREST OF AMICUS CURIAE……………………………………….1 INTRODUCTION……………………………………………………………………………….1 ARGUMENT…………………………………………………………………………………….3
I. SB4 is Preempted by Federal Law……………………………………….……..3 II. SB4’s Provisions are Unconstitutionally Vague……………………………….4 III. SB4 Violates the First Amendment Right to Free Speech……………………5 IV. Compliance with SB4 Would Result in Unlawful Seizures In
Violation of the Fourth Amendment and Liability For Texas Cities Under 42 U.S.C. §1983…………………………………………………..6 V. SB4 Will Make Communities in Texas Less Safe…………………………..…7 CONCLUSION………………………………………………………………………………….8
i

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 3 of 12
TABLE OF AUTHORITITIES Cases Arizona v. United States, 132 S. Ct. 2492 (2012)……………………………………….…......3, 6 Connick v. Myers, 461 U.S. 138 (1983)………………………………………………………..…6 FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)……..…….………………………….4 Morales v. Chadbourne, 793 F.3d 208, 217 (1st. Cir. 2015)……………………………….……..6 Pickering v. Board of Education, 391 U.S. 563 (1968)……..…………………………………5, 6 Santoyo v. United States, No. 16-855 (W.D. Tex. June 5, 2017)……………………….………...7 Statutes 8 U.S.C. §1103………………………………………………………………………………….…4 8 U.S.C. § 1357.............................................................................................................................2, 3 TEX. CODE CRIM. PROC. art. 2.251……………………………………………………….……….6 TEX. CIV. PRAC. & REM. CODE §66.002……………………………………………………….4, 5 TEX. GOV’T CODE §§ 752.051…….…………………………………………………………….....4 TEX. GOV’T CODE §§ 752.053….…………………………………………………………3, 4, 5, 6 TEX. GOV’T CODE §§ 752.056……………………………………………………….……………3 TEX. GOV’T CODE §§ 752.0565…………………………………………………………………3, 5
ii

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 4 of 12
STATEMENT OF INTEREST OF AMICUS CURIAE Amicus City of San Marcos, Texas is a home rule city in Hays County, Texas with a population of 61,980 according to the 2016 Census. U.S. Census Data indicates that in 2010, 37.5 percent of the city’s residents were Hispanic or Latino. San Marcos is the home of Texas State University’s main campus with a Fall 2016 enrollment of 38,808 students. More than 50 percent of Texas State’s students are from racial or ethnic minority groups with 35 percent listed as Hispanic, 11 percent African-American, and 5 percent of other racial or ethnic minorities. Minority students comprise 80 percent of the 7,858 students enrolled in the San Marcos Consolidated Independent School District’s schools. The majority of those students are Hispanic. Despite the San Marcos Police Department’s (“SMPD”) ongoing efforts to calm the fears of the community, there are many who believe that they, their family members, or friends will be stopped, questioned, detained, or deported if SB4 becomes law. The San Marcos City Council has heard a chorus of voices, growing daily by number and intensity, opposed to SB4. The council voted on August 22, 2017 to authorize the submission of a brief as Amicus Curiae.
INTRODUCTION The City of San, Marcos, Texas files this brief as Amicus Curiae in support of Plaintiffs’ Motions for Preliminary Injunction to prevent SB4 from becoming effective on September 1, 2017. The fear that SB4 has instilled in the immigrant and non-immigrant population in San Marcos is real. As the effective date of SB4 draws nearer, those fears threaten to undermine the San Marcos Police Departments’ efforts to increase community outreach and partnership including areas of the city that are predominantly Hispanic. Under current SMPD practice, its officers will not make an inquiry about a person’s immigration status unless the individual has been involved in the commission of a violent crime
1

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 5 of 12
and the department determines that the safety of the community would be served, by immigration enforcement, to remove the individual from San Marcos. Continuation of that policy after September 1 would subject the city’s police chief to thousands of dollars in civil penalties and the possibility of removal from office. Trust and cooperation between the police and city residents are the cornerstones of effective community policing. If allowed to become law, SB4 will destroy that trust. SB4 threatens punishment of public officials who attempt to reassure the community through policies, practices, or constitutionally protected statements of opinion that are deemed, by others, to “materially limit enforcement of the immigration laws.”
The San Marcos Police Department is aware of U.S. Immigration and Customs Enforcement’s (“ICE”) 287(g) program that allows local law enforcement officers to engage in enforcement of immigration laws. SMPD understands that participation in the program is voluntary under 8 U.S.C. §§1357(g) (9) and (10). The department established its law enforcement priorities and made an assessment of its available resources. It chose not to deputize its employees as immigration enforcement officers and has not signed a memorandum of agreement with ICE. SB4 creates an unfunded mandate that will draw police resources away from responding to other calls for service. Amicus believes that enforcement of immigration laws is, and should remain, the responsibility of the federal government. Congress intended local police participation in the enforcement of immigration laws to be voluntary. SB4 thwarts that intent and a preliminary injunction should be issued to prevent it from being enforced anywhere in Texas.
While SB4 has been touted as a public safety measure, Amicus believes that fears of immigration enforcement will deter residents of San Marcos from calling the police, reporting crimes as victims, or coming forward as witnesses. As a result, San Marcos’ residents will be less safe.
2

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 6 of 12
ARGUMENT I. SB4 is preempted by Federal Law SB4 prohibits a local entity from adopting, enforcing, or endorsing a policy that “prohibits or materially limits the enforcement of immigration law.” TEX. GOV’T CODE §752.053(a)(1).1 Prohibited policies include those that would materially limit a commissioned peace officer from, “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” §752.053(b)(3). In a scenario involving an ICE raid in San Marcos, SMPD’s available personnel and equipment could be commandeered to assist federal immigration officials and leave the city with insufficient resources to respond to calls for service from its residents. From a plain reading of these provisions, it appears to Amicus that SB4 would make SMPD’s participation in enforcement of immigration laws mandatory whenever a federal immigration officer requests assistance. A policy that allowed SMPD personnel to refuse an ICE request for assistance, when sufficient resources are not available, could subject the police chief to civil penalties under §752.056 or removal from office under §752.0565. SB4 makes SMPD’s assistance with the enforcement of immigration laws mandatory, but that is not what Congress intended. “Federal law specifies the limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government.” Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). SMPD has not entered into a voluntary agreement with ICE. Its officers are not trained in the complex provisions of federal immigration law. SB4 is in conflict with 8 U.S.C. §1357(g)(2) and (9). Federal law requires a police chief’s consent to use police personnel for immigration
1 The sections of the Texas Government Code amended by SB4 will be effective September 1, 2017.
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Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 7 of 12
enforcement even in situations where the U.S. Attorney General determines that an immediate federal response is needed to deal with “an actual or imminent mass influx” of immigrants near a border. 8 U.S.C. §1103(a)(10). SB4’s mandatory cooperation requirements are in conflict with federal law.
Amicus concurs with the arguments of the City of Dallas and the El Cenizo Plaintiffs regarding federal preemption of SB4. (See ECF 152 at 8-13 and ECF 154 at 15-23).
II. SB4’s Provisions are Unconstitutionally Vague The void for vagueness doctrine requires that the law must give “a person of ordinary intelligence fair notice of what is prohibited” and must not be “so standardless that it authorizes or encourages seriously discriminatory enforcement.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). SB4 defines the term “local entity” to include the members of a governing body of a municipality, an officer or employee of a municipality including those in a police department, a municipal attorney, county attorney, or district attorney. §752.051(5). It defines the term “policy” to include, “a formal, written rule, order, ordinance, or policy, or an informal, unwritten policy.” §752.051(6). But, public officials are left guessing about what conduct on their part could lead to the imposition of crushing civil penalties of up to $25,000 per day or their ouster from office through quo warranto proceedings instituted by the Office of the Attorney General. That is because no definitions are offered to explain when a policy “materially limits the enforcement of immigration laws.” Section 752.053(a)(1) provides no guidance and §752.0565 (removal from office) provides no comfort. All it takes to start the quo warranto process under TEX CIV. PRAC. and REM. CODE §66.002 to remove a local public official from office is “evidence including evidence of a
4

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statement by the public officer” establishing “probable grounds” that a public officer “engaged in conduct” that violates §752.053(a)(1). So, the phrase, “materially limits the enforcement of immigration laws,” really means whatever the Texas Attorney General’s Office says it means. Any statement, comment, or remark made during a city council meeting, at a neighborhood forum, at a grocery store, at a coffee shop, or during a political debate could trigger the removal process. Furthermore, unlike TEX. CIV. PRAC. & REM. CODE §66.002, SB4’s removal provision requires the attorney general to initiate removal proceedings when presented with such “evidence.” TEX. GOV’T CODE §752.0565(b).
The potential for abuse of SB4, as a vehicle for state-sponsored retribution against local public officials for the exercise of their right to free speech in public or private discourse on the politically charged issue of immigration, is obvious. It results from the vagueness of the statute itself without regard to the motives of the current holders of state office. Section 752.053(a)(1) is invalid on its face because it leaves local public officials guessing at its meaning and it authorizes seriously discriminatory enforcement.
III. SB4 Violates the First Amendment Right to Free Speech The right to speak out on matters of public concern is a hallmark of our constitutional democracy. This country is currently engaged in a heated debate regarding immigration enforcement and immigration reform. “The public interest in having free and unhindered debate on matters of public importance” is “the core value of the Free Speech Clause of the First Amendment.” See Pickering v. Board of Education, 391 U.S. 563, 573 (1968). Local government officials, whether elected or appointed, do not forfeit their right to speak out on matters of public concern when they take office or accept public employment. A state “cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in free
5

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 9 of 12
expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). Local public officials in Texas have a First Amendment right to express their opinions on the matter of immigration. Some may believe that federal immigration law should be amended to provide a path to citizenship. Others hold the view that enforcement of immigration laws is the responsibility of the federal government and that city police officers should not be compelled to serve as immigration enforcement officers. Many have already spoken out against SB4 and some have questioned the motives of those responsible for sponsoring the bill and supporting its adoption.
SB4 equates “evidence of a statement” by a public officer with the adoption or endorsement of a policy. SB4 prohibits local elected and appointed officials from adopting or endorsing a policy that “materially limits the enforcement of immigration laws.” After September 1, 2017, elected local officials and public employees in Texas who speak critically about the enforcement of immigration laws, or SB4 itself will be at risk for state-sponsored punishment including civil penalties and removal from office. The threat of dismissal from public employment is a powerful means of inhibiting free speech. See Pickering, at 574. State–sponsored punishment of those with opposing viewpoints is the hallmark of a totalitarian regime.
This Court should enjoin enforcement of TEX. GOV’T CODE §752.053(a)(1) because it is an unconstitutional limitation on free speech.
IV. Compliance with SB4 Would Result in Unlawful Seizures In Violation of the Fourth Amendment and Liability For Texas Cities Under 42 U.S.C. §1983
Under SB4, any individual stopped by the police – perhaps for a moving violation or a broken tail light – is subject to questioning by a police officer about his or her immigration status. TEX. GOV’T CODE §752.053(b)(1). The officer is authorized by SB4 to send information about the individual’s place of birth to United States Immigration and Customs Enforcement. TEX. GOV’T CODE §752.053(b)(2)(A). If the federal government makes a detainer request, SB4
6

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imposes an absolute and non-discretionary duty to “comply with, honor, and fulfill” the request, thus resulting in detention for up to 48 hours, unless the person can produce a Texas Driver’s License or another form of government-issued identification to prove citizenship in the United States. TEX. CODE CRIM. PROC. art. 2.251.
Detention in compliance with an immigration detainer is a seizure under the Fourth Amendment and must be supported with probable cause or a warrant. See Arizona v. United States, 132 S.Ct. 2492, 2509 (2012); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015). But, SB4 mandates compliance whether or not the federal immigration detainer is supported by probable cause or a warrant and thus compels local law enforcement agencies and their officers to engage in seizures in violation of the Fourth Amendment.
This Court has previously determined that a county policy of honoring ICE detainer requests under the assumption that probable cause existed to believe the detainee had committed a federal crime, solely because an ICE detainer had been issued, meets the standard of deliberate indifference to the Fourth Amendment rights of a detainee. Santoyo v. United States, No. 16-855 (W.D. Tex. June 5, 2017). Compliance with SB4 will put local law enforcement agencies in the no-win situation of honoring immigration detainer requests in violation of the Fourth Amendment, thus resulting in liability under 42 U.S.C. §1983, or facing civil penalties or removal from office because they have adopted a policy that requires an independent assessment of probable cause before honoring such requests.
V. SB4 Will Make Communities in Texas Less Safe SB4 will have its greatest impact on Hispanic individuals and others whose physical appearance and attributes lead law enforcement officers to question them about their immigration status after they have been detained. The current practice in SMPD is to question immigration
7

Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 11 of 12
status only when an individual has been arrested for involvement in the commission of a violent crime. That policy will not be enforceable if SB4 is allowed to become law on September 1, 2017. San Marcos residents are justifiably afraid that they, their families, or friends will be stopped, questioned, detained, and deported because SB4 compels SMPD’s officers to act as immigration enforcement officers. They will fear the police and be reluctant to come forward as crime victims or witnesses. As a result, the entire community will be less safe.
San Marcos joins the arguments of the Plaintiffs and those presented in the Brief Amici Curiae of Major Cities Chiefs Association, Police Executive Research Forum, and United States Conference of Mayors In Support of Plaintiffs’ Motions For Preliminary Injunction. (See ECF No. 165 at 6-13).
CONCLUSION For these reasons, and for the reasons stated in the Plaintiffs’ briefs, Amicus supports the entry of a preliminary injunction.
Respectfully submitted, SAN MARCOS CITY ATTORNEY’S OFFICE /s/ Michael J. Cosentino MICHAEL J. COSENTINO City Attorney State Bar of Texas No. 04849600 City of San Marcos, Texas 630 East Hopkins Street San Marcos, Texas 78666 mcosentino@sanmarcostx.gov Phone: (512) 393-8150 Facsimile: (855) 759-2846 Counsel for Amicus Curiae
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Case 5:17-cv-00404-OLG Document 197 Filed 09/07/17 Page 12 of 12
CERTIFICATE OF SERVICE I certify that on August 24, 2017, I electronically filed the foregoing document with the clerk of court for the United States District Court for the Western District of Texas using the electronic case failing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to all counsel of record who have consented in writing to accept this Notice as service of this document by electronic means.
/s/ Michael J. Cosentino MICHAEL J. COSENTINO
9

 
 CCasaes:e157:-1570-7c6v2-004D0o4c-OumLGent:D0o0c5u1m41e6n9t020252 FPialegde:019/25D/1a7te FPilaegde: 019o/2f56/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FILEtJ

No. 17-50762

SEP 2· 5 2017

g 5 : }, .-CV"' ~ OL}-,. CL v'

ei.IRK, U.S. DISTRIC WIOTISRN OISTRICT

CITY OF EL CENIZO, TEXAS ; RAUL L. REYES, Mayor, City ofEleve!m.rz-o-;-..----;.,!rri"'

TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick

•: County Constable Pet. 3-1; LEAGUE OF UNITED LATIN AMERICAN

CITIZENS; MAVERICK COUNTY; CITY OF EL PASO,

Plaintiffs - Appellees

CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS; THE CITY OF HOUSTON,

Intervenors - Plaintiffs - Appellees
V.

STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General,

Defendants - Appellants

EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; MOVE San Antonio,
Plaintiffs - Appellees
V.
STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safe t y,

Case 5:17-cv-00404-OLG Document 222 Filed 09/25/17 Page 2 of 6 Case: 17-50762 Document: 00514169005 Page: 2 Date Filed: 09/25/2017
No. 17-50762
Defendants- Appellants
CITY OF SAN ANTONIO; BEXAR COUNTY,.TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT,
Plaintiffs - Appellees CITY OF AUSTIN,
Intervenor Plaintiff- Appellee
v.
STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas,
Defendants - Appellants
Appeal from the United States District Court for the Western District of Texas, San Antonio
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:
On August 30, 2017, the District Court of the Western District of Texas entered a preliminary injunction blocking the implementation of five specific portions of a recent Texas state statute, which the parties refer to as SB 4, short hand for Senate Bill4 from the 2017legislative session. 1 The defendants,
1 Act of May 3, 2017, 85th Leg., R.S., ch.4, 2017 Tex. Gen. Laws_. 2

Case 5:17-cv-00404-OLG Document 222 Filed 09/25/17 Page 3 of 6 Case: 17-50762 Document: 00514169005 Page: 3 Date Filed: 09/25/2017
No. 17-50762 which are the State of Texas as well as its governor and attorney general, have moved in this court for a stay of the injunction pending appeal. As our description of the motion indicates, a stay during the period in which this case is pending is all we consider in this ruling. The merits of the district court's order are for a different day and a different panel of this court. We further note this ruling does not foreclose any preemption or constitutional challenge to the law as interpreted and applied now that it is in effect. We GRANT a stay in part and DENY it in part.
The district court ordered that the defendants be enjoined from "implementing and enforcing the following provisions of SB 4":
1. The enforcement provision in Tex. Gov't Code § 752.053{b)(3) and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.055, 752.056, and 752.0565 arising therefrom;
2. The endorsement prohibition in Tex. Gov't Code § 752.053(a)(l), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.055, 752.056, and 752.0565 arising therefrom;
3. The prohibition against adoption or enforcement of policies "that materially limit" the enforcement of immigration laws in Tex. Gov't Code § 752.053(a)(l), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § 752.055, 752.056, and 752.0565 arising therefrom;
4. The prohibition against a pattern or practice that "materially limits" the enforcement of immigration laws in Tex. Gov't Code § 752.053(a)(2), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under § § 752.055, 752.056, and 752.0565 arising therefrom;
5. The requirement that law enforcement agencies "comply with, honor, and fulfill" any immigration detainer request issued by United States Immigration and Customs Enforcement, Tex. Code Crim. Proc. Art. 2.251(a)(l), and any action (including but not
3

CCasaes:e157-:15077-c6v2-004D0o4c-OumLGent:D0o0c5u1m41e6n9t020252 FPialegde:049/25D/1a7te FPilaegde: 049o/2f56/2017
No. 17-50762 limited to corrective, disciplinary, retaliatory, or punitive action) under Tex. Gov't Code § 752.055, 752.056, and 752.0565; Tex. Loc. Gov't Code § 87.03 l(c); and Tex. Penal Code § 39.07 arising therefrom. The defendants seek a stay of each injunction. In deciding a motion to stay pending appeal, we consider these factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Planned Parenthood of ·. Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). We conclude that the defendants are likely to succeed on the merits of two of the claims as we subsequently discuss. As to those, we find no significant injury to the plaintiffs, but we do find irreparable injury to Texas: "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws." Planned Parenthood, 734 F.3d at 419 (citing Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J.)). Finally as to public interest, we find that because the State is the appealing party, "its interest and harm merges with that of the public." Id. (citing Nken, 556 U.S. at 435). Section 752.053(b)(3) provides that the local entities to which it is directed may "not prohibit or materially limit" persons who, in effect, have authority that may impact immigration, from "assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance[.]" Focusing on the second quoted section, we hold that nothing in Arizona v. United States, 567 U.S. 387 (2012), prohibits such assistance. We also hold that the statute on which the district court relied, 8 U.S.C. § 1357(g), provides for such assistance. Finding the defendants likely
4

CaCsaes: e175-:51077-c6v2-004D0o4c-uOmLeGnt: D00o5c1u4m1e6n9t020252 PFaileged:059/25D/1a7te FPilaedg:e059/o2f56/2017
No. 17-50762 ': to succeed on this claim, we grant a stay of the first numbered injunction with
one caveat. The defendants have acknowledged for purposes of the stay that "materially limits" may need clarifying as to what kinds of government actions would be improper limitations. The injunction remains in place for that phrase as it applies to Section 752.053(b)(3).
Section 752.053(a)(l) states that a local entity or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws[.]" Our interpretation of the injunction is that only the word "endorse" was enjoined, and continuing in place was SB 4's prohibitions on adopting or enforcing such policies that prohibit the enforcement of these laws. The defendants have acknowledged that the term, "endorse," may be too broad and have therefore proposed qualifying interpretations and even recommended we enjoin only that word to rescue the rest. We accept that recommendation pending merits assessment and thus, here, too, we leave the injunction in place as to the operation of the word, "endorse."
The third and fourth numbered injunctions are both based on the presence of the phrase "materially limit," once as it appears in Section 752.053(a)(l), and secondly in Section 752.053(a)(2). Here, too, we conclude that the defendants have acknowledged that the reach of the word "limit" could be too expansive and have offered qualifying interpretations. We conclude that such interpretations are best left for the time when this court's ruling would have more finality. That time is to be set by the merits panel. We deny a stay as to the third and fourth numbered injunctions.
Finally, the district court enjoined Article 2.251(a)(l), which requires law enforcement agencies to "comply with, honor, and fulfill" any immigration detainer request issued by United States Immigration and Customs Enforcement ("ICE"). We stay that injunction. We note, however, that under
5

Case 5:17-cv-00404-OLG Document 222 Filed 09/25/17 Page 6 of 6 Case: 17-50762 Document: 00514169005 Page: 6 Date Filed: 09/25/2017
No. 17-50762 Article 2.251(b) law enforcement agencies need not comply with or fulfill a ,, detainer request when a detainee "provide[s] proof' of lawful immigration status. Article 2.251(b) does not limit the permissible proof to the government identification listed as examples in the statute, as acknowledged by defendants before us at oral argument. Further, the "comply with, honor, and fulfill" requirement does not require detention pursuant to every ICE detainer request; rather, the "comply with, honor, and fulfill" provision mandates that local agencies cooperate according to existing ICE detainer practice and law.
As just described, the district court's injunction order is STAYED in part. The defendants' motion is otherwise DENIED.
6

Case Case :

157:1-570-c7v6-20040D4o-cOuLmGentD: 0o0c5u1m4e1n6t9202026-1

PFaigleed: 109/2D5a/1te7 FiPleadg: e091/2o5f/22017

FILED

LYLE W. CAYCE CLE RK

United States Court ofAppeals
FIFTH CIRCUIT OFFICE OF T il E CLERK

SEP 2 5 201/ ~

CU:RK, U.S. OISTRICT C WESTe~N OISTRICT OF

T EL. 504-3 10a'rtJQ
600 s. MAESTRI PLACE
NEW ORLEANS, LA 70130

OEPU'TY

September 25 , 2017

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No . 17 - 50762

City of El Cenizo, Texas , et al v . State of

Texas , et al

US DC No . OSDC No.

5 5

: :

17- CV- 40 4 17-CV-459

-

0

L-vfJl J

OSDC No. 5 :1 7- CV-489

Enclosed is an order entered in this case.

Sincerely ,
LYLE W. CAYCE , Cl erk
/~/)J~-·-
By:
Shawn D. Henderson , Deputy Clerk
504-310-7668
Mr . J . Campbell Barker Ms . JoAnne Bernal Ms . Jeannette Clack Mr . Christopher Coppola Mr . Ari Cuen in Mr . David Wi l son Dummer Ms. Laurie R. Eiserloh Mr. Charles S . Estee Ms. Yolanda Cornejo Garcia Mr. J ose Garza Mr. Lee P . Gelernt Mr. David J . Hacker Mr. Renea Hicks Mr . Lonny Jacob Hoffman
lo
Mr . Omar C . Jadwa t Mr . Stephe n B . Kang Mr. Scott A. Keller Ms. Deborah Lynne Klein Mr . Timothy Robert Labadie Mr. Rona l d Charles Lewis Mr. Grant Bel l ows Ma rtinez Mr. Darren Lee McCarty Ms. Mary B. McCord Mr. Michael Patrick Moran Ms. Celina Y. Moreno Mr . Anthony J. Ne l son

II

CCaassee: 157:1-570-c7v6-20040D4o-cOuLmGentD: 0o0c5u1m4e1n6t9202062-1 PFaigleed: 209/2D5a/1te7 FiPleadg: e092/2o5f/22017 Mr. David Austin Robert Nimocks Mr. Efren Carlos Olivares Ms. Collyn Ann Peddie Ms. Nina Perales Mr. Erez Reuveni Mr. Rolando Leo Rios I Ms. Stacy Jordan Rodriguez Ms. Barbara Elaine Rosenberg Mr. Thomas Andrew Saenz Mr. Edgar Saldivar Mr. John Paul Salmon Mr. Andre Segura Mr. Michael Siegel Mr. Scott Stewart Mr. Cory David Szczepanik Mr. David Benjamin Thomas Ms. Sherine Elizabeth Thomas Mr. Luis Roberto Vera Jr. Mr. Eric A. White Mr. Richard Paul Yetter

 
 No. 17-50762
In the United States Court of Appeals for the Fifth Circuit
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, MAYOR, CITY OF EL CENIZO; TOM SCHMERBER, COUNTY SHERIFF; MARIO A. HERNANDEZ, MAVERICK
COUNTY CONSTABLE PCT. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY; CITY OF EL PASO, Plaintiffs-Appellees,
CITY OF AUSTIN, Intervenor Plaintiff-Appellee, TRAVIS COUNTY; TRAVIS COUNTY JUDGE SARAH ECKHARDT; AND TRAVIS
COUNTY SHERIFF SALLY HERNANDEZ, Intervenor Plaintiffs-Appellees, CITY OF DALLAS, Intervenor Plaintiff-Appellee,
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, Intervenor Plaintiff-Appellee, CITY OF HOUSTON, Intervenor Plaintiff-Appellee, v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS, IN HIS OFFICIAL CAPACITY; AND KEN PAXTON, TEXAS ATTORNEY GENERAL, Defendants-Appellants.
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY, IN HIS OFFICIAL CAPACITY; AND THE TEXAS ORGANIZING PROJECT EDUCATION
FUND, Plaintiffs-Appellees, v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR; KEN PAXTON, ATTORNEY GENERAL; AND STEVE MCCRAW, DIRECTOR OF THE TEXAS DEPARTMENT OF
PUBLIC SAFETY, Defendants-Appellants.
CITY OF SAN ANTONIO; REY A. SALDANA, IN HIS OFFICIAL CAPACITY AS SAN ANTONIO CITY COUNCILMEMBER; TEXAS ASSOCIATION OF CHICANOS IN
HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INC.; AND WORKERS DEFENSE PROJECT, Plaintiffs-Appellees, v.
STATE OF TEXAS; KEN PAXTON, SUED IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS; AND GREG ABBOTT, SUED IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE STATE OF TEXAS, Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-404, 5:17-cv-459, 5:17-cv-489
Emergency Motion to Stay Preliminary Injunction Pending Appeal

Certificate of Interested Parties Pursuant to the fourth sentence of Fifth Circuit Rule 28.2.1, appellants need not furnish a certificate of interested parties because they are governmental parties.
- i -

Table of Contents Page
Nature of the emergency.........................................................................................1 Argument................................................................................................................ 3 I. Defendants are likely to succeed on appeal. ......................................................3
A. Overview of SB4 .........................................................................................3 B. SB4’s ICE-detainer provision does not violate the Fourth Amendment..... 4 C. SB4’s enforcement-assistance provision is not preempted. ........................ 9 D. SB4’s endorsement prohibition does not violate free speech.....................14 E. SB4’s “materially limit” prohibitions are not facially vague. .................... 16 II. The remaining factors favor a stay. ................................................................. 19 Conclusion............................................................................................................ 21 Certificate of conference ...................................................................................... 22 Certificate of service .............................................................................................23 Certificate of compliance ......................................................................................30 Exhibits................................................................................................................. 31
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Nature of the Emergency The issue of “sanctuary cities” entered the national spotlight in 2015, when a convicted criminal was released by the San Francisco sheriff’s department—despite a request by federal authorities to detain him for immigration enforcement—and killed Kate Steinle.1 Responding to this public-safety concern, the Texas Legislature passed Senate Bill 4 (SB4) earlier this year to improve the cooperation of the State and its localities with the federal government in its enforcement of immigration law. Before SB4, some law-enforcement agencies in Texas were already cooperating with federal officials’ enforcement of immigration law. And some were already complying with federal-government requests (known as “ICE detainers”) to continue detaining individuals already in state or local custody for up to an additional 48 hours—based on the federal government’s representation, through an immigration warrant, of probable cause to believe that the person is a removable alien. But other law-enforcement agencies in Texas had policies that prohibited such federal–local cooperation. Through SB4, Texas prohibits its local law-enforcement agencies from having such sanctuary-city policies. Exh. 2 (SB4) §752.053. The district court preliminarily enjoined SB4 in substantial part on August 30, 2017, just two days before SB4’s effective date of September 1, 2017. Exh. 38 (Order). The district court’s sweeping rationale goes much further than allowing localities to have sanctuary-city policies. The district court’s reasoning deems unlawful even state or local voluntary compliance with ICE-detainer requests or enforcement cooperation—all done at the express direction of the federal government.
1 Steve Almasy et al., Suspect in Killing of San Francisco Woman Had Been Deported Five Times, CNN.com, July 4, 2015, https://perma.cc/4FPJ-PTWA.
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The district court’s fundamentally flawed holding that States violate the Fourth Amendment by honoring federal ICE-detainer requests threatens to shut down this valid federal–local cooperation, which has existed throughout the Nation since at least the 1940s. Order 67 n.71; Exh. 14 at 6-7. And the district court’s separate and erroneous preemption holding—that state and local officials are preempted from engaging in “enforcement cooperation” at the direction of federal immigration officials—is so aggressive that it calls into question the legality of preexisting, longstanding cooperation by state and local officials throughout the Nation with federal officials’ enforcement of immigration law.
The district court’s Order should be immediately stayed pending appeal, as this injunction has far-reaching public-safety consequences. Exh. 41 (McCraw Decl.) ¶¶3-4; Exh. 42 (Waybourn Decl.) ¶¶3-6. SB4 is wholly valid, and the State has every right to prohibit its own localities from having sanctuary-city policies. Moreover, the Order even threatens existing and legitimate local voluntary cooperation with the federal government’s enforcement of immigration law.
A decision on the stay motion is therefore necessary as soon as possible, which the State submits is the evening of September 7, 2017, under circuit practice. E.g., Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (granting emergency stay motion filed two days before). This expedited consideration is needed to minimize the irreparable harm being suffered because the State is unable to enforce its duly enacted public-safety law. See Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers) (preventing a State
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from implementing a statute addressing “law enforcement and public safety interests . . . constitutes irreparable harm”). The timing to minimize this irreparable harm is unfortunately tight because, despite a preliminary-injunction hearing on June 26, the district court waited over two months to enjoin SB4 on August 30—two days before its effective date. The State then filed this stay motion expeditiously just two business days after the district court denied the State’s stay motion on August 31.2
Argument The four relevant factors all favor a stay pending appeal: (1) defendants’ likely success on the merits; (2) defendants’ irreparable harm; (3) no substantial harm to other parties; and (4) the public interest. See Planned Parenthood, 734 F.3d at 410.
I. Defendants Are Likely to Succeed on Appeal. Given the applicable word limit, this motion will not attempt to exhaustively cat-
alogue the district court’s errors and, instead, will highlight errors that easily show a likelihood of reversal on all four violations found by the district court.
A. Overview of SB4 SB4 does two main things. See generally Exh. 15 at 3-9 (detailed statutory overview). First, SB4 directs law-enforcement agencies in Texas to honor ICE detainers—requests by U.S. Immigration & Customs Enforcement to notify the government of the release date of an alien already in local officials’ custody, and to maintain custody of that alien (for up to 48 hours past the release date) so federal agents can
2 The State certifies that the facts supporting emergency consideration of this motion are true and complete. 5th Cir. R. 27.3. No prior request for this relief has been submitted to this Court. 5th Cir. R. 8.4.
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arrest the alien for immigration-law violations. See §§752.053(a)(3), 772.0073(a)(2);3 Tex. Code Crim. Proc. art. 2.251(a). Federal policy requires all ICE detainers to be accompanied by a warrant issued by a federal immigration official, certifying the federal government’s probable cause to believe that the person in question is unlawfully present. See Order 68-69 & n.73, 72 n.76.
Second, SB4 directs law-enforcement agencies not to prohibit or materially limit officers from “assisting or cooperating” with the federal government’s enforcement of immigration law. §752.053(a)(1), (a)(2), (b)(3). This policy does not require officers to take affirmative enforcement actions. Rather, it displaces agency policies that forbid officers from ever asking about immigration status or providing enforcement assistance to federal immigration agents. E.g., §752.053(b)(1)-(4) (prohibited-policy examples).
B. SB4’s ICE-Detainer Provision Does Not Violate the Fourth Amendment.
1. First off, “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.” United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011); see Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014). So it is doubtful that the Fourth Amendment even applies to many aliens subject to ICE detainers under SB4.
3 SB4’s enactment and amendment of Texas statutes took effect September 1, 2017, although enforcement of some resulting provisions is enjoined. Section citations are to the Texas Government Code unless otherwise specified.
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2. Even if the Fourth Amendment would apply, the district court’s analysis has many fatal defects.
Most importantly, the district court erred in treating the Fourth Amendment’s reasonableness inquiry as somehow different for federal versus state or local officials. The district court conceded the “broad and long-recognized” authority of federal officials to take custody of aliens based on probable cause of civil immigration violations. Order 69 (citing, e.g., United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. Unit A 1981)). Because that detention is reasonable under the Fourth Amendment, it makes no difference whether state officials carry out the first 48 hours of that detention at the express request of the federal government. That is especially so since a federal ICE-detainer request to state officials is backed by a federal immigration warrant, expressly stating that the federal government has probable cause to believe that the individual is a removable alien.
The district court wrongly held that State and local officials must satisfy a “probable cause predicate” that “differs” from the predicate that federal officials must satisfy. Order 72. That doctrinal move is unprecedented. The “touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 134 S. Ct. 2473, 2482 (2014). The Fourth Amendment’s reasonableness inquiry analyzes “the content of information possessed by police and its degree of reliability,” Alabama v. White, 496 U.S. 325, 330 (1990)—not the precise identity of the official effecting the seizure or “the law of the particular State in which the search occurs,” Virginia v. Moore, 553
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U.S. 164, 172 (2008). If federal officials had sufficient probable cause to make a detention reasonable, that same seizure is also reasonable for state or local officials to perform at federal officials’ request.
3. To be sure, the identity of the official effecting a seizure might implicate separate (1) state-law local-official-power issues or (2) federal preemption.4 But those issues must be analyzed under applicable state-law or preemption doctrines, rather than the Fourth Amendment’s reasonableness inquiry. See, e.g., United States v. Laville, 480 F.3d 187, 192 (3d Cir. 2007) (“[V]alidity of an arrest under state law must never be confused or conflated with the Fourth Amendment concept of reasonableness.”).
The district court’s order, though, conflates these three distinct issues. For example, the district court incorrectly stated: “Defendants have not identified any provision of law—within the INA, Texas statute, or some other legal authority—that authorizes the local officials subject to SB 4 to arrest and detain for civil immigration violations, or to assess probable cause of removability.” Order 76. That is not a Fourth Amendment issue regarding the individual right to be free from unreasonable seizures; it is an issue about whether the official effecting the seizure has been dele-
4 Tenth Amendment commandeering issues are not presented; that amendment does not constrain a State’s ability to direct its localities or local law-enforcement officials, whose local power is set at “the absolute discretion of the State.” Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907); see also Tex. Const. art. XI, §1 (counties are “legal subdivisions of the State”), art. V, §23 (sheriffs’ “duties . . . shall be prescribed by the Legislature”); Kelley v. Johnson, 425 U.S. 238, 247 (1976).
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gated power to do so. In any event, SB4 itself authorizes Texas law-enforcement officials to detain persons “subject to an immigration detainer request issued by [ICE].” Tex. Code Crim. Proc. art. 2.251(a).
The district court then further conflated these issues by incorrectly suggesting (Order 76 & n.81) that SB4’s ICE-detainer-compliance authorization is preempted under Arizona v. United States, 567 U.S. 387 (2012). Arizona held preempted a state law that allowed detention based on “the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Id. at 410 (emphases added). In contrast to such “unilateral state action,” federal ICE-detainer requests exemplify valid “cooperation under federal law” that is affirmatively contemplated by 8 U.S.C. §1357(g)(10)(B). Id.; see also id. (“allow[ing] federal immigration officials to gain access to detainees held in state facilities” is permitted).
Even if States gave up certain aspects of their common-law police powers upon joining the Union by submitting to federal preemption under the Supremacy Clause, cf. Order 70-71, the INA’s 8 U.S.C. §1357(g)(10)(B) restored any otherwise preempted state power to comply with ICE-detainer requests. SB4 directs local officials to execute ICE-detainer detentions under the “request, approval,” and “instruction” of federal immigration officials—in compliance with Arizona’s endorsement of such federally-guided cooperation. 567 U.S. at 410; see United States v. Quintana, 623 F.3d 1237, 1241-42 (8th Cir. 2010) (state trooper “was authorized to assist” in detention under §1357(g)(10)(B) based on border-patrol agent’s probable cause of removability).
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4. By wrongly concluding that SB4’s authorization of ICE-detainer compliance would be preempted, the district court incorrectly held that state or local officials could detain individuals only for crimes—rather than civil offenses. Order 71, 73, 80. But state and local officials, like federal officials, have authority to detain for certain civil offenses. See Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 466 (4th Cir. 2013) (state detentions for civil immigration violations are lawful when at “direction or authorization by federal officials,” including ICE); 3 Wayne LaFave et al., Search and Seizure §5.1(b) (5th ed. 2012) (listing examples, including arrests for incapacitation due to intoxication); see also, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas v. Davis, 533 U.S. 678, 697 (2001) (noting that civil removal proceedings contemplate detention).
5. The district court erred in concluding that local officials cannot act on ICE agents’ immigration warrants if the local officials are not themselves “trained to [make] . . . a particularized assessment of probable cause of removability.” Order 7677. Local officers may rely and act on ICE’s particularized determination of probable cause of removability, which is stated in the immigration warrant that ICE issues to local officers. See, e.g., Brooks v. United States, 416 F.2d 1044, 1049 (5th Cir. 1969) (“[L]aw enforcement officers participating in a common investigation are reliable informants.”). Where federal officials have probable cause and local officials act pursuant to those federal officials’ requests, the local officials also have probable cause under the “collective knowledge” doctrine—even if the local officials lack “personal knowledge of the evidence.” United States v. Ibarra-Sanchez, 199 F.3d 753, 759-60 (5th Cir. 1999).
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To the extent a detainee in any particular case argues otherwise—such as to claim that a local official had conclusive, affirmative knowledge that the federal agents’ determination was wrong—that claim would be only an as-applied challenge to a specific detention, not a basis for facially enjoining SB4’s ICE-detainer mandate as the district court did. See United States v. Salerno, 481 U.S. 739, 745 (1987). Unlike in City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015), SB4 will not “prohibit the particularized assessment of probable cause in every case in which it applies,” as ICE detainers themselves reflect ICE’s particularized finding of probable cause of removability. Cf. Order 78.
6. Lastly, the district court’s order jeopardizes other federal–local cooperation. For example, local law-enforcement agencies can contract with federal immigration officials to undertake specific immigration-enforcement functions, 8 U.S.C. §1357(g), such as issuing “immigration detainers,” serving “warrants of arrest for immigration violations,” and “process[ing] . . . immigration violations.” Exh. 42, App. D to Exh. A at 17-18. It is unclear how those arrangements survive the district court’s sweeping Fourth Amendment holding that local officials can detain and execute warrants only if “probable cause of a crime exists.” Order 80. Moreover, to the extent that the injunction extends to compliance with immigration detainers seeking only notification of an alien’s release date, as opposed to detention of the alien, see Order 68, 94, a plainly permissible information-sharing practice is now suspended.
C. SB4’s Enforcement-Assistance Provision Is Not Preempted. The district court manifestly erred in holding that SB4’s enforcement-assistance provision (§752.053(b)(3)) is field and conflict preempted. Order 19-33. The court
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ignored SB4’s text and purpose by pretending that SB4 requires localities to engage in unilateral immigration enforcement divorced from any assistance or cooperation by the federal government. Nothing in SB4 requires (or allows) unilateral enforcement: The provision at issue merely prohibits policies barring local officials from “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” §752.053(b)(3) (emphases added).
1. The district court fundamentally misapprehended what §752.053(b)(3) does and does not do. Section 752.053(b)(3) prohibits local policies that block local officials from “assisting or cooperating” with federal immigration authorities. It is a statewide prohibition on sanctuary-city policies that ban federal–local cooperation. Before any such cooperation can occur, though, the federal government must first ask for assistance. So “when the Attorney General has not requested [cooperation] and will not supervise local enforcement,” Order 30, SB4 does not come into play.
SB4 does not direct local officers to “apprehend and remove aliens without supervision and direction from the Federal Government,” Order 31, or “establish[] a systematic local enforcement procedure,” Order 33. The State never claimed to have the “‘inherent authority’ to carry out immigration enforcement” unilaterally. Order 29.
2. By misconstruing §752.053(b)(3), the district court erroneously held that it was not protected from preemption by 8 U.S.C. §1357(g)(10)(B). Order 31-32. This “federal statute permit[s] state officers to ‘cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.’” Arizona, 567 U.S. at 410 (quoting 8 U.S.C.
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§1357(g)(10)(B)). That is precisely what SB4’s §752.052(b)(3) does: it ensures that state and local officers are permitted to cooperate with the federal government in enforcing immigration law. Thus, SB4 is neither field nor conflict preempted, as 8 U.S.C. §1357(g)(10)(B) expressly says such cooperation is permitted.5
SB4 “simply seeks to enforce” the federal–local cooperation that federal law itself promotes, thus “trac[ing] the federal law.” Chamber of Commerce v. Whiting, 563 U.S. 582, 602, 607 (2011). The State is not unilaterally “determin[ing] whether a person is removable.” Arizona, 567 U.S. at 409. Federal immigration officials are the ones who ultimately determine what steps to take (or not to take) to detain or remove any unlawfully present alien. There is no risk, then, of putting “local officials in the impermissible position of arresting and detaining persons based on their immigration status without federal direction and supervision.” Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 532 (5th Cir. 2013) (en banc).
The district court incorrectly said Arizona distinguished “communication from enforcement cooperation.” Order 32. Arizona certainly held that “unilateral” state immigration enforcement was preempted. 567 U.S. at 410. But Arizona listed multiple examples of enforcement “cooperation” permitted under 8 U.S.C. §1357(g)(10)(B): “situations where States participate[d] in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities.” Id.
5 Congress also has broadly encouraged federal–local immigration-enforcement cooperation elsewhere. E.g., 8 U.S.C. §§1103(a)(11), 1373(a), (b), 1644.
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3. The district court correctly recognized that “[s]ubsection (g)(10)(B) allows states to cooperate with the Attorney General absent a formal agreement.” Order 29. But, in direct conflict with that observation, the court erroneously held that SB4’s §752.053(b)(3) was preempted because it is purportedly “circumventing” the statutory requirements for a written, formal federal–local cooperation agreement under 8 U.S.C. §1357(g)(1)-(5). Order 27.
As the district court recognized, 8 U.S.C. §1357(g)(10) itself says that a formal agreement is not required for federal–local cooperation:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State . . .
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. §1357(g)(10) (emphases added). Subparagraph (B) belies the district court’s conclusion that, by permitting formal agreements to allow local officials to directly enforce immigration law, Congress meant to preempt lesser forms of local cooperation with federal agents’ enforcement activities. Order 24-26, 31-32. By holding that formal 8 U.S.C. §1357(g) agreements are the exclusive means for local officials to cooperate with federal officials in immigration enforcement, the district court effectively read 8 U.S.C. §1357(g)(10)(B) out of the INA. Order 28-30 & n.30. If a State or locality wanted the federal government to deputize its officials to “perform the functions of an immigration officer,” Arizona, 567 U.S. at 408—for
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example, to issue “immigration detainers,” serve “warrants of arrest for immigration violations,” and “process . . . immigration violations.” Exh. 42, App. D to Exh. A at 17-18—then the State or locality would need to enter into a formal agreement under 8 U.S.C. §1357(g)(1). Under such an agreement, the state or local officials would be de facto deputized federal immigration officers “subject to the direction and supervision of the Attorney General.” 8 U.S.C. §1357(g)(3).
SB4’s §752.053(b)(3), though, does not address whether the State or localities should enter into formal agreements for their officials to be deputized as de facto federal immigration officers. Instead, it deals with local officials “assisting and cooperating” with federal immigration officers’ actions, which is exactly when a formal agreement is not needed under 8 U.S.C. §1357(g)(10)(B). SB4 simply does not conflict with the “exacting requirements” for formal agreements under 8 U.S.C. §1357(g)(1)-(5). Order 25; see, e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1300 (10th Cir. 1999) (observing that 8 U.S.C. §1357(g)(10)(B) “evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws” even outside of a “formal [§1357(g)] agreement”).
Indeed, plaintiffs themselves have long cooperated with federal officials in the enforcement of federal immigration law by (selectively) enforcing ICE-detainer requests without formal agreements. See, e.g., Exh. 11 (Travis County Sheriff Sally Hernandez Decl.) ¶26. As the United States noted below, “[n]othing in [8 U.S.C. §1357(g)(10)] suggests it permits ad hoc efforts at cooperation by individual officers
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but not state enactments to provide that same type of cooperation by all state officers.” Exh. 14 (Statement of Interest of the United States) at 21.
4. Finally, the district court’s remedy sweeps far too broadly: The court enjoined §753.053(b)(3) in its entirety based only on one term in that provision: “enforcement assistance.” Order 19, 32-33. The court never addressed SB4’s severability clause expressing “the intent of the legislature that every . . . clause, phrase or word in this Act . . . are severable from each other.” SB4 §7.01. Courts must apply state-law severability provisions to the greatest extent possible. See, e.g., Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996). Thus, any preemption regarding “enforcement assistance” warrants, at most, enjoining that phrase alone.
D. SB4’s Endorsement Prohibition Does Not Violate Free Speech. SB4’s §752.053(a)(1) provides that local entities may not “adopt, enforce, or endorse” policies limiting immigration-law enforcement. The district court erred in enjoining this entire provision under the First Amendment. 1. The court erroneously defined “endorse” as “sweeping in scope,” Order 44, based on what it “could mean,” Order 41. In a facial challenge—and particularly in the overbreadth context, see, e.g., United States v. Wallington, 889 F.2d 573, 576 (5th Cir. 1989)—statutory provisions must be interpreted to avoid constitutional concerns, see, e.g., Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 397 (1988). The Supreme Court has often admonished that “[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Skilling v. United States, 561 U.S. 358, 406 (2010).
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As the State repeatedly proposed—but the district court did not even discuss— the term “endorse” in SB4 is readily susceptible to a valid narrowing construction: the dictionary definition “to sanction.” Webster’s New International Dictionary 845 (2d ed. 1945); accord Webster’s New World College Dictionary 480 (5th ed. 2016); Oxford English Dictionary 162 (Oxford Univ. Press 1971). To “sanction,” in turn, means “to ratify or confirm,” or “to authorize or permit; countenance.” Webster’s New World College Dictionary 1286.
So defined, “endorse” obviates all free-speech concerns. And this comports with SB4’s design of prohibiting, not free speech, but local sanctuary-city policies obstructing cooperation with federal immigration officials. Section 752.053(a)(1)’s direction that local agencies and officials may not adopt, enforce, or endorse such policies—with “endorse” meaning to ratify, confirm, authorize, or permit such policies in their agency—has nothing to do with the political process, political campaigns, or constitutionally protected speech generally. It deals with those local entities’ use of their governmental power.
2. Even if the statutory term “endorse” were invalid, the district court significantly erred as to the remedy. Order 93. In §752.053(a)(1), “endorse” is a single word in a disjunctive list of verbs; the single word “endorse” could be severed and enjoined while leaving the rest of the provision operative. That was the appropriate remedy for any violation—particularly in light of SB4’s severability clause. See, e.g., Leavitt, 518 U.S. at 139-40; Phelps-Roper v. Koster, 713 F.3d 942, 953 (8th Cir. 2013) (holding that an unconstitutional word appearing just once in a serial list should be stricken, and everything else upheld). One set of plaintiffs even conceded that, given
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SB4’s severability clause, the appropriate remedy for any First Amendment problem would be to enjoin only the term “endorse.” See Exh. 25 (Transcript of Preliminary Injunction Hearing) at 53 (statement of El Cenizo counsel).
Instead, the district court enjoined the entire statutory provision containing that word—without even mentioning SB4’s severability clause. Order 33-48, 93. The court claimed that it “cannot rewrite a law to conform it to constitutional requirements.” Order 39 (citing United States v. Stevens, 559 U.S. 460, 481 (2010)). But there is nothing to rewrite; the prohibition on remedial rewriting of statutes deals with affirmatively writing new words into a statute. Randall v. Sorrell, 548 U.S. 230, 262 (2006); accord Stevens, 559 U.S. at 480-81.
Nor would striking “endorse” alone present any other problems. Removing it would not “leave gaping loopholes.” Randall, 548 U.S. at 262. It is not integral to the “functional coherence” of the statutory provision. Farmers Branch, 726 F.3d at 537. That one word in a serial list is not “so interwoven” in §752.053(a)(1) that it “cannot be separated.” Hill v. Wallace, 259 U.S. 44, 70 (1922). And the remaining statute would be “fully operative as a law.” Champlin Refining Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234 (1932).
E. SB4’s “Materially Limit” Prohibitions Are Not Facially Vague. SB4 directs local officials not to prohibit or “materially limit” local officials’ cooperation with federal immigration enforcement. §752.053(a)-(b). The district court wrongly held this term unconstitutionally vague on plaintiffs’ facial, pre-enforcement challenge. The term has a clear, core meaning—which is why plaintiffs can so assuredly argue that their preferred local policies are prohibited. Cf. Order 52.
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1. A vagueness analysis tests whether a law is definite enough “to provide a person of ordinary intelligence fair notice of what is prohibited” or is “so standardless that it authorizes or encourages seriously discriminatory enforcement.” Holder v. Humanitarian Law Proj., 561 U.S. 1, 18 (2010); see Roark & Hardee LP v. City of Austin, 522 F.3d 533, 552-53 (5th Cir. 2008). The challenger must show that “no standard of conduct is specified at all.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982). When “laws that do not threaten to infringe constitutionally protected conduct” are “challenged facially as unduly vague, in violation of due process,” the challenger “‘must demonstrate that the law is impermissibly vague in all of its applications.’” Roark, 522 F.3d at 546 (quoting Hoffman Estates,455 U.S. at 497).
The Supreme Court did not jettison these principles in Johnson v. United States, 135 S. Ct. 2551 (2015). Cf. Order 54. Johnson was not a pre-enforcement challenge; it invalidated a criminal sentence after “[n]ine years’ experience” trying to grapple with “the indeterminacy of the wide-ranging inquiry required by the [Armed Career Criminal Act’s] residual clause.” 135 S. Ct. at 2558, 2560. The provision had created numerous circuit splits and “proved ‘nearly impossible to apply consistently.’” Id. at 2560. Ultimately, the clause was vague “although it would be permissible as applied to some conduct because the statute required applying an uncertain term to ‘an idealized ordinary case of the crime,’ and ‘not to real-world facts or statutory elements.’” Crooks v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016) (quoting Johnson, 135 S. Ct. at 2557, 2561).
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SB4 shares none of those characteristics. Moreover, unlike in Johnson, several plaintiffs here concede that their conduct would be covered by SB4, see Exh. 15 at 3536, and “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates, 455 U.S. at 495.
SB4 is not vague merely because it could yield close legal questions in some circumstances. Order 56. Rather, a law is unconstitutionally vague only if it “simply has no core.” Smith v. Goguen, 415 U.S. 566, 578 (1974). The provision here has an obvious valid core that precludes facial vagueness: SB4 prohibits sanctuary-city policies limiting when local officials can collect and share immigration-status information—the type of federal–state cooperation that the district court ruled was constitutional, see Order 11-17—or limiting federal–local cooperation to only certain types of immigration violators, e.g., Order 58 n.57 (citing Travis County Sheriff Office’s policy).
2. In all events, “materially limit” is not vague under any test. See Order 55-56. A “material” limit is one that is “substantial,” as opposed to insignificant, Webster’s New International Dictionary 1392 (3d ed. 2002), and “material” also suggests a “logical connection” between the action and the “consequential facts” creating the action’s significance—here, the effect on immigration-law enforcement, Black’s Law Dictionary 1124 (10th ed. 2014). Thus, as applied to immigration-law enforcement, a “material limit” is a policy or action (1) addressing that topic of immigration-law enforcement, as opposed to routine police matters, (2) that either prohibits immigration law-enforcement activity or significantly limits that activity from
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its otherwise-allowed scope. These constraints are not “contrary to the text of the statute,” Order 55, but rather consistent with routine statutory-interpretation principles. See United States v. Golding, 332 F.3d 838, 844 (5th Cir. 2003) (per curiam) (noscitur a sociis canon); §752.053(b)(1)-(4) (examples of what is covered).
A materiality standard is also routine in the law. E.g., Fed. R. Evid. 807(a)(2). For example, “materially limit[]” is used in federal law. E.g., 15 U.S.C. §77d1(b)(1)(H)(i); Comm’r v. Estate of Hubert, 520 U.S. 93, 105-07 (1997) (plurality op.) (discussing a “material limitation” standard). Likewise, the ABA model rules on professional conduct refer to a “materially limit[]” standard. Model Rules of Prof’l Conduct 1.7(a)(2), 1.10(a)(1) (Am. Bar Ass’n 2016). Where narrowing context or settled legal concepts indicate a particular meaning, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Skilling, 561 U.S. at 406.
Purported concerns about as-applied discriminatory enforcement cannot sustain a pre-enforcement facial challenge. Order 57; see, e.g., Hoffman Estates, 455 U.S. at 503-04. Since “gradations of fact or charge would make a difference” as to liability, “adjudication of the reach and constitutionality of [the statute] must await a concrete fact situation.” Holder, 561 U.S. at 25.
II. The Remaining Factors Favor a Stay. “The presumption of constitutionality which attaches to” SB4 “is not merely a
factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). States
- 19 -

necessarily suffer irreparable harm when their public-safety statutes are enjoined. Maryland v. King, 567 U.S. at 1301 (Roberts, C.J., in chambers); accord Planned Parenthood, 734 F.3d at 419.
On the other hand, a stay pending appeal creates no meaningful possibility of injury to plaintiffs. State and local law-enforcement officials have been cooperating with federal immigration authorities for years without irreparable harm to those officials. E.g., Exh. 16 ¶¶12, 22; Exh. 17 ¶¶6-10; Exh. 18 ¶¶6-10. This is true even of plaintiffs, who have sometimes enforced ICE-detainer requests, based on their own policy preferences (such as the seriousness of the allegations against the detainee). See, e.g., Exh. 11 ¶26. Lifting barriers to immigration-law enforcement when the federal government requests help is a public good that does not injure plaintiffs. See Heckler v. Cmty. Health Servs. of Crawford Cty, Inc., 467 U.S. 51, 60 (1984) (noting “the interest of the citizenry as a whole in obedience to the rule of law”).
Finally, a stay of the preliminary injunction would allow Defendants to carry out the statutory policy of the Legislature, which “is in itself a declaration of public interest.” Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937).
- 20 -

Conclusion The Court should stay the district court’s injunction pending appeal of the preliminary injunction or any later appeal of a final judgment enjoining SB4.

KEN PAXTON Attorney General
JEFFREY C. MATEER First Assistant Attorney General

Respectfully submitted.
/s/ Scott A. Keller SCOTT A. KELLER Solicitor General
J. CAMPBELL BARKER Deputy Solicitor General
ARI CUENIN ERIC A. WHITE Assistant Solicitors General
ANGELA V. COLMENERO Chief, General Litigation Division
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov
Counsel for Appellants

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Certificate of Conference Appellees have been contacted by e-mail on September 4 and September 5, 2017. Because appellees have not responded with consent to the relief requested herein, appellants consider this motion opposed. The filing of this motion was also preceded by telephone calls to the clerk’s office and to the offices of opposing counsel on September 5, 2017 advising of the intent to file the emergency motion.
/s/ Scott A. Keller SCOTT A. KELLER
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Certificate of Service I certify that this document has been served by ECF or e-mail on September 5, 2017, upon the following:
Andre I. Segura Omar C. Jadwat Spencer E. Amdur Lee Gelernt American Civil Liberties Union 125 Broad Street New York, NY 10004 asegura@aclu.org ojadwat@aclu.org samdur@aclu.org lgelernt@aclu.org
Cecillia D. Wang Cody H. Wofsy Stephen Kang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 cwang@aclu.org cwofsy@aclu.org
Edgar Saldivar American Civil Liberties Union Foundation of Texas P.O. Box 8306 Houston, Texas 77288 esaldivar@aclutx.org
Max Renea Hicks Law Office of Max Renea Hicks P.O. Box 303187 Austin, Texas 78703 (512) 480-8231 rhicks@renea-hicks.com
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Luis Roberto Vera, Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad, Ste. 1325 San Antonio, Texas 78205-2260 (210) 225-3300 lrvlaw@sbcglobal.net
Counsel for the El Cenizo Plaintiffs
Andrea E. Senteno Celina Ysela Moreno Marisa Bono Nina Perales John Paul Salmon MALDEF 110 Broadway Street #300 San Antonio, Texas 78205 (210) 224-5476 asenteno@maldef.org cmoreno@maldef.org mbono@maldef.org nperales@maldef.org tpellegrini@maldef.org jsalmon@maldef.org
Tanya G. Pellegrini MALDEF 1512 14th Street Sacramento, CA 95814 tpellegrini@maldef.org
Thomas A. Saenz MALDEF 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 tsaenz@maldef.org
- 24 -

Deborah Lynne Klein Office of the City Attorney, Litigation Division Frost Bank Tower 100 West Houston Street, 18th Floor San Antonio, TX 78205 (210) 207-8940 Deborah.klein@sanantonio.gov
Cory D. Szczepanik Yolanda Cornejo Garcia Sidley Austin, L.L.P. 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 cszczepanik@sidley.com ygarcia@sidley.com
Jose F. Sanchez Sidley Austin, L.L.P. 555 West Fifth Street Los Angeles, CA 90013 jose.sanchez@sidley.com
Robin E. Wechkin Sidley Austin, L.L.P. 701 5th Avenue, Ste. 4200 Seattle, WA 98104 rwechkin@sidley.com
Counsel for the San Antonio Plaintiffs
- 25 -

Jo Anne Bernal El Paso County Attorney 500 E. San Antonio 5th Floor, Ste. 503 El Paso, TX 79901 (915) 546-2050 joanne.bernal@ca.epcounty.com
Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209 (210) 892-8543 jgarza@trla.org
Michael Moran Garza Golando Moran, PLLC 115 E. Travis St., Ste. 1235 San Antonio, TX 78205 michael@ggmtx.com
Mimi M.D. Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 mimi@texascivilrightsproject.org
Efren Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 (956) 787-8171 efren@texascivilrightsproject.org
Counsel for the El Paso Plaintiffs
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Christopher J. Coppola City of Austin P.O. Box 1546 Austin, Texas 78767 Christopher.coppola@austintexas.gov
Michael John Weills Siegel City of Austin Law Department P.O. Box 1088 Austin, TX 78767 (512) 974-2888 michael.siegel@austintexas.gov
Counsel for the Austin Intervenor Plaintiffs
Anthony J. Nelson Laurie R. Eiserloh Sharon Talley Sherine E. Thomas Tim Labadie Travis County Attorney P.O. Box 1748 Austin, TX 78767 (512) 854-9415 tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov sharon.talley@traviscountytx.gov sherine.thomas@traviscountytx.gov tim.labadie@traviscountytx.gov
Counsel for the Travis County Intervenor Plaintiffs
- 27 -

Charles S. Estee Assistant City Attorney City Attorney’s Office 1500 Marilla Street, Room 7B North Dallas, Texas 75201 (214) 670-3519 Charles.estee@dallascityhall.com
Counsel for Intervenor Plaintiff the City of Dallas
Ronald C. Lewis Judith L. Ramsey Patricia L. Casey Connica Lemond Collyn A. Peddie Fernando De Leon City of Houston Legal Department 900 Bagby, 4th Floor Houston, Texas 77002 (832) 393-6491 ronald.lewis@houstontx.gov Judith.ramsey@houstontx.gov pat.casey@houstontx.gov connica.lemond@houstontx.gov collyn.peddie@houstontx.gov Fernando.deleon2@houstontx.gov
Counsel for Intervenor Plaintiff the City of Houston
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Rolando L. Rios Law Offices of Rolando L. Rios 115 E. Travis, Ste. 1645 San Antonio, Texas 78205 (210) 222-2102 rios@sbcglobal.net Counsel for Intervenor Plaintiff the Texas Association of Hispanic County Judges and County Commissioners
/s/ Scott A. Keller SCOTT A. KELLER
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Certificate of Compliance I certify that, on September 5, 2017, this document was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit via the Court’s CM/ECF document filing system. I certify that (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper document, 5th Cir. R. 25.2.1; and (3) the electronic submission has been scanned with the most recent version of commercial virus-scanning software and was reported free of viruses. I certify that this motion complies with the type-volume limitation of Rule 27(d)(2) because it contains no more than 5,200 words, and complies with the typeface and style requirements of Rule 32(a)(5) and (a)(6) because it was prepared in Microsoft Word using 14-point Equity typeface.
/s/ Scott A. Keller SCOTT A. KELLER
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Exhibits

ECF No. 1. 1 2. 1-1 3. 24
4. 31 5. 37 6. 51 7. 55
8. 56
9. 57 10. 58
11. 58-1 12. 77
13. 78 14. 90 15. 91 16. 91-1 17. 91-2 18. 91-3 19. 91-4 20. 96 21. 125 22. 137 23. 139 24. 142
25. 143 26. 144
27. 146 28. 148

District Court Documents
Document (in No. 5:17-cv-404 unless otherwise noted) Complaint by El Paso County et al. (No. 5:17-cv-459) Senate Bill No. 4 Motion for Preliminary Injunction by City of El Cenizo et al. Second Amended Complaint by City of El Cenizo et al. Intervenor Complaint by City of Austin Amended Complaint by TOPEF Motion for Preliminary Injunction by City of San Antonio et al. Motion for Preliminary Injunction by El Paso County et al. Motion for Preliminary Injunction by City of Austin Motion for Preliminary Injunction by Judge Sarah Eckhardt et al. Declaration of Sally Hernandez Memorandum in Support of Motion for Preliminary Injunction by City of San Antonio et al. Intervenor Complaint by Judge Sarah Eckhardt et al. Statement of Interest of the United States Opposition to Motions for Preliminary Injunction Declaration of Steven C. McCraw Declaration of Bill E. Waybourn Declaration of Rand Henderson Declaration of Laura Stowe Intervenor Complaint by City of Dallas Brief in Support of Motion for Preliminary Injunction Brief by Immigration Reform Law Institute Intervenor Complaint by City of Houston Intervenor Complaint by Texas Association of Hispanic County Judges and County Commissioners Transcript of Preliminary Injunction Hearing Brief by Texas Association of Hispanic County Judges and County Commissioners Post-hearing Brief by City of Austin Post-hearing Brief by Judge Sarah Eckhardt et al.

Date May 22, 2017 May 8, 2017 June 5, 2017
June 8, 2017 June 12, 2017 June 19, 2017 June 19, 2017
June 19, 2017
June 19, 2017 June 19, 2017
June 19, 2017 June 19, 2017
June 20, 2017 June 23, 2017 June 23, 2017 June 23, 2017 June 23, 2017 June 23, 2017 June 23, 2017 June 23, 2017 June 27, 2017 June 27, 2017 June 30, 2017 June 30, 2017
July 3, 2017 July 8, 2017
July 10, 2017 July 10, 2017

- 31 -

29. 149 30. 150 31. 151 32. 152 33. 154 34. 170
35. 172 36. 174 37. 178 38. 189 39. n/a
40. 192
41. n/a 42. n/a

Post-hearing Brief by El Paso County et al.

July 10, 2017

Post-hearing Brief by City of Houston

July 10, 2017

Post-hearing Brief by City of San Antonio et al.

July 10, 2017

Post-hearing Brief by City of Dallas

July 10, 2017

Post-hearing Brief by City of El Cenizo et al.

July 10, 2017

Supplemental Statement of Interest by the United July 20, 2017

States

Post-hearing Brief by Defendants

July 20, 2017

First Amended Complaint by City of San Antonio et al. July 20, 2017

Amended Answer to Complaints

Aug. 3, 2017

Order Granting Preliminary Injunction

Aug. 30, 2017

Text Order Denying Opposed Motion to Stay Pending Aug. 31, 2017

Appeal

Amended Notice of Appeal

Sept. 1, 2017

Declarations
Declaration of Steven C. McCraw Declaration of Bill E. Waybourn

Sept. 5, 2017 Sept. 4, 2017

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 Case: 17-50762 Document: 00514152339 Page: 1 Date Filed: 09/12/2017
No. 17-50762
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY; CITY OF EL PASO,
Plaintiffs – Appellees
CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; TEXAS
ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS; THE CITY OF HOUSTON,
Intervenors - Plaintiffs - Appellees
v.
STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General,
Defendants - Appellants ---------------------------------------------------------------------------------------------------------EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; MOVE San
Antonio,
Plaintiffs – Appellees
v. STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety,
Defendants - Appellants ---------------------------------------------------------------------------------------------------------CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION

Case: 17-50762 Document: 00514152339 Page: 2 Date Filed: 09/12/2017

OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT,
Plaintiffs – Appellees
CITY OF AUSTIN,
Intervenor Plaintiff - Appellee
v.
STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the
State of Texas,
Defendants – Appellants

On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-404, 5:17-cv-459, 5:17-cv-489

BRIEF OF AMICUS CURIAE THE UNITED STATES OF AMERICA IN SUPPORT OF
TEXAS’S MOTION FOR A STAY PENDING APPEAL

CHAD A. READLER Acting Assistant Attorney General Civil Division United States Department of Justice
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation

EREZ REUVENI Senior Litigation Counsel P.O. Box 878, Ben Franklin Station Washington, DC 20044-0878 Telephone: (202) 307-4293
Attorneys For United States of America

Case: 17-50762 Document: 00514152339 Page: 3 Date Filed: 09/12/2017
TABLE OF CONTENTS
INTRODUCTION AND STATEMENT OF INTEREST OF THE UNITED STATES ................................................................................................................. 1
BACKGROUND ...................................................................................................3
A. Federal law authorizes States and localities to aid federal immigration enforcement, including by complying with federal detainer requests ...............................................................................3
B. To aid federal immigration enforcement, Texas enacted Senate Bill 4’s detainer provision, which directs Texas localities to cooperate with federal detainer requests ..........................................6
C. The district court preliminarily enjoins SB 4’s detainer provision ............................................................................................7
THE COURT SHOULD STAY PENDING APPEAL THE DISTRICT COURT’S INJUNCTION OF SB 4’S DETAINER PROVISION.....................9
I. The District Court Erred in Holding that SB 4’s Detainer Provision Likely Violates the Fourth Amendment .....................................................9
A. To the extent the district court suggested that no authorization exists for cooperation with detainers, or that such cooperation is preempted, it erred .......................................................................... 10
B. The district court erred in ruling that the Fourth Amendment likely bars local law enforcement from detaining an alien based on a federal detainer request ................................................................... 11
C. The district court erred in barring local law enforcement from notifying federal officials when a criminal alien will be released .. 17
II. The Remaining Stay Factors Strongly Favor Staying the District Court’s Injunction of SB 4’s Detainer Provision ................................................... 18
CONCLUSION ................................................................................................... 20
CERTIFICATE OF SERVICE .......................................................................... 21
i

Case: 17-50762 Document: 00514152339 Page: 4 Date Filed: 09/12/2017
TABLE OF AUTHORITIES
CASE LAW
Abel v. United States, 362 U.S. 217 (1960) .................................................................................................... 12, 13
Andrews v. State, 962 So. 2d 971 (Fla. Dist. Ct. App. 2007)...................................................................... 16
Arizona v. United States, 567 U.S. 387 (2012) .................................................................................................... passim
Arkansas v. Sullivan, 532 U.S. 769 (2001) .......................................................................................................... 12
Bruce v. Guernsey, 777 F.3d 872 (7th Cir. 2015) ........................................................................................... 12
Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158 (S.D. Ind. Mar. 28, 2013) .......... 11
Clark v. Suarez Martinez, 543 U.S. 371 (2005) ............................................................................................................ 3
Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009)............................................................................ 5
Demore v. Kim, 538 U.S. 510 (2003) .......................................................................................................... 20
Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309 (D. Me. 1976).................................................................................... 17
Illinois v. Andreas, 463 U.S. 765 (1983) .......................................................................................................... 15
I.N.S. v. Legalization Assistance Project, 510 U.S. 1301 (1993) ........................................................................................................ 17
ii

Case: 17-50762 Document: 00514152339 Page: 5 Date Filed: 09/12/2017
Liu v. Phillips, 234 F.3d 55 (1st Cir. 2000) .............................................................................................. 15
Lopez v. I.N.S., 758 F.2d 1390 (10th Cir. 1985) ....................................................................................... 12
Lunn v. Commonwealth, 477 Mass. 517 (2017)........................................................................................................ 11
Martinez-Medina v. Holder, 673 F.3d 1029 (9th Cir. 2011) ......................................................................................... 14
Maryland v. King, 567 U.S. 1301 (2010) ........................................................................................................ 18
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ........................................................................................... 11
Nken v. Holder, 556 U.S. 418 (2009) .......................................................................................................... 20
Roy v. Cty. of Los Angeles, No. 13-4416, 2017 WL 2559616 (C.D. Cal. June 12, 2017) ........................................ 13
Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013) ........................................................................................... 11
Sherman v. United States Parole Comm’n, 502 F.3d 869 (9th Cir. 2007) ........................................................................................... 13
Smith v. State, 719 So. 2d 1018 (Fla. Dist. Ct. App. 1998).................................................................... 15
Soldal v. Cook Cnty., 506 U.S. 56 (1992) ............................................................................................................ 12
Spinella v. Esperdy, 188 F. Supp. 535 (S.D.N.Y. 1960) .................................................................................. 13
State v. Rodriguez, 317 Or. 27 (1993).............................................................................................................. 13
iii

Case: 17-50762 Document: 00514152339 Page: 6 Date Filed: 09/12/2017
United States v. Burtton, 599 F.3d 823 (8th Cir. 2010) ........................................................................................... 12
United States v. Cardona, 903 F.2d 60 (1st Cir. 1990) .............................................................................................. 16
United States v. Garcia-Avalino, 444 F.3d 444 (5th Cir. 2006) ........................................................................................... 13
United States v. Gilmore, 776 F.3d 765 (10th Cir. 2015) ......................................................................................... 12
United States v. Hensley, 469 U.S. 221 (1985) .......................................................................................................... 15
United States v. Juarez-Velasquez, 763 F.3d 430 (5th Cir. 5014) ........................................................................................... 17
United States v. Lucas, 499 F.3d 769 (8th Cir. 2007) ........................................................................................... 13
United States v. McDonald, 606 F.2d 552 (5th Cir. 1979) ........................................................................................... 15
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001) .......................................................................................................... 20
United States v. Ovando-Garzo, 752 F.3d 1161 (8th Cir. 2014) ......................................................................................... 11
United States v. Phillips, 834 F.3d 1176 (11th Cir. 2016) ....................................................................................... 14
United States v. Timms, 664 F.3d 436 (4th Cir. 2012) ........................................................................................... 12
Virginia v. Moore, 553 U.S. 164 (2008) .......................................................................................................... 14
iv

Case: 17-50762 Document: 00514152339 Page: 7 Date Filed: 09/12/2017
FEDERAL STATUTES 8 U.S.C. § 1103........................................................................................................................ 5 8 U.S.C. § 1126.................................................................................................................... 5, 6 8 U.S.C. § 1226(a) ................................................................................................................... 3 8 U.S.C. § 1226(c)(1) .............................................................................................................. 3 8 U.S.C. § 1231........................................................................................................................ 5 8 U.S.C. § 1231(a) ................................................................................................................... 6 8 U.S.C. § 1231(a)(1)(A)......................................................................................................... 3 8 U.S.C. § 1231(a)(2) .............................................................................................................. 3 8 U.S.C. § 1357........................................................................................................................ 5 8 U.S.C. § 1357(a)(1) .............................................................................................................. 3 8 U.S.C. § 1357(a)(2) .............................................................................................................. 3 8 U.S.C. § 1357(d)................................................................................................................... 8 8 U.S.C. § 1357(g)................................................................................................................... 4 8 U.S.C. § 1357(g)(1)-(9) ........................................................................................................ 4 8 U.S.C. § 1357(g)(3) .............................................................................................................. 4 8 U.S.C. § 1357(g)(10) ........................................................................................................ 4, 8 28 U.S.C. § 517........................................................................................................................ 1
FEDERAL REGULATIONS 8 C.F.R. § 236.1....................................................................................................................... 6 8 C.F.R. § 241.2....................................................................................................................... 7
v

Case: 17-50762 Document: 00514152339 Page: 8 Date Filed: 09/12/2017
8 C.F.R. § 287.5....................................................................................................................... 7 8 C.F.R. § 287.7....................................................................................................................... 5
STATE STATUTES Tex. Code Crim. Proc. Art. 2.251........................................................................................ 7 Tex. Code Crim. Proc. Art. 2.251(a) ........................................................................7, 10, 17 Tex. Code Crim. Proc. Art. 2.251(a)(1)....................................................................9, 10, 17
MISCELLANEOUS Guidance on State and Local Governments’ Assistance in Immigration Enforcement
and Related Matters (Sept. 21, 2011), https://www.dhs.gov/sites/default/files/publications/guidance-state-localassistance-immigration-enforcement.pdf. (Last visited Sept. 5, 2017)......................... 5 ICE Policy No. 10074.2 (April 2, 2017), https://www.ice.gov/detainer-policy (Last visited Sept. 5, 2017)........................................................................................................... 5
vi

Case: 17-50762 Document: 00514152339 Page: 9 Date Filed: 09/12/2017
INTRODUCTION AND STATEMENT OF INTEREST OF THE UNITED STATES
This Court should stay the district court’s preliminary injunction of the detainer provision of Texas Senate Bill 4 (SB 4). The decision below severely undermines the United States’ interests in cooperation with state and local governments on immigration enforcement. See 28 U.S.C. § 517. The detainer provision requires Texas state and local law enforcement officers to honor federal officials’ requests to notify them about removable aliens in local custody and to detain such aliens (for no more than 48 hours) until federal officials can take custody of them in an orderly manner. These federal requests are accompanied by a federal administrative arrest warrant supported by probable cause to believe that the alien is removable from this country. The district court did not dispute that, consistent with the Fourth Amendment, federal officers can arrest and detain an alien pursuant to such a warrant. The district court nonetheless ruled that, in directing Texas officers to act, the detainer provision likely violates the Fourth Amendment because federal detainer requests rest on probable cause that an alien is removable—not probable cause that the alien committed a crime—and the requests do not let local law enforcement find probable cause of a crime for themselves.
The district court’s decision is manifestly erroneous. SB 4 affirmatively authorizes (and indeed mandates) state and local law enforcement officers in Texas to temporarily detain aliens in cooperation with a federal detainer request. The Immigration and Naturalization Act (INA), 8 U.S.C. § 1101 et seq., does not preempt
1

Case: 17-50762 Document: 00514152339 Page: 10 Date Filed: 09/12/2017
such cooperation. The INA permits such state or local “cooperat[ion] with the Attorney General in the identification, apprehension, detention, or removal of aliens.” Id. § 1357(g)(10). And just as the Fourth Amendment permits the federal government to detain an alien pursuant to an administrative warrant backed by probable cause to believe the alien is removable, it permits state and local officials to detain the same alien based on the same determination of probable cause at the express behest of the federal government. The district court erred in ruling otherwise.
The district court’s erroneous Fourth Amendment ruling also does not even apply on its own terms to the detainer provision’s requirement to notify federal officials about removable aliens in local custody. That requirement presents no legal problem. Yet the court inexplicably and erroneously enjoined that requirement too.
All other factors favor a stay. The United States’ reliance on detainers and administrative warrants advances important border-safety, public-safety, and nationalsecurity interests. By scuttling the United States’ chosen approach for administering federal immigration laws in Texas, the injunction harms the public by preventing prompt and effective removal of dangerous criminals. The injunction also hinders local governments who wish to cooperate with federal officials, and gives safe harbor to the non-cooperative jurisdictions that the Texas legislature reasonably required to cooperate. The provision should be permitted to take effect while this Court resolves this appeal.
2

Case: 17-50762 Document: 00514152339 Page: 11 Date Filed: 09/12/2017
BACKGROUND A. Federal law authorizes States and localities to aid federal immigration
enforcement, including by complying with federal detainer requests The federal government has “broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). Under the INA, this includes authority to interview, arrest, and detain removable aliens. See 8 U.S.C. § 1226(a) (Secretary of Homeland Security may issue administrative arrest warrants and arrest and detain aliens pending removal decision); id. § 1226(c)(1) (Secretary “shall take into custody” aliens who have committed certain criminal offenses when “released”); id. § 1231(a)(1)(A), (2) (Secretary may detain and remove aliens ordered removed); id. § 1357(a)(1), (2) (authorizing certain warrantless interrogations and arrests).1 Although the federal government possesses broad power over immigration, enforcing the laws concerning removable aliens is a formidable challenge. To meet that challenge, the federal government works with state and local governments. These cooperative efforts are critical to enabling the federal government to identify and remove the hundreds of thousands of aliens who violate immigration laws each year. Federal law contemplates and authorizes these cooperative efforts. For example, Congress has authorized the Department of Homeland Security (DHS) to enter into
1 Following the Homeland Security Act of 2002, many references in the INA to the “Attorney General” are now read to mean the Secretary. Clark v. Suarez Martinez, 543 U.S. 371, 374 n.1 (2005).
3

Case: 17-50762 Document: 00514152339 Page: 12 Date Filed: 09/12/2017
cooperative agreements with States and localities. See 8 U.S.C. § 1357(g). Under these agreements, trained and qualified state and local officers may, “subject to the direction and supervision of the [Secretary],” id. § 1357(g)(3), perform specified immigration enforcement functions relating to investigating, apprehending, and detaining aliens. Id. § 1357(g)(1)-(9). Even without a formal agreement, state and local officers may “communicate with the [Secretary] regarding the immigration status of any individual” or “otherwise [] cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” id. § 1357(g)(10), when that cooperation is pursuant to a “request, approval, or other instruction from the Federal Government,” Arizona, 567 U.S. at 410. Examples include: (1) participation in joint task forces with federal officers; (2) providing operational support to execute a warrant; (3) giving federal officials access to detainees held in state or local facilities; (4) holding an alien in custody to enable the federal government to make an arrest; (5) responding to requests for information about when an alien will be released from custody; and (6) requesting immigration-status information from aliens and sharing that information with federal officials. See DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters (Sept. 21, 2011), http://www.dhs.gov/xlibrary/assets/guidance-state-local-assistanceimmigration-enforcement.pdf. The INA permits such cooperation whether it is directed by state statute or is implemented ad hoc by a local sheriff. See Arizona, 567 U.S. at 413.
4

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States and localities frequently cooperate with federal immigration enforcement by responding to federal requests for assistance. These requests are often contained in federal immigration detainers issued by Immigration and Customs Enforcement (ICE), a component of DHS responsible for immigration enforcement in the interior of the country.2 In an immigration detainer, ICE: (1) provides a State or locality with notice of its intent to take custody of a removable alien who is detained in their custody; and (2) requests cooperation in those efforts. A detainer asks a State or locality to cooperate by notifying DHS of the alien’s release date and, if ICE has probable cause of removability, holding the alien for up to 48 hours until DHS can take custody. See 8 C.F.R. § 287.7.3
DHS’s immigration-detainer form, Form I-247A, sets forth the basis for DHS’s determination that it has probable cause to believe that the subject is a removable alien. See ICE Policy No. 10074.2 (April 2, 2017), https://www.ice.gov/detainer-policy. The form explains the basis of DHS’s probable-cause finding based upon: (1) a final order of removal against the alien; (2) the pendency of ongoing removal proceedings against the alien; (3) biometric confirmation of the alien’s identity and a records match in federal databases that indicate, by themselves or with other reliable information, that the alien either lacks lawful immigration status or, despite such status, is removable; or (4) the
2 U.S. Customs and Border Protection (CBP), another DHS component, also issues detainers, but it is responsible for border, not interior, enforcement. This brief addresses only ICE detainers. 3 Several statutes authorize such action, including 8 U.S.C. §§ 1103, 1226, 1357, and 1231. See Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009).
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alien’s voluntary statements to an immigration officer, or other reliable evidence that the alien either lacks lawful immigration status or, despite such status, is removable. As of April 2, 2017, ICE detainers may be issued only for aliens already in the criminal custody of a State or locality and must be accompanied by a signed administrative warrant of arrest issued under 8 U.S.C. §§ 1226 or 1231(a). That arrest warrant is issued by an executive officer based on a probable-cause determination. See 8 C.F.R. §§ 236.1, 241.2, 287.5.4
B. To aid federal immigration enforcement, Texas enacted Senate Bill 4’s detainer provision, which directs Texas localities to cooperate with federal detainer requests This case involves Texas Senate Bill 4, which allows and requires local officials
to cooperate with federal immigration enforcement and prevents local actions impeding such efforts through policies forbidding such cooperation. Here the United States focuses on SB 4’s detainer provision, codified at Texas Code of Criminal Procedure Article 2.251, which authorizes and directs state and local law enforcement to comply with federal immigration detainer requests.
Entitled “duties related to immigration detainer requests,” Article 2.251 provides a directive for local Texas law enforcement entities that receive, for a person in their custody, a “federal government request to a local entity to maintain temporary custody of an alien, including a [DHS] Form I-247 document or a similar or successor form.”
4 These are either a Form I-200, Warrant for Arrest of Alien, or a Form I-205, Warrant of Removal/Deportation.
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The provision directs that such entities: (1) comply with, honor, and fulfill any request made in the detainer request provided by the federal government; and (2) inform the person that the person is being held pursuant to an immigration detainer request issued by United States Immigration and Customs Enforcement.
Art. 2.251(a). As discussed above, federal immigration detainers contain both notification and detention requests. So this provision requires that local officers notify ICE when an alien subject to a detainer is scheduled to be released and to hold the alien up to 48 hours longer to permit ICE to take custody in a safe custodial setting.
C. The district court preliminarily enjoins SB 4’s detainer provision The district court held that most provisions of SB 4 were likely preempted by
federal law or unconstitutional, and enjoined their operation preliminarily. As relevant to this brief, the district court concluded that SB 4’s detainer
provision likely violates the Fourth Amendment and preliminarily enjoined that provision. Slip op. 65-81, 93-94. Before reaching that issue, the court discussed state authority and federal preemption. On state authority, the district court noted that “states retain no inherent authority to effect arrests or detentions in immigration matters,” id. at 71; see also id. at 70-73 (discussing state-law restrictions on arrests), but the court did not appear to dispute that the detainer provision empowered local law enforcement to make civil immigration arrests at ICE’s request. The court also appeared to say that, “[t]o the extent that” the detainer provision “authoriz[es]” local officials “to arrest and detain for civil immigration violations, or to assess probable cause of
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removability,” it is preempted. Id. at 76 & n.81. The district court ultimately rested its holding on the Fourth Amendment. The
court did not dispute that federal ICE officers may, consistent with the Fourth Amendment, detain aliens “upon finding probable cause to believe that the subject is an alien who is removable from the United States.” Slip op. 73. But the court saw matters differently for state and local officials called upon to detain aliens at ICE’s request under a detainer and administrative warrant. Because an ICE detainer and administrative warrant do not necessarily establish probable cause of a crime but only probable cause of a civil offense (removability), id. at 75, an ICE request to detain supported by such documents does not, the court concluded, furnish the probable cause needed for a local law enforcement officer to detain a removable alien at the federal government’s request consistent with the Fourth Amendment, see id. at 76. Nor, the court added, does SB 4 permit a local official to independently assess whether there is probable cause that the subject of an ICE detainer has committed a crime. See id. at 75-76. Since SB 4’s detainer provision requires local officials “to detain the subject of the federal detainer request” despite the absence of a probable-cause finding of a crime, the court concluded, “the detainer provision “likely violate[s] the Fourth Amendment” on its face. Id. at 76; see id. at 81. The court did not analyze whether the detainer provision lawfully requires local law enforcement to notify federal officials of the release dates of removable aliens in local custody.
The court preliminarily enjoined operation of Article 2.251(a)(1)’s requirement
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that law enforcement agencies “comply with, honor, and fulfill” any immigration detainer request. Slip op. 93-94. That injunction bars enforcement of both the notification and detainer portions of SB 4’s detainer provision.
THE COURT SHOULD STAY PENDING APPEAL THE DISTRICT COURT’S INJUNCTION OF SB 4’S DETAINER PROVISION The district court manifestly erred in enjoining Texas’s decision in SB 4 to direct
its localities to cooperate with federal requests for assistance by notifying ICE of removable aliens and briefly detaining them. The Fourth Amendment allows Texas to issue that directive. Leaving in place the district court’s injunction would harm the United States’ ability to enforce immigration law in Texas and endanger the public. The Court should stay the injunction of SB 4’s detainer provision pending appeal. I. The District Court Erred in Holding that SB 4’s Detainer Provision Likely
Violates the Fourth Amendment. SB 4’s detainer provision directs local law enforcement officers to cooperate with federal detainers by notifying federal authorities about removable aliens and detaining such aliens based on probable cause of removability. Tex. Code Crim. Proc. Art. 2.251(a)(1). There is no serious dispute that federal immigration law contemplates and embraces such cooperation, or that federal officials can themselves constitutionally effect the detentions at issue. Nevertheless, the district court enjoined local law enforcement from detaining aliens under this provision (slip op. 75-76, 93-94) and from even notifying federal officials when such aliens will be released (id. at 93-94). The district court erred on both fronts.
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A. To the extent the district court suggested that no authorization exists for cooperation with detainers, or that such cooperation is preempted, it erred As a threshold matter, the district court made two erroneous suggestions. First,
it suggested that Texas law enforcement officers lack authorization to comply with federal detainer requests—perhaps, for example, because States lack “inherent authority to effect arrests or detentions in immigration matters.” Slip op. 71; see id. at 70-73. But there is no need for implied authority here. As the district court could not seriously dispute, SB 4 affirmatively authorizes such cooperative detention here, because it unambiguously requires local law enforcement to “comply with, honor, and fulfill” federal detainers that ask local officials to (among other things) detain aliens based on probable cause of removability. Tex. Code Crim. Proc. Art. 2.251(a)(1).
Second, the district court suggested that federal law may preempt SB 4’s conferral of authority on local law enforcement to cooperate with detainers. See slip op. 76 & n.81. That cryptic suggestion—contained in a one-sentence footnote citing no authority—is plainly wrong under federal statutes and caselaw. See 8 U.S.C. § 1357(d), (g)(10); Arizona, 567 U.S. at 410. Detainers are “request[s] . . . from the Federal Government” to a State or locality to assist its efforts to detain a particular alien, so complying with those requests is necessarily permissible cooperation at the “request, approval, or other instruction from the Federal Government.” Arizona, 567 U.S. at 410 (finding such cooperation consistent with federal law, including “arrest[ing] an alien for being removable” following a “request, approval, or other instruction from the Federal
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Government,” and “responding to requests for information about when an alien will be released from their custody”).5
B. The district court erred in ruling that the Fourth Amendment likely bars local law enforcement from detaining an alien based on a federal detainer request
The district court held that the detainer provision “likely violate[s] the Fourth
Amendment” because it requires local officials “to detain the subject of the federal
detainer request” despite the absence of a probable cause finding of a crime (slip op.
76) and does not permit local officials to make such a finding for themselves (id. at 75).
See id. at 74-76. Three points show that the district court’ erred: (1) federal officials can
(as the court did not dispute) constitutionally arrest aliens under a federal administrative
warrant; (2) the lawfulness of that practice does not change when state or local officials
make such an arrest; and (3) there is no constitutional problem when local officials rely
on federal officials’ probable-cause determinations.
First, there is no dispute that the Fourth Amendment permits federal officers to
make civil arrests of aliens based only on probable cause of removability contained in a
detainer or administrative warrant. To start, the “Fourth Amendment does not require
5 Courts have recognized that federal law permits States and localities to cooperate with detainers’ notification and detention requests. See, e.g., Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 46567 (4th Cir. 2013) (detention by state officer lawful when “at ICE’s express direction”); United States v. Ovando-Garzo, 752 F.3d 1161, 1164-65 (8th Cir. 2014) (cooperation without “written agreement” is lawful if “not unilateral”). While some decisions have found certain state and local immigration arrests to be unlawful, those decisions either involved the absence of state-law authority to cooperate with detainers, see Lunn v. Commonwealth, 477 Mass. 517, 528-33 (2017), or unilateral state action in the absence of a federal request or direction, see Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012); Buquer v. City of Indianapolis, 2013 WL 1332158, at *10-11 (S.D. Ind. Mar. 28, 2013).
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warrants to be based on probable cause of a crime, as opposed to a civil offense.” United States v. Phillips, 834 F.3d 1176, 1181 (11th Cir. 2016). Arrests may be premised on probable cause of any legal violation, civil or criminal. See, e.g., Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam); Soldal v. Cook Cnty., 506 U.S. 56, 69 (1992). That understanding is especially settled in the immigration context. There is “overwhelming historical legislative recognition of the propriety of administrative arrest[s] for deportable aliens.” Abel v. United States, 362 U.S. 217, 233 (1960) (noting “impressive historical evidence” of validity of “administrative deportation arrest from almost the beginning of the Nation”); see, e.g., Lopez v. INS, 758 F.2d 1390, 1393 (10th Cir. 1985) (aliens “may be arrested by administrative warrant issued without order of a magistrate”).
The district court did not contest that federal immigration officers can detain an alien based on a civil administrative warrant attesting to probable cause of removability. The court did suggest that Fourth Amendment problems arise when an arrest is based on probable cause of a civil—as opposed to a criminal—violation. Slip op. 70-73. The authorities discussed above rebut that suggestion.6 The district court also suggested warrants accompanying detainers are problematic because they are issued by an ICE
6 That suggestion also conflicts with cases affirming the propriety of non-immigration civil detentions. See, e.g., Bruce v. Guernsey, 777 F.3d 872, 875-75 (7th Cir. 2015) (mental-illness-based detention); United States v. Gilmore, 776 F.3d 765, 770-71 (10th Cir. 2015) (intoxication); United States v. Timms, 664 F.3d 436, 452-53 (4th Cir. 2012) (sexual dangerousness); United States v. Burtton, 599 F.3d 823, 830 (8th Cir. 2010) (open-container violation).
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official rather than a judicial officer. Id. at 70-72. But given the civil context of federal immigration detainers, an executive official (like a federal immigration officer) can constitutionally make the necessary probable-cause determination. “[L]egislation giving authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment,” has existed “from almost the beginning of the Nation” and challenges to their validity “call[] for no further consideration.” Abel, 362 U.S. 232-34. So “it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal district court judge.”7 Roy v. ICE, No. 13-4416, 2017 WL 2559616, *10 (C.D. Cal. June 12, 2017); see Sherman v. United States Parole Comm’n, 502 F.3d 869, 876-80 (9th Cir. 2007) (listing immigration among examples where warrants may be issued “outside the scope of the Fourth Amendment’s Warrant Clause”); United States v. Lucas, 499 F.3d 769, 777 (8th Cir. 2007) (same); Spinella v. Esperdy, 188 F. Supp. 535, 540-41 (S.D.N.Y. 1960) (same); State v. Rodriguez, 317 Or. 27, 42-43 (1993) (similar).
Second, because the Fourth Amendment allows federal immigration officers to arrest and detain based on an administrative warrant attesting to probable cause of
7 Immigration is one of several civil circumstances involving administrative warrants where the Fourth Amendment imposes lesser restrictions. See, e.g., United States v. Garcia-Avalino, 444 F.3d 444, 446-47 (5th Cir. 2006) (“supervised releasees”); Sherman, 502 F.3d at 876-80 (parole violators); Lucas, 499 F.3d at 776-79 (prison escapees).
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removability, state and local officials can do the same when they act at the request or direction of the federal government. The Fourth Amendment does not apply differently when a local official rather than a federal official is making an arrest or detaining an individual. “The Fourth Amendment’s meaning [does] not change with local law enforcement practices . . . . Fourth Amendment protections are not ‘so variable’ and cannot ‘be made to turn upon such trivialities.” Virginia v. Moore, 553 U.S. 164, 172 (2008). To hold otherwise would cause Fourth Amendment “protections [to] vary if federal officers were not subject to the same statutory constraints as state officers.” Id. at 176.
Thus, if a seizure is legal under the Fourth Amendment when a federal officer effectuates it, then so too when a state or local officer does so, even where state law does not authorize the arrest. See Martinez-Medina v. Holder, 673 F.3d 1029, 1037 (9th Cir. 2011) (“deputy sheriff’s violation of Oregon law [in arresting alien based on a violation of federal immigration law] does not constitute a violation of the Fourth Amendment”). This is especially true where, as here, a state officer is not just arresting for a federal offense, but doing so at and after the express request of the federal government supported by a federal warrant, and consistent with state law authorizing the arrests and requiring compliance with federal detainers requesting such arrests. Thus, the district court was wrong to conclude that the Fourth Amendment bars state and local officials—but not federal officials—from detaining aliens “based upon suspicion” of “removab[ility]” rather than on “suspicion of a crime.” Slip op. 75.
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Third, arrests or detentions based on probable cause may lawfully be made where the probable-cause determination is made by one official (here, a federal ICE officer) and relied on by another official who serves under a different sovereign (here, a state or local official). Put differently, state and local officers may rely on ICE’s findings of probable cause, as articulated in a detainer and administrative warrant, to detain the subject of a detainer when the federal government so requests. Where one officer obtains an arrest warrant based on probable cause, other officers can make the arrest even if they are “unaware of the specific facts that established probable cause.” United States v. Hensley, 469 U.S. 221, 231 (1985). “[W]here law enforcement authorities are cooperating . . . the knowledge of one is presumed shared by all.” Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983); accord United States v. McDonald, 606 F.2d 552, 553 (5th Cir. 1979) (per curiam) (collective knowledge satisfied where “officer reasonably believed that appellant was the subject of a federal arrest warrant”).
This rule of collective law-enforcement knowledge applies when “the communication [is] between federal and state or local authorities,” 3 Wayne R. LaFave, SEARCH AND SEIZURE, § 3.5(b) (2016) (collecting cases), including when a state or local officer arrests someone based upon probable cause from information received from an immigration officer. See, e.g., Liu v. Phillips, 234 F.3d 55, 57-58 (1st Cir. 2000); Smith v. State, 719 So. 2d 1018, 1022 (Fla. Dist. Ct. App. 1998). Indeed, the Supreme Court has suggested that state arrests based on civil immigration violations are not constitutionally problematic if made in response to a “request, approval, or other instruction from the
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Federal Government”; that proposition assumes state and local reliance on federal officers’ probable cause to make the arrest. Arizona, 567 U.S. at 410. Therefore, the district court was wrong to think that the Fourth Amendment requires local law enforcement to make probable-cause assessments for themselves, independent of the determination made by federal immigration officers. See slip op. 75.8
For these reasons, the Fourth Amendment allows local officials to detain aliens in response to federal detainer requests. The district court erred in holding otherwise.
C. The district court erred in barring local law enforcement from notifying federal officials when a criminal alien will be released The district court did not analyze the legality of SB 4’s requirement that local law
enforcement respond to a detainer by notifying ICE of a criminal alien’s release date. The district court nonetheless enjoined operation of the detainer provision in full, see slip op. 93-94, which includes the provision’s directive that local officials provide this notification, see Tex. Code Crim. Proc. Art. 2.251(a)(1).
The district court provided no basis for that part of the injunction. Even if it had, the invalidation of the notification requirement would not withstand scrutiny. “State officials can . . . assist the Federal Government by responding to requests for
8 The district court relied exclusively on cases predating ICE’s current policy, and therefore involving detainers that were not accompanied by administrative warrants. See slip op. 71-72. It also ignored the fact that courts routinely apply collective-knowledge principles in civil cases where one sovereign effects arrest based on another sovereign’s probable cause. See, e.g., United States v. Cardona, 903 F.2d 60, 62-63 (1st Cir. 1990) (parole violator warrant issued by New York, effectuated by local police in Rhode Island); Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309, 1312 (D. Me. 1976) (same, federal warrant, effectuated by Maine); Andrews v. State, 962 So. 2d 971, 973 (Fla. Dist. Ct. App. 2007) (military deserter warrant effectuated by local police).
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information about when an alien will be released from their custody.” Arizona, 567 U.S. at 410. An immigration detainer is such a request. It asks “that officials give the [federal government] notice of the person’s death, impending release, or transfer to another institution,” to “ensure that upon the completion of [an alien’s] state criminal matter, [the alien] would be transferred to federal custody to face any immigration consequences.” United States v. Juarez-Velasquez, 763 F.3d 430, 435-36 (5th Cir. 5014). And where (as with federal detainers) an alien remains subject to state or local custody or charges, that state-law basis is “[t]he impetus for the entire duration” of the alien’s detention, “not the immigration detainer.” Id. at 436 n.2. The notification requirement raises no Fourth Amendment problem. The district court’s injunction as to the notification provision is baseless. II. The Remaining Stay Factors Strongly Favor Staying the District Court’s
Injunction of SB 4’s Detainer Provision The remaining stay factors strongly support a stay. Independent of the parties, the injunction of SB 4’s detainer provision harms the United States’ ability to enforce immigration law. By interfering with State cooperation in immigration enforcement, the injunction harms the federal government’s efforts to remove criminal aliens in many ways: it impinges on core Executive functions, offends the separation of powers, undermines federalism, and causes “considerable administrative burden on [DHS].” See INS v. Legalization Assistance Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in chambers). And by declaring likely unlawful the Executive’s cooperation with Texas
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local officers relying on federal immigration detainers for immigration enforcement, the district court has stifled “statutes enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1301 (2010) (Roberts, C.J., in chambers).
The injunction also causes “ongoing and concrete harm to [the United States’] law enforcement and public safety interests” in Texas. Id.. Cooperation with detainers increases overall safety and enforcement efficiency with respect to criminal aliens. See Ex. 1, Decl. of Corey Price, ¶¶ 5-8. If detainers become inoperative in Texas, ICE will experience significant detrimental impacts to enforcement efforts, including: (1) increased public-safety and officer-safety risks, with criminal aliens being released into the communities, potentially re-offending, and requiring at-large apprehensions in uncontrolled and potentially dangerous public spaces; (2) operational inefficiency, as it takes ICE four times as long to conduct at-large arrests than to arrest aliens at jails and prisons, thereby sapping time and resources from other mission-sensitive tasks; and (3) diminished enforcement, given the need to expend resources on apprehending aliens released at large, which limits the number of criminal aliens that can be apprehended. Id.
Those harms are immediate. With few exceptions, Texas law enforcement agencies cooperate with detainers. In fiscal year 2016 in Texas, ICE issued 19,607 detainers, and as of August 27, 2017, that number was 25,520 for fiscal year 2017. Id. ¶¶ 9-11. And some counties in the Western District alone are so remote that, without cooperation with detainer requests, ICE would likely be unable to arrive in time to take
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custody. The district court did not account for these harms. The court did assert that “[l]ocal cooperation, under the rubric of federal law, will not change” under its ruling. Slip op. 91. That is wrong. The injunction hobbles SB 4’s efforts to require recalcitrant localities—local jurisdictions that bar local law enforcement from aiding federal immigration enforcement—to cooperate with federal authorities. And because the court declared local cooperation with federal immigration warrants and detainer requests to be likely unconstitutional absent probable cause of criminality, jurisdictions throughout Texas will likely modify their cooperation policies to avoid the threat of Fourth Amendment liability caused by the court’s decision.
By contrast, the plaintiffs will suffer relatively slight harm from having to comply with ICE detainers, particularly given that each has cooperated with detainers in full or in part until now. It is no harm to comply with a lawful exercise of a State’s authority over its subsidiaries compelling cooperation with federal requests that comply with the Fourth Amendment. ICE detainers request assistance to help facilitate the removal of removable criminal aliens for whom there is no entitlement to be sheltered from ICE’s custody. Any intrusion on local decision-making is strongly outweighed by the harm to the federal government’s ability to remove dangerous aliens in Texas.
The other interests of the public and of third parties also favor a stay. By preventing DHS from implementing its chosen approach for best administering the immigration laws in Texas, the injunction harms the public, by preventing prompt removal of dangerous criminals and the constitutional actions of elected officials from
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working as Congress intended. See Nken v. Holder, 556 U.S. 418, 436 (2009); United States

v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001). These considerations again

outweigh those on the other side, especially given that removable aliens subject to

detainers have no entitlement to avoid immigration custody pending adjudication of

their removability. See Demore v. Kim, 538 U.S. 510, 533 (2003).

CONCLUSION

The district court’s injunction of SB 4’s detainer provision should be stayed

pending resolution of this appeal. At the least, the injunction should be stayed to the

extent that it enjoins compliance with notification requests in federal detainers.

Dated: September 8, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation

/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel U.S. Department of Justice Civil Division 450 5th Street, NW Washington, D.C. 20530 Tel: 202-307-4293 erez.r.reuveni@usdoj.gov

Counsel for United States of America

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CERTIFICATE OF SERVICE I certify that on September 8, 2017, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to the attorneys of record for all parties.
/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel U.S. Department of Justice
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CERTIFICATE OF COMPLIANCE 1. I certify that (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper document, 5th Cir. R. 25.2.1; and (3) the electronic submission has been scanned with the most recent version of commercial virus-scanning software and was reported free of viruses. 2. I certify that this response complies with the type-volume requirement of Federal Rule of Appellate Procedure 27(d)(1) and (2) because is not more than 5,200 words or 20 pages, and complies with the typeface requirements of Rule 32(a)(5) and (6) because it was prepared using 14-point Garamond typeface.
/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel U.S. Department of Justice
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Case: 17-50762 Document: 00514152364 Page: 1 Date Filed: 09/12/2017

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
September 12, 2017

Mr. Erez Reuveni U.S. Department of Justice, Office of Immigration Litigation Civil Division 450 5th Street, N.W. Liberty Square Building Washington, DC 20001

No. 17-50762

City of El Cenizo, Texas, et al v. State of Texas, et al USDC No. 5:17-CV-404 USDC No. 5:17-CV-459 USDC No. 5:17-CV-489

Dear Mr. Reuveni,
The following pertains to your Amicus brief electronically filed on September 12, 2017.
We filed your brief. However, you must make the following correction by tomorrow, September 13, 2017.
You need to correct or add:
Caption on the brief does not agree with the caption of the case in compliance with FED R. APP. P. 32(a)(2)(C). Caption must exactly match the Court's Official Caption (See Official Caption below) The full caption is required on the front of your brief and it may extend onto the second page if necessary.
Note: Once you have prepared your sufficient brief, you must electronically file your 'Proposed Sufficient Brief' by selecting from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further corrections are necessary. The certificate of service/proof of service on your proposed sufficient brief MUST be dated on the actual date that service is being made. Also, if your brief is sealed, this event automatically seals/restricts any attached

Case: 17-50762 Document: 00514152364 Page: 2 Date Filed: 09/12/2017
documents, therefore you may still use this event to submit a sufficient brief.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Shawn D. Henderson, Deputy Clerk 504-310-7668
cc: Mr. J. Campbell Barker Ms. Jo Anne Bernal Mr. Christopher Coppola Mr. Ari Cuenin Ms. Laurie R. Eiserloh Mr. Charles S. Estee Mr. Lee P. Gelernt Mr. Renea Hicks Mr. Lonny Jacob Hoffman Mr. Omar C. Jadwat Mr. Scott A. Keller Ms. Deborah Lynne Klein Mr. Timothy Robert Labadie Mr. Ronald Charles Lewis Mr. Grant Bellows Martinez Mr. Darren Lee McCarty Ms. Mary B. McCord Ms. Celina Y. Moreno Mr. Anthony J. Nelson Mr. Efren Carlos Olivares Ms. Collyn Ann Peddie Ms. Nina Perales Mr. Rolando Leo Rios I Mr. Edgar Saldivar Mr. John Paul Salmon Mr. Andre Segura Mr. Michael Siegel Ms. Sherine Elizabeth Thomas Mr. Eric A. White Mr. Richard Paul Yetter

Case: 17-50762 Document: 00514152364 Page: 3 Date Filed: 09/12/2017
Case No. 17-50762
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY; CITY OF EL PASO,
Plaintiffs - Appellees CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS; THE CITY OF HOUSTON,
Intervenors - Plaintiffs - Appellees v. STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General,
Defendants - Appellants
---------------------------------------------------------------------------------------------------------------------------EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; MOVE San Antonio,
Plaintiffs - Appellees v. STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety,
Defendants - Appellants --------------------------------------------------------------------------------------------------------------------------CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT,
Plaintiffs - Appellees CITY OF AUSTIN,
Intervenor Plaintiff - Appellee

Case: 17-50762 Document: 00514152364 Page: 4 Date Filed: 09/12/2017
v. STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas,
Defendants - Appellants

 
 No. 17-50762
In the United States Court of Appeals for the Fifth Circuit
CITY OF EL CENIZO, TEXAS; RAUL L. REYES; TOM SCHMERBER; MARIO A. HERNANDEZ; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK
COUNTY; CITY OF EL PASO; EL PASO COUNTY; RICHARD WILES; TEXAS ORGANIZING PROJECT EDUCATION FUND; CITY OF SAN ANTONIO; REY A. SALDANA; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INC.; WORKERS DEFENSE PROJECT; BEXAR
COUNTY, TEXAS; MOVE SAN ANTONIO, Plaintiffs-Appellees,
CITY OF AUSTIN; JUDGE SARAH ECKHARDT; SHERIFF SALLY HERNANDEZ; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; TEXAS ASSOCIATION OF HISPANIC
COUNTY JUDGES AND COUNTY COMMISSIONERS; AND CITY OF HOUSTON, Intervenor Plaintiffs-Appellees,
v.
STATE OF TEXAS; GREG ABBOTT; KEN PAXTON; STEVE MCCRAW, Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-404, 5:17-cv-459, 5:17-cv-489
BRIEF OF APPELLEES CITY OF SAN ANTONIO, TEXAS, REY A. SALDAÑA, TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION, LA UNION DEL PUEBLO ENTERO, WORKERS DEFENSE PROJECT, TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, EL PASO COUNTY, RICHARD WILES, AND
THE TEXAS ORGANIZING PROJECT EDUCATION FUND IN OPPOSITION TO APPELLANT’S EMERGENCY MOTION TO STAY
PRELIMINARY INJUNCTION PENDING APPEAL

Thomas A. Saenz Nina Perales
John Paul Salmon Celina Y. Moreno
MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND
110 Broadway, Suite 300 San Antonio, Texas 78205
Telephone: (210) 224-5476 Facsimile: (210) 224-5382

Deborah Lynne Klein CITY OF SAN ANTONIO
Office of the City Attorney Litigation Division
Frost Bank Tower 100 W. Houston St., 18th Floor
San Antonio, Texas 78205 Telephone: (210) 207-8940
Facsimile: (210) 207-4357

Yolanda G. Garcia

Jose F. Sanchez

David W. Dummer

SIDLEY AUSTIN LLP

D. Benjamin Thomas

555 West Fifth Street, Suite 4000

Cory D. Szczepanik

Los Angeles, CA 90013

SIDLEY AUSTIN LLP

Telephone: (213) 896-6000

2021 McKinney Avenue, Suite 2000 Facsimile: (213) 896-6600

Dallas, TX 75201

Telephone: (214) 981-3300

Facsimile: (214) 981-3400

Robin E. Wechkin SIDLEY AUSTIN LLP
701 5th Avenue, Suite 4200 Seattle, WA 98104
Telephone: (415) 439-1799
Facsimile: (415) 772-7400

Efren Carlos Olivares SOUTH TEXAS CIVIL RIGHTS
PROJECT 1017 W. Hackberry Avenue
Alamo, TX 78516 Telephone: (956) 787-8171
Facsimile: (956) 787-6348

Mary B. McCord
INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION
Georgetown University law Center 600 New Jersey Avenue, NW
Washington, DC 20001
Telephone: (202) 661-6607

Rolando L. Rios
LAW OFFICE OF ROLANDO L. RIOS 115 E. Travis Street, Suite 1645
San Antonio, TX 78205 Telephone: (210) 222-2102
Facsimile: (210) 222-2898

ii

Jose Garza Michael Moran Martin Golando GARZA GOLANDO MORAN 115 E. Travis Street, Suite 1235 San Antonio, TX 78205 Telephone: (210) 892-8543
iii

CERTIFICATE OF INTERESTED PERSONS (1) Case No. 17-50762, City of El Cenizo, Texas et al. v. State of

Texas, et al.

(2) The undersigned counsel of record certifies that the following

listed persons or entities as described in the fourth sentence of Rule

28.2.1 have an interest in the outcome of this case. These

representations are made so that the judges of this Court may evaluate

possible disqualification or recusal.

PlaintiffsAppellees
League of United Latin American Citizens

Counsel for Plaintiffs-Appellees
Lee P. Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004

Renea Hicks
LAW OFFICE OF RENEA HICKS P.O. Box 303187
Austin, TX 78703

Stephen B. Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION
39 Drumm Street San Francisco, CA 94111

iv

Texas Organizing Project Education
Fund

Edgar Saldivar Andrew Segura AMERICAN CIVIL LIBERTIES UNION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004
Efren Carlos Olivares SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Avenue Alamo, TX 78516

Texas Association of Chicanos in Higher Education
La Union del Pueblo Entero, Inc. (which has no parent corporation or stockholders) Workers Defense Project

Mary B. McCord Joshua A. Geltzer Robert Friedman Daniel Rice INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND 110 Broadway Street, Suite 300 San Antonio, TX 78205 Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz (Address Above)
Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz (Address Above)

v

MOVE San Antonio
Texas Association of Hispanic County Judges and County Commissioners

Efren Carlos Olivares (Address Above)
Rolando Leo Rios LAW OFFICE OF ROLANDO L. RIOS 115 E. Travis Street, Suite 1645 San Antonio, TX 78205

vi

TABLE OF CONTENTS
Page(s)
Certificate of Interested Persons .............................................................. iv Table of Authorities .................................................................................viii Introduction ................................................................................................ 1 Argument .................................................................................................... 2 I. There Is No “Emergency” And The Applicable Factors Weigh
Heavily Against Granting A Stay..................................................... 2 II. The State Is Not Likely To Succeed On The Merits ........................ 7
A. SB 4’s Enforcement Assistance Provision Is Preempted........ 8 B. SB 4’s ICE Detainer Provision Violates The Fourth
Amendment ............................................................................ 12 1. Fourth Amendment application to non-citizens.......... 12 2. The relationship between Fourth Amendment and
preemption analyses ..................................................... 13 3. Criminal probable cause v. probable cause of
removability .................................................................. 15 4. “Collective knowledge.”................................................. 16 5. Purported consequences beyond SB 4.......................... 18 C. SB 4’s Endorsement Prohibition Violates The First Amendment ............................................................................ 19 1. The term “endorse” is not susceptible to the State’s
revision .......................................................................... 19 2. Remedy .......................................................................... 22 Conclusion ................................................................................................. 23 Certificate of Compliance ......................................................................... 27 Certificate of Service ................................................................................ 27
vii

TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. United States, 567 U.S. 387 (2012) .................................................... 8, 9, 11, 12, 14, 15
Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013)................................................................ 20
Barnes v. E–Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301 (1991) (Scalia, J., in chambers) ..................................... 2
Belcher v. Birmingham Tr. Nat’l Bank, 395 F.2d 685 (5th Cir. 1968).................................................................. 2
Castro v. Cabrera, 742 F.3d 595 (5th Cir. 2014)................................................................ 13
Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) .............................................................................. 12
Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. Unit B. Nov. 1981) ............................................ 5
Evett v. DETNTFF, 330 F.3d 681 (5th Cir. 2003)................................................................ 17
Ingebretsen on Behalf of Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996).................................................................... 6
Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619 F.3d 346 (5th Cir. 2010).......................................................... 19, 23
Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006)................................................................ 13
viii

Mercado v. Dallas Cty., 229 F. Supp. 3d 501 (N.D. Tex. 2017) ................................................. 15
Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015) ................................................................ 13
Nken v. Holder, 556 U.S. 418 (2009) ............................................................................ 2, 6
Oaks of Mid City Resident Council v. Sibelius, 723 F.3d 581 (5th Cir. 2013).................................................................. 7
Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013).......................................................... 15, 17
Santoyo v. United States, 2017 WL 2896021 (W.D. Tex. June 5, 2017)....................................... 15
Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016)................................................................ 20
Texas v. United States, 787 F.3d 733 (5th Cir. 2015).................................................................. 3
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) ............................................................................ 3
United States v. Ibarra, 493 F.3d 526 (5th Cir. 2007)................................................................ 16
United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)................................................................ 13
United States v. Stevens, 559 U.S. 460 (2010) ........................................................................ 19, 22
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013) (en banc)................................................ 18
Whole Woman’s Health v. Lakey, 135 S. Ct. 399 (2014) .............................................................................. 3
ix

Statutes 8 U.S.C. § 1103 ......................................................................................... 11 8 U.S.C. § 1252 ......................................................................................... 11 8 U.S.C. § 1324 ......................................................................................... 11 8 U.S.C. § 1357 ..................................................................................... 9, 10 Act of May 7, 2017, 85th Leg. R.S., ch. 4 ................................................... 5 SB 4 § 2.251 (Tex. Crim. Proc. Code Art. 2.251) ................................. 4, 12 SB 4 § 39.07 (Tex. Pen. Code § 39.07).................................................. 4, 17 SB 4 § 752.051 (Tex. Gov’t Code § 752.051) ...................................... 18, 21 SB 4 § 752.053 (Tex. Gov’t Code § 752.053) .............................. 8, 9, 18, 20 SB 4 § 752.0565 (Tex. Gov’t Code § 752.0565) ........................................ 20 Other Authorities 8 C.F.R. § 287........................................................................................ 4, 18
x

INTRODUCTION
The State of Texas argues that it is entitled to a stay to forestall the “emergency” that would result if SB 4 is not made effective immediately. Relying on two-year-old headlines from a different jurisdiction, the State claims that it will suffer irreparable harm if the enforcement of highly controversial legislation is delayed for even a matter of weeks. Setting aside the State’s scare tactics, there is no support for the claim that an emergency of any sort is involved here. The State cites no evidence showing that it faces a danger of irreparable harm, and the imagined harms it conjures stem from a misreading of the District Court’s order.
Meanwhile, in the proceedings below, the State conceded that enforcement of an unconstitutional statute constitutes irreparable harm. The State neither explains away that concession nor attempts to reckon with the District Court’s detailed findings that Plaintiffs face harm in the form of steep fines, removal from office and jail time, while the public is threatened with innumerable injuries to its most vulnerable members, as well as the risk of disorder that would follow if local police are unable to ensure that all members of local communities may participate in public safety efforts.
The State has not shown that it is likely to succeed on the merits either. In an exceptionally thorough decision, the District Court
1

concluded that certain provisions of SB 4 are likely preempted, while others are likely to fail on First Amendment, Fourth Amendment or due process grounds. In each instance, the District Court drew its injunction narrowly, and in each instance its conclusions are solidly grounded in controlling law. The Court should deny the State’s motion.
ARGUMENT
I. There Is No “Emergency” And The Applicable Factors Weigh Heavily Against Granting A Stay. A stay is an “extraordinary remedy.” Belcher v. Birmingham Tr.
Nat’l Bank, 395 F.2d 685, 685 (5th Cir. 1968). A court considers four factors in deciding whether to grant a stay pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009). The moving party carries the burden of satisfying these factors. Significantly, “the conditions that are necessary for issuance of a stay are not necessarily sufficient. Even when they all exist, sound equitable discretion will deny the stay when a decided balance of convenience does not support it.” Barnes v. E– Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers).
2

Purported harm to the State. In this case, the balance tilts decisively against a stay. It is the State that seeks to alter the status quo during the pendency of this appeal: SB 4 has never been in effect. Given this, the State is left to argue that “States necessarily suffer irreparable harm when their public-safety statutes are enjoined.” Mot. at 19–20 (citing Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)). But this observation plainly does not resolve the balance of harms analysis. If it did, then no order enjoining the enforcement of a law could ever issue – and if any injunction were to be entered, it would always be stayed on appeal. This is not the law. Governmental edicts are routinely enjoined during the pendency of litigation, despite requests for stays. E.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087–88 (2017); Whole Woman’s Health v. Lakey, 135 S. Ct. 399 (2014); Texas v. United States, 787 F.3d 733, 768 (5th Cir. 2015).
The State also claims that SB 4 must be given effect immediately because the District Court’s order would interfere with voluntary compliance programs and cooperation efforts that “have existed throughout the Nation since at least the 1940s.” Mot. at 2. This is incorrect. The District Court did not enjoin any voluntary cooperation between localities and federal immigration officials.
This is plainly the case with respect to the District Court’s ruling on SB 4’s ICE detainer provisions. The Court enjoined, until a hearing
3

on the merits, enforcement of the provision that makes compliance with
detainer requests mandatory, together with the accompanying criminal
penalty provision. Order at 4; SB 4 §§ 2.251(a)(1) & 39.07. The
injunction does not affect any current voluntary cooperation between
local jurisdictions and the federal government. Indeed, as the State
recognizes, local jurisdictions “were already complying with [ICE
detainers] . . . based on the federal government’s [request]” prior to the
enactment of SB 4. Mot. at 1. The District Court’s injunction does not
change this landscape.1
Similarly, the District Court’s order permits local jurisdictions to
continue to set policy on and supervise their individual officers’
cooperation with federal immigration officials. The District Court took
pains to explain that local cooperation with federal enforcement efforts,
through formal agreement with the Attorney General or otherwise,
remains unchanged, as do local practices of voluntary compliance with
ICE detainer requests. E.g., Order at 28-30, 78-80, 91.2
1 This disposes of the State’s submission of the declaration of the Tarrant County Sheriff, who expresses concern about whether officials will continue to have the ability to comply with ICE detainers “on a voluntary basis.” Ex. 42 ¶ 3. The order does not alter that ability. The Sheriff also states that a formal agreement between his office and ICE under a Section 287(g) contract may be in jeopardy. Id. ¶ 5. This too is unfounded. Order at 91 (“Local cooperation, under the rubric of federal law, will not change”). 2 There is accordingly no basis for the concern expressed by the Director of the Texas Department of Public Safety (DPS) that cooperation with
4

The terms of the District Court’s injunction pertain to the enforcement of SB 4 and SB 4 only. Order at 93-94. The legal landscape today is the same as the landscape on August 29, 2017, the day before the District Court issued its order – save for the fact that those provisions of SB 4 whose enforcement was not enjoined are now in effect. Neither the State’s misreading of the terms of the injunction nor its sky-is-falling rhetoric can manufacture harms.
Harm to Plaintiffs and the public. On the other side of the ledger, the record could not be clearer that Plaintiffs are at risk of irreparable harm. Indeed, it is not difficult to see why the State conceded harm below. As the District Court stated, “federal courts at all levels have recognized that a violation of constitutional rights constitutes irreparable harm as a matter of law and no further showing of irreparable injury is necessary.” Order at 88 (citing authorities); see also, e.g., Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B. Nov. 1981) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)).
federal immigration officials will be prohibited. See Mot. Ex. 41 ¶¶ 2-3. And state actors such as DPS officers are outside the scope of SB 4 in any event. See Tex. S.B. 4, 85th Leg., R.S. (2017) (“AN ACT relating to the enforcement by campus police departments and certain local governmental entities of state and federal laws governing immigration . . . . ”) (emphasis added).
5

Beyond this general harm, the District Court found, on the basis
of copious evidence, that Plaintiffs, their officials and their constituents
would face “a long list” of imminent and concrete harms if the
unconstitutional provisions of SB 4 were enforced. Order at 88. These
include: ● Harm to a broad range of local officials faced with civil penalties up to $25,500 per offense and removal from office for continuing or even expressing support for practices that differ from SB 4, id.; ● Harm to local jail officials faced with criminal prosecution and jail time of their own if they do not comply with all ICE detainer requests, id.; ● Harm faced by Plaintiffs if police forces are unable to craft policies that protect public safety by ensuring communication with all members of the community, id. at 89. The risk – indeed, the certainty – of harm to the public from
enforcement of the challenged provisions is equally clear. The public
has no interest in the implementation of an unconstitutional law. See
Ingebretsen on Behalf of Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d
274, 280 (5th Cir. 1996); cf. Nken, 556 U.S. at 436 (“there is a public
interest in preventing aliens from being wrongfully removed”). Beyond
this general principle, the District Court again found numerous specific
and concrete harms, concluding that “there is overwhelming evidence
by local officials, including local law enforcement, that SB 4 will erode
public trust and make communities and neighborhoods less safe.” Order
at 92. This “overwhelming” showing included, among other things,
6

● Evidence that crime victims will be reluctant to come forward to assist local officials in apprehending and convicting the perpetrators, id. at 89-90;
● Evidence that undocumented students will be targeted, id. at 89; ● Evidence that undocumented residents and their US-citizen
relatives will be reluctant to send their children to school, attend church, report housing problems, and seek health care, id. at 90; ● Evidence that local jurisdictions will face severe economic consequences from the implementation of SB 4, id. The District Court’s factual findings on all of these points are entitled to
deference. Oaks of Mid City Resident Council v. Sibelius, 723 F.3d 581,
585 (5th Cir. 2013). Notably, these findings are directly relevant to the
balance of harm analysis required by the State’s stay motion. The
harms that the District Court found will occur if enforcement of SB 4 is
not enjoined are exactly the same as the harms that will occur if a stay
is imposed during appeal and SB 4 becomes effective immediately.
The State nevertheless blithely opines that “a stay pending appeal
creates no meaningful possibility of injury to plaintiffs.” Mot. at 20. But
the State does not even attempt to refute the District Court’s findings of
harm. Nor does the State try to explain away its own previous
concession of irreparable harm to Plaintiffs. Order at 87. The State’s
conclusory and self-contradictory assurance that Plaintiffs and the
public face no harm cannot be credited. II. The State Is Not Likely To Succeed On The Merits
The State is unlikely to succeed on the merits for all of the reasons
set forth in the District Court’s exceptionally detailed and thorough
7

decision. The District Court reviewed hundreds of pages of briefing and considered and heard extensive argument and evidence during a daylong hearing. In its 94-page decision, the District Court meticulously analyzed the parties’ complex constitutional arguments and made detailed factual findings. It is difficult to see, given the District Court’s careful attention and thorough analysis, why the State is “likely” to succeed where it has failed before.
We discuss below the District Court’s holdings on field preemption and on the First and Fourth Amendments. We join and incorporate by reference the El Cenizo Plaintiffs’ brief with respect to all other issues.
A. SB 4’s Enforcement Assistance Provision Is Preempted
Under the Supremacy Clause, state laws must “give way to federal law” when they are either expressly or impliedly preempted by Acts of Congress. Arizona v. United States, 567 U.S. 387, 399 (2012). Implied preemption – which is at issue here – encompasses field and conflict preemption, which are independent bases on which state legislation may be preempted. In this case, the District Court concluded that Plaintiffs are likely to succeed in showing that SB 4’s enforcement assistance provision is preempted on both field and conflict grounds.
The provision at issue – Section 752.053(b)(3) – bars local entities from prohibiting or “materially limiting” their employees’ actions in
8

“assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” The effect of this provision is to strip local police chiefs and sheriffs of the ability to supervise their individual officers in deciding whether, when and how to assist federal immigration agents in their enforcement efforts.
The District Court concluded that this provision is likely preempted because federal law fully regulates local cooperation with federal immigration enforcement. Order at 26. As the District Court properly noted, “when Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Order at 6 (citations omitted). The District Court further explained that “field preemption can be inferred from ‘pervasive’ federal regulation or a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Id. at 7 (citing Arizona, 567 U.S. at 399).
Reviewing the relevant sections of the Immigration and Naturalization Act (INA), including the detailed provisions governing state and local cooperation with federal enforcement efforts in 8 U.S.C. Section 1357(g), the District Court concluded that the “exacting” federal requirements for local involvement in federal immigration enforcement “indicate [that] Congress intended for the Federal Government – the Attorney General in particular – to provide oversight and direction to
9

local officers.” Order at 25. After considering the INA “as a whole and identifying its purpose and intended effects,” the District Court found that, with respect to SB 4’s enforcement assistance provision, “the federal interest in the field of immigration enforcement is so dominant that it may preclude enforcement of state laws on this subject and Tex. Gov't Code § 752.053(b)(3) is likely to be field preempted.” Order at 26.
The State does not confront this ruling on its terms. Instead, the State confuses the analysis by attacking the District Court’s “field and conflict” preemption holdings together, without distinguishing between them. Mot. at 9, 11. But the doctrines of field and conflict preemption are distinct, as are the District Court’s two holdings, Order at 24-27 – and each is correct on its own terms.
With respect to field preemption, the State cannot (and does not) deny that the federal government has a dominant interest in regulating local participation in federal immigration enforcement. Indeed, the United States explicitly made this point in the briefing below, arguing that the INA includes a “comprehensive” scheme for “state and local cooperation in enforcement of the INA.” Dkt. No. 90 at 2-11, 16-24.
The United States was correct. A web of detailed statutory provisions regulates local involvement in immigration enforcement and permits local enforcement of federal immigration laws only in narrow and carefully defined circumstances. See, e.g., 8 U.S.C. § 1357(g) (providing for state and local authority to enforce immigration law
10

pursuant to a written agreement, federal training and federal supervision); 8 U.S.C. § 1252(c) (providing for state and local authority to enforce criminal illegal reentry provisions with prior status confirmation from INS); 8 U.S.C. § 1324(c) (providing state and local authority to enforce federal alien harboring provisions); 8 U.S.C. § 1103(a)(10) (providing state and local authority to enforce immigration laws during a mass influx); see also Arizona, 567 U.S. at 401 (concluding based on this framework that provision of Arizona immigration law was field preempted).
The State relies on the narrow savings clause in subsection 1357(g)(10)(B) to argue that this detailed framework can be set aside in addressing the question of whether states are permitted to legislate in this field. See Mot. at 9-11. This is not tenable. The savings clause does not trump the rest of the INA. As the District Court properly found, “Congress sought to ensure that the Attorney General and the Federal Government retained enforcement direction and discretion in all local enforcement efforts” – and this specifically includes those efforts “contemplated under subsection (g)(10).” Order at 25.
The State cannot avoid this result with the assertion that SB 4’s enforcement assistance provision merely “seek[s] to enforce” or “trace” subsection (10)(B). Mot. at 11 (citing Chamber of Commerce v. Whiting, 563 U.S. 582, 602, 607 (2011)). Even if this were correct, it would only prove that the provision is preempted. The Supreme Court has stated
11

unambiguously that even “complementary” state laws that are “parallel to federal standards” are preempted if the federal government occupies the relevant field. Arizona, 567 U.S. at 401. Whiting, on which the State relies, is not contrary. Whiting is not a field preemption case at all. The regulation there, moreover, was specifically covered by a savings clause related to in-state business licensing – a subject that the Supreme Court expressly stated had “never been considered [] an area of dominant federal concern.” Whiting, 563 U.S. at 604. Local collaboration in immigration enforcement, by contrast, is a central concern of the INA, and there is no language in the INA authorizing individual local officers to decide whether, when and how to provide federal enforcement assistance. Whiting cannot save SB 4’s enforcement assistance provisions from field preemption.
B. SB 4’s ICE Detainer Provision Violates The Fourth Amendment
The District Court held that Plaintiffs are likely to succeed with their Fourth Amendment challenge to SB 4’s detainer provision, which mandates compliance with all ICE detainer requests, regardless of a local officer’s own conclusions as to whether he or she has probable cause for a seizure. SB 4 § 2.251(a)(1); Order at 61-81. Each of the State’s attacks on the District Court’s ruling is fatally flawed.
1. Fourth Amendment application to non-citizens. The
State cannot and does not dispute that when local officials act on a
12

detainer request, they perpetrate a new seizure for Fourth Amendment
purposes. Morales v. Chadbourne, 793 F.3d 208, 217 n.3 (1st Cir. 2015).
Instead, the State argues that non-citizens simply have no Fourth
Amendment rights at all. Mot. at 4. This is wrong. This Court has
“explicitly held . . . that the Fourth Amendment applies to aliens.”
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624 (5th Cir. 2006). Any
person with a substantial connection to the United States enjoys the
protection of the Fourth Amendment while in this country, id., and this
encompasses the vast majority of immigrants who live and work in the
United States, whether undocumented or not.3
2. The relationship between Fourth Amendment and
preemption analyses. The State’s leading argument is that the
District Court made a “doctrinal move [that] is unprecedented” when it
considered local officials’ authority to detain potentially removable
persons as part of the Fourth Amendment analysis. Mot. at 5-7.
3 The State’s authorities do not hold otherwise. In Castro v. Cabrera, 742 F.3d 595, 599 (5th Cir. 2014), this Court recognized that “[a]s a general matter, [the Fourth Amendment] applies to aliens within U.S. territory.” This is the opposite of the proposition for which the State cites the decision. United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), was a Second Amendment decision, and the Court’s passing dictum concerning the scope of the Fourth Amendment does not displace the explicit pronouncements of Martinez-Aguero and Castro.
13

According to the State, the question of authority to detain in this context
relates solely to preemption, while the question of whether a seizure is
constitutional under the Fourth Amendment is determined solely by
reference to reasonableness. The State argues that it is error to consider
the two issues together.
No authority the State cites supports the proposition that reasonableness under a Fourth Amendment analysis can be divorced from questions relating to the detaining officer’s authority. Beyond this, the State’s argument is plainly refuted by Arizona, where the Supreme Court recognized that matters concerning a local officer’s authority to detain persons for immigration violations – which are governed by the Supremacy Clause – are intertwined with issues concerning the detainee’s Fourth Amendment rights. The Arizona Court thus explained that if “state officers [are] required to delay the release of some detainees for no reason other than to verify their immigration status,” this “raise[s] constitutional issues” – specifically, Fourth Amendment issues. 567 U.S. at 413 (citing authorities related to unlawful seizures; emphasis added). The Supreme Court’s reasoning, by its own terms, applied only to state or local officers; the Court did not suggest that duly authorized federal officers need any “other reason” for detaining a person beyond probable cause of removability. But when local officers are responsible for such a detention, the Supreme Court
14

explained, Fourth Amendment concerns are implicated. Id. A Fourth Amendment violation can thus occur when potentially removable persons are detained by local officers precisely because local officers do not have the same authority as federal officers.
3. Criminal probable cause v. probable cause of removability. The State next argues that the District Court erred in holding that local officials may “detain individuals only for crimes.” Mot. at 8 (emphasis in original). But this holding too flows directly from Arizona. After noting that unauthorized presence in this country is generally not a crime, the Supreme Court concluded that when a local officer stops or detains a person based on suspicion of removability, “the usual predicate for arrest is absent.” 567 U.S. at 407. Local officers who make warrantless seizures based solely on probable cause of removability thus violate the Fourth Amendment. Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 464 (4th Cir. 2013) (applying Arizona to affirm finding of Fourth Amendment violation under such circumstances). Given the clarity of this law, district courts within this Circuit have now twice held or otherwise stated that probable cause of removability does not cure the Fourth Amendment violation that occurs when local officials detain individuals in the absence of probable cause of
15

a crime. Mercado v. Dallas Cty., 229 F. Supp. 3d 501, 510-15 (N.D. Tex. 2017); Santoyo v. United States, 2017 WL 2896021 (W.D. Tex. June 5, 2017).
Against this background, the District Court properly concluded that Plaintiffs are likely to succeed with their claim that SB 4’s detainer provisions are inconsistent with the Fourth Amendment. Those provisions improperly mandate that state officials seize individuals on the basis of a federal form stating only that probable cause of removability exists. The State cites no decision holding that local officials may constitutionally detain an individual on probable cause of removability – much less that local officials must cede to third parties their duty to make a probable cause determination.
4. “Collective knowledge.” The constitutional infirmity of SB 4 is not cured by the principle of “collective knowledge,” pursuant to which the State suggests that “ICE’s particularized determination of probable cause” may be imputed to local officials. Mot. at 8. The State cites no authority applying the collective knowledge doctrine to the immigration context, and it is not difficult to see why. That doctrine applies only where there is “some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). But
16

an ICE detainer request does not relay facts about removability, much
less facts about which the requesting officer purports to have personal
knowledge. Form I-247, on which the State relies, contains only a
conclusion about removability. Ex. A. In all events, the I-247 Form is
a one-way street; it does not reflect the kind of two-sided exchange
normally signified by the term “communication.”4
Beyond this, while the collective knowledge doctrine may in certain circumstances permit the pooling of personal factual knowledge among officers, it does not permit the detaining officer to simply abdicate Fourth Amendment responsibilities. See Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (officers “may not disregard facts tending to dissipate probable cause”). But this is exactly the mechanism of SB 4. Under SB 4, local officers have no ability at all to assess criminal probable cause, which appears to be simply left out of the equation. As to probable cause of removability, local officials are permitted to decline detainer requests only if a detainee provides “a
4 The State cites Santos for the purported proposition that “state detentions for civil immigration violations are lawful when at ‘direction or authorization by federal officials.’” Mot. at 8 (citing Santos, 725 F.3d at 466). But Santos contains no such holding; the situation in Santos did not involve any such “direction or authorization.” In any event, Santos held that the existence of a civil ICE warrant did not provide state officers with probable cause to detain a removable individual. 725 F.3d at 465.
17

Texas driver’s license or similar government-issued identification” showing that he or she is a citizen or has “lawful immigration status.” SB 4 § 39.07(c). But that simply opens up new difficulties. Local officials have no training to determine “lawful immigration status,” and, indeed, are prohibited from doing so under the Supremacy Clause. Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 531-34 (5th Cir. 2013) (en banc) (law preempted where local actors would need to determine whether non-citizens are “lawfully present”) (plurality op.).
5. Purported consequences beyond SB 4. Finally, the State speculates that the District Court’s order may jeopardize contracts between local and federal officials under Section 287(g) of the INA. Mot. at 9. That speculation has no basis in the District Court’s order. Supra at 3-4. Nor does that ruling reach information-sharing practices, which the State also surmises it may prohibit. Mot. at 9. The order applies only to those provisions of SB 4 that “mandate[]” that law enforcement agencies “effect a seizure simply because it was requested by ICE.” Order 75. Information-sharing is not a seizure.
18

C. SB 4’s Endorsement Prohibition Violates The First Amendment
Finally, the State has not shown that it is likely to succeed in its challenge to the District Court’s First Amendment holding. In an attack on protected speech, SB 4 makes it unlawful for any officer or employee of a municipality, county or special district to “endorse” a policy that “prohibits or materially limits the enforcement of immigration laws.” SB 4 §§ 752.051; 752.053(a)(1).
In holding that Plaintiffs are likely to succeed in their challenge to the “endorsement” clause of Section 752.053(a)(1), the District Court properly concluded that “endorse,” as used in the statute, “could mean a recommendation, suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is generally conveyed openly or publicly.” Order at 41. The State implicitly concedes that if this interpretation is correct, Section 752.053(a)(1) violates the First Amendment. Indeed, no other position is tenable. See, e.g., Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619 F.3d 346, 359 (5th Cir. 2010) (“viewpoint-based burdens [on speech] are unconstitutional”).
1. The term “endorse” is not susceptible to the State’s
revision. Given its implicit concession, the State is left to argue that
the District Court erred insofar as it declined to accept the State’s
invitation to construe the term “endorse” to mean “sanction,” which in 19

turn could be understood to mean “ratify[,] confirm, . . . authorize[, ] permit[, or] countenance.” Mot. at 15.5 But accepting the State’s position would require rewriting, not construing, the statute, and that is impermissible. United States v. Stevens, 559 U.S. 460, 481 (2010) (courts “may impose a limiting construction on a statute only if it is readily susceptible to such a construction”) (internal quotations omitted); see also Serafine v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016) (courts must use caution when considering limiting constructions in overbreadth cases). SB 4 makes it unlawful for local entities to “adopt, enforce, or endorse” certain policies. § 752.053(a)(1). A local entity that “ratifies,” “authorizes,” or “permits” a policy – the State’s interpretation of “endorse” – has also necessarily “adopted” it. Under the State’s proposed interpretation, the term “endorse” would thus be rendered surplusage. This too is impermissible. Courts must read statutes to give effect to every word. E.g., Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 628 (5th Cir. 2013).
5 The State erroneously claims that the District Court never considered its argument that “endorse” could be given a narrowing construction. Id. This is incorrect. Order at 40 (considering and rejecting State’s argument “that ‘endorse’ could mean ‘authorize’”).
20

The State’s interpretation of “endorse” is also undermined by other provisions of SB 4 and its legislative history. When the author of SB 4 was questioned about the meaning of “endorse” in a floor debate, he answered that it meant, among other things, to “support” and “identify with.” Order at 38. This understanding is reflected in the enacted bill: Section 752.0565(b) provides that “a statement by [a] public officer” – that is, speech itself, without further acts of ratification – constitutes evidence of a Section 752.053 violation.
The State nevertheless seeks to support its interpretation of “endorse” by arguing that SB 4 is concerned only with “local entities’ use of their governmental power,” and that therefore “endorse” must be limited to official acts of authorization, ratification, or the like. Mot. at 15. This argument too is undermined by the text of the statute. SB 4’s endorsement prohibition applies to any “local entity,” which is defined to include any “officer or employee” of a municipality, county, or special district. SB 4 § 752.051(5). This includes employees such as janitors, groundskeepers, administrative assistants and parking attendants – certainly not people who undertake official acts of authorization. The broad reach of Section 752.053(a) is incompatible with the State’s attempt to limit “endorse” to such acts.
Finally, the State’s preferred definition of “endorse” as a synonym of “authorize” or “ratify” would introduce new First Amendment problems of its own. The State argued below that “endorsement,” under
21

its preferred definition, would occur when a superior expresses

agreement with a subordinate’s suggestion in a meeting. Dkt. No. 172

at 10. But the State identifies no limiting principle that would guide it

in deciding when an “expression of agreement” amounts to an

“authorization” or “ratification.” An “expression of agreement,”

moreover, might be made not only during a workplace meeting but also

during a press conference, at a campaign event, or even potentially in a

private setting. At a minimum, enforcement of the “endorse”

prohibition – even as the State would define it – will have a substantial

chilling effect. In the end, the State seems to be asking the Court to

trust it to exercise its discretion to prosecute only when there are no

First Amendment concerns. But this cannot be the solution to the

constitutional problem plainly posed by SB 4. The law is clear that

courts should not “uphold an unconstitutional statute merely because

the Government promised to use it responsibly.” Stevens, 559 U.S. at

480. 2.

Remedy. Alternatively, the State argues that the “district

court significantly erred as to remedy” by refusing to sever the word

“endorse” from Section 752.053(a)(1). Mot. at 15. This is a straw man.

Contrary to the State’s assertion, the District Court did not “enjoin[] the

entire statutory provision” on First Amendment grounds. Id. at 16.

The court instead carefully crafted the portion of its injunction resting 22

on the First Amendment to enjoin only “[t]he endorsement prohibition in Tex. Gov’t Code § 752.053(a)(1).” Order at 93 (emphasis added). The District Court enjoined the enforcement of other parts of Section 752.053(a)(1) as well, but did so on due process rather than First Amendment grounds. Id. at 93-94. The Court did not err as to remedy.
CONCLUSION The Court should deny the State’s motion to stay.
23

DATED: September 12, 2017

Respectfully submitted,
By /s/ Nina Perales Thomas A. Saenz Nina Perales John Paul Salmon Celina Y. Moreno MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382
Counsel for Plaintiffs-Appellees City of El Paso, City of San Antonio, Rey A. Saldana, Texas Association of Chicanos in Higher Education, La Union del Pueblo Entero, Inc., Workers Defense Project, and Bexar County, Texas
Deborah Lynne Klein CITY OF SAN ANTONIO Deputy City Attorney, Litigation Office of the City Attorney Litigation Division Frost Bank Tower 100 W. Houston St., 18th Floor San Antonio, Texas 78205 Phone: (210) 207-8940 Facsimile: (210)207-4357
Yolanda G. Garcia David W. Dummer D. Benjamin Thomas Cory D. Szczepanik SIDLEY AUSTIN LLP 2021 McKinney Avenue, Suite 2000
24

Dallas, TX 75201 Phone: (214) 981-3300 Facsimile: (214) 981-3400
Jose F. Sanchez SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Phone: (213) 896-6000 Facsimile: (213) 896-6600
Robin E. Wechkin SIDLEY AUSTIN LLP 701 5th Avenue, Suite 4200 Seattle, WA 98104 Phone: (415) 439-1799 Facsimile: (415) 772-7400
Counsel for Plaintiffs-Appellees City of San Antonio and Rey A. Saldana
/s/ Efren Carlos Olivares Efren Carlos Olivares SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Avenue Alamo, TX 78516 Telephone: (956) 787-8171 Facsimile: (956) 787-6348
Mary B. McCord INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University law Center 600 New Jersey Avenue, NW Washington, DC 20001 Telephone: (202) 661-6607
Counsel for Plaintiffs-Appellees Texas Organizing Project Education Fund and MOVE San Antonio
25

/s/ Rolando L. Rios Rolando L. Rios LAW OFFICE OF ROLANDO L. RIOS 115 E. Travis Street, Suite 1645 San Antonio, TX 78205 Telephone: (210) 222-2102 Facsimile: (210) 222-2898 Counsel for Plaintiff-Appellee Texas Association of Hispanic County Judges and County Commissioners /s/ Jose Garza Jose Garza Michael Moran Martin Golando GARZA GOLANDO MORAN 115 E. Travis Street, Suite 1235 San Antonio, TX 78205 Telephone: (210) 892-8543 Counsel for Plaintiffs-Appellees El Paso County and Richard Wiles
26

CERTIFICATE OF COMPLIANCE I certify that this document complies with the type-volume limitation of Rule 27(d)(2) because it contains no more than 5,200 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Century Schoolbook font.
/s/ Nina Perales Nina Perales
CERTIFICATE OF SERVICE I certify that, on September 12, 2017, a true and correct copy of this brief has been served via the Court’s CM/ECF system on all counsel of record.
/s/ Nina Perales Nina Perales
27

EXHIBIT A

Subject ID: Event #:

DEPARTMENT OF HOMELAND SECURITY
IMMIGRATION DETAINER - NOTICE OF ACTION
File No: Date:

TO: (Name and Title of Institution - OR Any Subsequent Law Enforcement Agency)

FROM: (Department of Homeland Security Office Address)

Name of Alien:

Date of Birth:

Citizenship:

Sex:

1. DHS HAS DETERMINED THAT PROBABLE CAUSE EXISTS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON (complete box 1 or 2).

A final order of removal against the alien; The pendency of ongoing removal proceedings against the alien; Biometric confirmation of the alien’s identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and/or
Statements made by the alien to an immigration officer and/or other reliable evidence that affirmatively indicate the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.

2. DHS TRANSFERRED THE ALIEN TO YOUR CUSTODY FOR A PROCEEDING OR INVESTIGATION (complete box 1 or 2).

Upon completion of the proceeding or investigation for which the alien was transferred to your custody, DHS intends to resume custody of the alien to complete processing and/or make an admissibility determination.

IT IS THEREFORE REQUESTED THAT YOU:

• Notify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody. Please notify

DHS by calling

U.S. Immigration and Customs Enforcement (ICE) or

U.S. Customs and Border Protection (CBP) at

. If you cannot reach an official at the number(s) provided, please contact the Law Enforcement Support

Center at: (802) 872-6020.
• Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have

been released from your custody to allow DHS to assume custody. The alien must be served with a copy of this form for the detainer to take effect. This detainer arises from DHS authorities and should not impact decisions about the alien’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters
• Relay this detainer to any other law enforcement agency to which you transfer custody of the alien. • Notify this office in the event of the alien's death, hospitalization or transfer to another institution.

If checked: please cancel the detainer related to this alien previously submitted to you on

(date).

(Name and title of Immigration Officer)

(Signature of Immigration Officer) (Sign in ink)

Notice: If the alien may be the victim of a crime or you want the alien to remain in the United States for a law enforcement purpose, notify the ICE Law Enforcement Support Center at (802) 872-6020. You may also call this number if you have any other questions or concerns about this matter.

TO BE COMPLETED BY THE LAW ENFORCEMENT AGENCY CURRENTLY HOLDING THE ALIEN WHO IS THE SUBJECT OF THIS NOTICE:

Please provide the information below, sign, and return to DHS by mailing, emailing or faxing a copy to

.

Local Booking/Inmate #:

Estimated release date/time:

Date of latest criminal charge/conviction:

Last offense charged/conviction:

This form was served upon the alien on

, in the following manner:

in person

by inmate mail delivery

other (please specify):

(Name and title of Officer) DHS Form I-247A (3/17)

(Signature of Officer) (Sign in ink) Page 1 of 3

NOTICE TO THE DETAINEE
The Department of Homeland Security (DHS) has placed an immigration detainer on you. An immigration detainer is a notice to a law enforcement agency that DHS intends to assume custody of you (after you otherwise would be released from custody) because there is probable cause that you are subject to removal from the United States under federal immigration law. DHS has requested that the law enforcement agency that is currently detaining you maintain custody of you for a period not to exceed 48 hours beyond the time when you would have been released based on your criminal charges or convictions. If DHS does not take you into custody during this additional 48 hour period, you should contact your custodian (the agency that is holding you now) to inquire about your release. If you believe you are a United States citizen or the victim of a crime, please advise DHS by calling the ICE Law Enforcement Support Center toll free at (855) 448-6903.
NOTIFICACIÓN A LA PERSONA DETENIDA
El Departamento de Seguridad Nacional (DHS) le ha puesto una retención de inmigración. Una retención de inmigración es un aviso a una agencia de la ley que DHS tiene la intención de asumir la custodia de usted (después de lo contrario, usted sería puesto en libertad de la custodia) porque hay causa probable que usted está sujeto a que lo expulsen de los Estados Unidos bajo la ley de inmigración federal. DHS ha solicitado que la agencia de la ley que le tiene detenido actualmente mantenga custodia de usted por un periodo de tiempo que no exceda de 48 horas más del tiempo original que habría sido puesto en libertad en base a los cargos judiciales o a sus antecedentes penales. Si DHS no le pone en custodia durante este periodo adicional de 48 horas, usted debe de contactarse con su custodio (la agencia que le tiene detenido en este momento) para preguntar acerca de su liberación. Si usted cree que es un ciudadano de los Estados Unidos o la víctima de un crimen, por favor avise al DHS llamando gratuitamente al Centro de Apoyo a la Aplicación de la Ley ICE al (855) 448-6903.
AVIS AU DETENU OU À LA DÉTENUE Le Département de la Sécurité Intérieure (DHS) a placé un dépositaire d'immigration sur vous. Un dépositaire d'immigration est un avis à une agence de force de l'ordre que le DHS a l'intention de vous prendre en garde à vue (après celà vous pourrez par ailleurs être remis en liberté) parce qu'il y a une cause probable que vous soyez sujet à expulsion des États-Unis en vertu de la loi fédérale sur l'immigration. Le DHS a demandé que l'agence de force de l'ordre qui vous détient actuellement puisse vous maintenir en garde pendant une période ne devant pas dépasser 48 heures au-delà du temps après lequel vous auriez été libéré en se basant sur vos accusations criminelles ou condamnations. Si le DHS ne vous prenne pas en garde à vue au cours de cette période supplémentaire de 48 heures, vous devez contacter votre gardien (ne) (l'agence qui vous détient maintenant) pour vous renseigner sur votre libération. Si vous croyez que vous êtes un citoyen ou une citoyenne des États-Unis ou une victime d'un crime, s'il vous plaît aviser le DHS en appelant gratuitement le centre d'assistance de force de l'ordre de l'ICE au (855) 448-6903
NOTIFICAÇÃO AO DETENTO
O Departamento de Segurança Nacional (DHS) expediu um mandado de detenção migratória contra você. Um mandado de detenção migratória é uma notificação feita à uma agência de segurança pública que o DHS tem a intenção de assumir a sua custódia (após a qual você, caso contrário, seria liberado da custódia) porque existe causa provável que você está sujeito a ser removido dos Estados Unidos de acordo com a lei federal de imigração. ODHS solicitou à agência de segurança pública onde você está atualmente detido para manter a sua guarda por um período de no máximo 48 horas além do tempo que você teria sido liberado com base nas suas acusações ou condenações criminais. Se o DHS não leva-lo sob custódia durante este período adicional de 48 horas, você deve entrar em contato com quem tiver a sua custódia (a agência onde você está atualmente detido) para perguntar a respeito da sua liberação. Se você acredita ser um cidadão dos Estados Unidos ou a vítima de um crime, por favor informe ao DHS através de uma ligação gratuita ao Centro de Suporte de Segurança Pública do Serviço de Imigração e Alfândega (ICE) pelo telefone (855) 448-6903.

DHS Form I-247A (3/17)

Page 2 of 3

THÔNG BÁO CHO NGѬӠI Bӎ GIAM
Bӝ Nӝi An (DHS) ÿã ra lӋnh giam giӳ di trú ÿӕi vӟi quý vӏ. Giam giӳ di trú là mӝt thông báo cho cѫ quan công lӵc rҵng Bӝ Nӝi An sӁ ÿҧm ÿѭѫng viӋc lѭu giӳ quý vӏ (sau khi quý vӏ ÿѭӧc thҧ ra) bӣi có lý do khҧ tín quý vӏ là ÿӕi tѭӧng bӏ trөc xuҩt khӓi Hoa KǤ theo luұt di trú liên bang. Sau khi quý vӏ ÿã thi hành ÿҫy ÿӫ thӡi gian cӫa bҧn án dӵa trên các tӝi phҥm hay các kӃt án, thay vì ÿѭӧc thҧ tӵ do, Bӝ Nӝi An ÿã yêu cҫu cѫ quan công lӵc giӳ quý vӏ lҥi thêm không quá 48 tiӃng ÿӗng hӗ nӳa. NӃu Bӝ Nӝi An không ÿӃn bҳt quý vӏ sau 48 tiӃng ÿӗng hӗ phө trӝi ÿó, quý vӏ cҫn liên lҥc vӟi cѫ quan hiӋn ÿang giam giӳ quý vӏ dӇ tham khҧo vӅ viӋc trҧ tӵ do cho quý vӏ. NӃu quý vӏ là công dân Hoa KǤ hay tin rҵng mình là nҥn nhân cӫa mӝt tӝi ác, xin vui lòng báo cho Bӝ Nӝi An bҵng cách gӑi sӕ ÿiӋn thoҥi miӉn phí 1(855) 448-6903 cho Trung Tâm Hӛ Trӧ Cѫ Quan Công Lӵc Di Trú.
塓㊀䔁侭忂䞍㚠
⚳⛇⬱ℐ悐(Department of Homeland Security炻䯉䧙DHS)⶚䴻⮵Ἀ䘤↢䦣㮹㊀䔁Ẍˤġ 䦣㮹㊀䔁Ẍ䁢ᶨ䴎Ḱ➟㱽㨇㥳䘬忂䞍㚠炻斉㖶DHSシ㫚䌚⍾⮵Ἀ䘬估㉤㪲(劍朆㚱㬌估㉤ 㪲炻Ἀ⮯㚫塓慳㓦)烊⚈䁢㟡㒂倗恎䦣㮹㱽ἳ炻᷎➢㕤⎰䎮䘬⍇䓙炻Ἀ⮯㚫塓怆妋暊伶ġ ⚳⚳⠫ˤDHSṎ⶚天㯪䎦㬋㊀䔁Ἀ䘬➟㱽㨇㥳炻⛐Ἀ⚈⍿⇘↹ḳ㩊㍏ㆾ⭂伒⼴炻侴⛐㛔 ㅱ塓慳㓦䘬䦳⸷ᶳ炻两临⮵Ἀἄ↢ᶵ崭忶⚃⋩ℓ⮷㗪䘬䚋䭉ˤ劍Ἀ⛐忁旬≈䘬⚃⋩ℓ⮷ 㗪ℏ炻ṵ㛒⍲䦣Ṍ军DHS䘬䚋䭉ᶳ炻Ἀㅱ䔞倗䴉Ἀ䘬䚋䭉Ṣ(⌛䎦㬋䚋䭉Ἀ䘬㨇㥳)㞍娊ġ 㚱斄Ἀ慳㓦䘬ḳ⭄ˤ劍Ἀ娵䁢Ἀ㗗伶⚳℔㮹ㆾ䁢伒㟰⍿⭛侭炻婳农暣ICE➟㱽悐㓗㎜ᷕ⽫ (Law Enforcement Support Center)䞍㚫DHS炻⃵屣暣娙嘇䡤烉(855)448-6903ˤ

DHS Form I-247A (3/17)

Page 3 of 3

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Docket No. 17-50762

CITY OF EL CENIZO, TEXAS, et al., Plaintiffs-Appellees,
v.
STATE OF TEXAS, et al., Defendants-Appellants.

On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-404, 5:17-cv-459, 5:17-cv-489
PLAINTIFFS’ RESPONSE TO EMERGENCY MOTION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL

Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net (El Cenizo Plaintiffs)
(Additional Counsel for Plaintiffs on Subsequent Pages)

Ronald C. Lewis, SBN: 12305450 City Attorney Judith L. Ramsey, SBN: 16519550 Chief, General Litigation Section Patricia L. Casey, SBN: 03959075 Senior Assistant City Attorney Collyn A. Peddie, SBN: 15707300 Senior Assistant City Attorney Connica Lemond, SBN: 24031937 Senior Assistant City Attorney Fernando de Leon, SBN: 24025325 Senior Assistant City Attorney CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, TX 77002 Phone: (832) 393-6491 Ronald.lewis@houstontx.gov

Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org (El Cenizo Plaintiffs)
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 asegura@aclutx.org esaldivar@aclutx.org (El Cenizo Plaintiffs)
Sherine E. Thomas Assistant County Attorney SBN: 00794734 Sharon K. Talley Assistant County Attorney SBN: 19627575 Anthony J. Nelson Assistant County Attorney SBN: 14885800 Laurie R. Eiserloh Assistant County Attorney SBN: 06506270 Tim Labadie Assistant County Attorney SBN: 11784853 OFFICE OF THE CITY ATTORNEY TRAVIS COUNTY, TEXAS

Judith.ramsey@houstontx.gov Pat.casey@houstontx.gov Collyn.peddie@houstontx.gov Connica.lemond@houstontx.gov Fernando.deleon2@houstontx.gov (City of Houston)
R. Paul Yetter SBN: 22154200 Grant Martinez SBN: 24104118 Lonny Hoffman SBN: 00784282 YETTER COLEMAN LLP 909 Fannin Street, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 pyetter@yettercoleman.com gmartinez@yettercoleman.com lhoffman@yettercoleman.com (City of Houston)
Anne L. Morgan City Attorney Meghan L. Riley Chief, Litigation Michael Siegel Assistant City Attorney SBN: 24093148 Christopher Coppola Assistant City Attorney SBN: 24036401 CITY OF AUSTIN – LAW DEPARTMENT P. O. Box 1546 Austin, Texas 78767-1546 Phone: (512) 974-2888 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov (City of Austin)

P. O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9415 sherine.thomas@traviscountytx.gov sharon.talley@traviscountytx.gov tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov tim.labadie@traviscountytx.gov (Travis County Plaintiffs-Intervenors)
Cody Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 cwofsy@aclu.org samdur@aclu.org (El Cenizo Plaintiffs)

Larry E. Casto Dallas City Attorney Charles S. Estee Assistant City Attorney SBN: 06673600 Stacy Jordan Rodriguez SBN: 11016750 Barbara E. Rosenberg SBN: 17267700 DALLAS CITY ATTORNEY’S OFFICE 1500 Marilla Street, Room 7B N Dallas, Texas 75201 Phone: 214-670-3519 charles.estee@dallascityhall.com stacy.rodriguez@dallascityhall.com barbara.rosenberg@dallascityhall.com (City of Dallas)
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com (El Cenizo Plaintiffs)

CERTIFICATE OF INTERESTED PARTIES
No. 17-50762
CITY OF EL CENIZO, TEXAS, et al., Plaintiffs-Appellees,
v.
STATE OF TEXAS, et al., Defendants-Appellants.

The undersigned counsel of record certifies that pursuant to the fourth sentence of Rule 28.2.1, the following listed persons or entities have an interest in the outcome of this case. These representations are made so that the judges of this Court may evaluate possible disqualification or recusal.

Parties/ Entities Plaintiff-Appellant Texas Chapter of the League of United Latin American Citizens

Counsel Lee Gelernt Omar Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS
i

Texas Organizing Project Education Fund

P.O. Box 303187 Austin, TX 78703 Efren Carlos Olivares SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Avenue Alamo, TX 78516

Texas Association of Chicanos in Higher Education
La Union del Pueblo Entero, Inc. (which has no parent corporation or stockholders)
Workers Defense Project
MOVE San Antonio Texas Association of Hispanic County Judges and County Commissioners

Mary B. McCord Joshua A. Geltzer Robert Friedman Daniel Rice INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001
Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATION FUND 110 Broadway Street, Suite 300 San Antonio, TX 78205 Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz (Address Above) Nina Perales Celina Y. Moreno John Paul Salmon Thomas A. Saenz (Address Above) Efren Carlos Olivares (Address Above) Rolando Leo Rios LAW OFFICE OF ROLANDO L. RIOS 115 E. Travis Street, Suite 1645

ii

San Antonio, TX 78205 iii

TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................2
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. ................2 A. The District Court Correctly Concluded that the “Materially Limit” Provisions Are Unconstitutionally Vague..................................................3 B. SB 4’s Enforcement Assistance Provision Is Preempted...........................8 C. SB 4’s Detainer Mandate Violates the Fourth Amendment.....................12
II. TEXAS WILL NOT BE IRREPARABLY HARMED ABSENT A STAY. ............................................................................................................18
CONCLUSION ........................................................................................................20
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INTRODUCTION SB 4 is a uniquely punitive law. No State has ever threatened its own law enforcement personnel with imprisonment, termination, and crippling fines for failing to adequately lend themselves to a federal police force. The statute fails to give sufficient notice of which actions will lead to these devastating penalties; its systematic enforcement regime conflicts with Congress’s voluntary one; and it forces police to detain without regard for probable cause. No emergency justifies Texas’s request for the extraordinary remedy of a stay pending appeal, particularly given that argument on the merits is now scheduled for early November. The local policies SB 4 targets have been in place for at least eight months, and some as long as two decades. See, e.g., Houston PD Policy 500-05 (1992); Hernandez Decl., Dkt. No. 79-1, ¶ 8-9 (Travis County policy announced January 2017); Reyes Decl., Dkt. No. 24-8, ¶ 19 (El Cenizo ordinance adopted 1999).1 The Legislature, moreover, has considered and rejected similar bills over multiple years. By contrast, if a stay were granted, sheriffs and police chiefs would suddenly see their careers, savings, and physical liberty jeopardized, even for a single violation of SB 4’s vague dictates. As the district court found, local officials on the ground cannot understand what SB 4 requires. As telling, the State itself does
1 For convenience, plaintiffs have attached the exhibits cited in this brief.
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not appear to know the precise contours of the law and has advanced divergent positions as this litigation has proceeded. SB 4 would force local officials to choose between detaining their residents even when they doubt probable cause or risk criminal prosecution and removal from office. Especially now, it is critical that residents needing help (including mixed immigration-status families) be assured that they can approach local police. See Acevedo Supp. Decl., Exh. 1, Sept. 12, 2017 (Houston Police Chief) (explaining that many people did not seek assistance because of SB 4).
The district court’s careful opinion upheld significant portions of SB 4. As for the others, the injunction simply preserved the status quo that has existed for years. SB 4 presents weighty constitutional issues. An emergency stay motion is no place to resolve them. The status quo should be preserved pending appeal. See Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016) (denying stay in order to “maint[ain] the status quo” and noting that “[a] stay is an intrusion into the ordinary processes of . . . judicial review”).
ARGUMENT I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
SB 4 bars a wide range of actions and policies that “prohibit[] or materially limit[]” immigration enforcement. Tex. Gov’t Code § 752.053(a), (b). Local officials are subject to fines of up to $25,500 per day, and to removal from office
2

for a single violation. Id. §§ 752.056(a), (b) (fines); 752.0565(a) (removal with no scienter requirement). SB 4 also mandates that local officers blindly honor every detainer request, unless the person can prove citizenship or immigration status. Tex. Code Crim. P. art. 2.251(a), (b) (2017). A single violation is punishable by a year’s imprisonment and automatic removal from office. Tex. Pen. Code §§ 39.07, 12.21; Tex. Loc. Gov’t Code § 87.031(c). The district court correctly found that certain provisions of SB 4 are unconstitutionally vague and preempted by federal law, and that the detainer mandate violates the Fourth Amendment.2
A. The District Court Correctly Concluded that the “Materially Limit” Provisions Are Unconstitutionally Vague. A law is unconstitutionally vague when it “fails to draw reasonably clear
lines between lawful and unlawful conduct.” Kramer v. Price, 712 F.2d 174, 176 (5th Cir. 1983). A vague law either “(1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” Women’s Med. Ctr. v. Bell, 248 F.3d 411, 421 (5th Cir. 2001); Op. 45-47. Both are true of SB 4’s “materially limit” prohibition.
SB 4 provides that local officials may not take any action that “materially limits” immigration inquiries, information sharing, undefined “enforcement
2 Plaintiffs support the arguments advanced by the other set of plaintiffs in their brief. To avoid repetition, those arguments are not repeated here.
3

assistance,” jail access, and, more broadly, anything else that constitutes “the enforcement of immigration laws.” Gov’t Code § 752.053(a), (b). Yet a nearly unlimited set of actions could be said to “materially limit” immigration “enforcement” or “assistance.”
Any time a sheriff or police chief prioritizes a routine police matter over immigration enforcement, she has “limit[ed] the enforcement of immigration laws.” Whether any given limitation amounts to a “material” limitation is unclear, and an incorrect guess subjects officials to enormous penalties. For instance, a police chief may want to instruct officers not to interrogate motorists about their immigration status unless there is reasonable suspicion of a status violation, or when other matters are more pressing. See id. § 752.053(b)(1). Would that be merely a limit, or a material limit? Deputies might want to spend time patrolling border regions or monitoring day laborers, but the sheriff instructs them to focus instead on higher-priority areas. That policy would certainly limit immigration enforcement, but materially? See id. § 752.053(a)(1). The same question would arise any time ICE asks a local agency to lend officers to help with a raid, id. § 752.053(b)(3), or escort ICE agents around a jail, id. § 752.053(b)(4), or investigate an immigration-related tip. In fact, the uncertainty attaches to any choice about how to allocate law enforcement resources, many of which will inevitably limit the enforcement of immigration laws. SB 4 provides no guidance
4

about which of these choices will subject chiefs and sheriffs to crippling fines and removal from office.
These are all questions that plaintiffs would face every single day under SB 4. See, e.g., Hernandez Decl. ¶¶ 35-36, 44-46; Schmerber Decl., Dkt. No. 24-5, ¶ 13; M. Hernandez Decl., Dkt. No. 24-6, ¶¶ 10-13; Reyes Decl. ¶¶ 23-24. Texas is thus wrong that plaintiffs are somehow only challenging SB 4’s vagueness “as applied to the conduct of others.” Mot. 18 (quotation marks omitted). See Op. 5253 (rejecting similar argument).
Moreover, SB 4’s long list of prohibitions compounds the vagueness of “materially limit.” Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 832 (5th Cir. 1979) (holding that “hamper or impede” was vague in the context of multiple additive terms). SB 4 forbids material limits (which must be something short of “prohibit[ions]”) imposed by explicit policies, “informal” policies, id. § 752.051(6), “patterns,” “practices,” id. § 752.053(a)(2), and individual “action[s],” Mot. 18; see Gov’t Code § 752.053(b). Even if each restriction were “tolerable in isolation,” together “their sum makes a task for us which at best could be only guesswork.” Johnson v. United States, 135 S. Ct. 2551, 2560 (2015).
Texas responds that a material limit means only “a policy or action [] addressing th[e] topic of immigration-law enforcement, as opposed to routine police matters.” Mot. 18. But the plaintiffs’ decisions covered by SB 4 explicitly
5

address both. Op. 53, 55-56. And as even Texas says, the “materially limit” provisions outlaw policies and actions that merely have a negative “effect” on immigration-law enforcement. Mot. 18; Tr. 130 (Counsel for the State) (whether a decision “materially limit[s]” enforcement is a matter of “causation”). Nor can the Court “narrow[] a vague state regulation. We take the state and local regulations as we have been given them.” Svc. Employees Int’l Union Local 5 v. Houston, 595 F.3d 588, 597 (5th Cir. 2010).
Texas also defends these provisions by asserting that “material” and “limit” are used in other legal contexts. Mot. 19. But that is usually true of vague provisions. See, e.g., Johnson, 135 S. Ct. at 2561 (rejecting vagueness defense based on fact that a challenged phrase was used in “dozens of federal and state criminal laws”). Context is crucial, and in the context of SB 4, “people in appell[ees’] position cannot know wh[at] to expect.” Krishna, 601 F.2d at 832.
Even Texas seems unsure of SB 4’s scope. See Tr. 129 (agreeing that “[t]here are a million gray area hypotheticals”). Its briefs have taken contradictory positions, many of them at odds with SB 4’s text. For instance, Texas has claimed that SB 4 “merely prohibits local policies” that “categorically block[] cooperation with federal authorities.” Mot. for Stay, Dkt. No. 191, at 2 (emphases altered); Mot. 4, 10 (SB 4 only prohibits “policies” that fully “ban” assistance); Opp. to Mot. for Prelim. Inj., Dkt. No. 91, at 1, 4, 9 (same). But according to SB 4’s text
6

and other statements made by Texas, the statute extends beyond non-enforcement “policies” to individual “actions.” Mot. 18; Dkt. No. 91, at 5, 33, 38; see Gov’t Code § 752.053(b). And it plainly applies not just to “categorical” prohibitions, but also to “material limits,” “patterns,” and “practices.” Moreover, Texas’s examples of SB 4’s “core” applications simply restate the statute’s text. See Mot. 18 (defining “material limits” as “policies limiting” enforcement or “limiting federal-local cooperation”); cf. Women’s Med. Ctr., 248 F.3d at 422 (finding vagueness where law’s drafter could not explain its content).
Finally, Texas argues that SB 4 can only be enjoined if it “is impermissibly vague in all of its applications.” Mot. 17 (quotation marks omitted). But the Supreme Court in Johnson disavowed the “supposed requirement of vagueness in all applications,” which it explained was “not a requirement at all, but a tautology.” 135 S. Ct. at 2561 (facially invalidating law despite acknowledging that some conduct “clearly falls within the provision’s grasp”); see SEIU Local 5 v. City of Houston, 595 F.3d 588, 605 (5th Cir. 2010) (striking down vague ordinance despite clear applications). Texas tries to distinguish Johnson, noting that this case involves a pre-enforcement challenge. Mot. 17-18. That is a distinction with no relevance here. Texas law enforcement officers are properly asking for protection now from a law they cannot understand and will be punished for violating, precisely what the vagueness doctrine is meant to protect against. See, e.g.,
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Women’s Med. Ctr., 248 F.3d at 422 (affirming pre-enforcement injunction on
vagueness grounds).
B. SB 4’s Enforcement Assistance Provision Is Preempted.
Under § 752.053(b)(3), officials may not prohibit or materially limit police
officers from “assisting or cooperating with a federal immigration officer as
reasonable or necessary, including providing enforcement assistance.” Plaintiffs
argued below that SB 4 goes far beyond mandating cooperation and, among other
things, requires police routinely to perform the functions of federal immigration
officers3 without the federal supervision, certification, and training required by 8
U.S.C. § 1357(g).4 To that extent, Plaintiffs argued that SB 4 conflicts with §
1357’s immigration-enforcement scheme and is preempted.
The district court agreed and held that “[b]ypassing the training,
certification, and supervision and establishing a systematic local enforcement
3 Texas is incorrect to suggest that, under SB 4, local police will not perform “immigration officer functions.” 8 U.S.C. § 1357(g); Mot. 12-13. Those functions include the “detention of aliens in the United States,” 8 U.S.C. § 1357(g)(1), which SB 4 affirmatively requires. See Code Crim. P. art. 2.251. They also include the “power without a warrant to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States,” 8 U.S.C. § 1357(a)(1), which corresponds directly to SB 4’s § 752.053(b)(1). 4 Federal law imposes a number of requirements before local police may routinely assist in federal immigration enforcement. Federal officials must “direct[] and supervis[e],” and determine that each local officer is “qualified to perform a function of an immigration officer.” 8 U.S.C. § 1357(g)(1), (3). The local officers must “have knowledge of . . . Federal law relating to the function,” and receive “adequate training regarding the enforcement of relevant Federal immigration laws.” Id. § 1357(g)(2). And a written agreement must set forth, for each local officer, “the specific powers and duties” to be performed, “the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual.” Id. § 1357(g)(5).
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procedure would likely go against the program put in place by Congress [in § 1357(g)].” Op. 33. It thus enjoined the “enforcement provision in Tex. Gov’t Code § 752.053(b)(3).” Op. 93. The court made clear, however, that it was not enjoining cooperation and communication with federal immigration authorities. Op. 93 n.102.
Rather than directly address the district court’s detailed preemption analysis, Texas attempts to distract from it by advancing arguments and purported evidence grounded in false premises. Texas argues, for instance, that the district court “misapprehended” § 752.053(b)(3) because the court improperly presumed that SB 4 requires localities to engage in unilateral immigration enforcement. Mot. 10. It did not. Instead, the court expressed concern about the State coercing unfettered immigration enforcement without satisfying § 1357(g)’s requirements of training, certification, and supervision. Op. 24-26. The court properly recognized that, for preemption purposes, it is not sufficient for Texas simply to promise that it will rely on the federal government to voluntarily provide the same supervision and training mandated in § 1357(g) or that, absent a federal request for enforcement assistance, somehow “SB4 does not come into play.” Mot. 10. Instead, when, as here, “a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment
9

by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 623-24 (2011).
Texas also argues that § 752.053(b)(3) “merely prohibits policies barring local officials from ‘assisting or cooperating with a federal immigration officer.’” Mot. 10 (emphasis altered). It does far more than that. Under this provision, if an ICE officer asks a sheriff’s deputy to join an immigration raid, neither the county nor the sheriff can prevent the deputy from joining the raid. Id. (“[A] local entity . . . may not prohibit or materially limit a person who is a commissioned peace officer [from] . . . providing enforcement assistance.”); see Opp. to Mot. for Prelim. Inj., Dkt. No. 91, at 39. The request becomes a mandate to the county and sheriff. The local entity loses its ability to control its own employees regardless of their lack of training or understanding of federal immigration law.
SB 4, and § 752.053(b)(3) in particular, thus fundamentally changes the nature of relations between local and federal governments regarding immigration enforcement. What was once voluntary and cooperative is now coerced by the state. In Arizona v. United States, the Court found § 5(C) of the state’s immigration law facially preempted, even though it attempted to achieve the same goals as federal law, because it involved a conflict in the method of enforcement. 132 S. Ct. 2492, 2505 (2012). The Court recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt
10

policy.” Id. (quoting Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971)). Similarly, in Buckman v. Plaintiffs’ Legal Committee, the Court
recognized that state-law fraud-on-the-FDA claims were preempted because they skewed “a somewhat delicate balance of statutory objectives” that Congress had already struck. 531 U.S. 341, 348-53 (2001). Section 752.053(b)(3) would
therefore still be preempted even if it were only a conflict in technique. Texas also seeks refuge in an over-expansive reading of § 1357(g)(10) that
negates subsections (1)-(8). Ordinary statutory construction principles, the plain language of § 1357 and SB 4, and their structure and purposes do not permit
Texas’s reading. And the federal government’s own guidance defines “cooperate” in § 1357(g)(10)(B) to exclude the very activities SB4 requires.
State or local laws or actions that . . . categorically demand enforcement in such a way as to deprive the Federal Government—and state and local officers—of the flexibility and discretion that animates the Federal Government’s ability to globally supervise immigration enforcement, do not constitute the requisite “cooperation” within the meaning of 8 U.S.C. § 1357(g)(10)(B).
DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 8 (July 16, 2015) (emphasis added).5
In a last-ditch effort, Texas cites to the federal government’s statement of interest to argue that, because plaintiffs have voluntarily cooperated in honoring
5 Available at https://www.dhs.gov/publication/guidance-state-and-local-governmentsassistance-immigration-enforcement-and-related. See Dkt. No. 150, Exh. D.
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ICE detainers in the past, SB 4’s mandates do not present a preemptive conflict. Mot. 13-14. First, that argument ignores Arizona and Buckman’s “frustration of purpose” jurisprudence. Second, the government’s statement of interest and amicus brief, prepared solely for litigation, depart markedly from its long-standing interpretation of § 1357(g)(10), as expressed in its current Guidance. Where, as here, the federal government has so dramatically changed its position with regard to the permissibility of state laws, the Supreme Court has held that its views on the preemptive effect of federal statutes are entitled to no deference.6 In the end, it is the statute enacted by Congress that controls.
C. SB 4’s Detainer Mandate Violates the Fourth Amendment. The district court correctly held that SB 4’s detainer mandate violates the
Fourth Amendment because it requires officers to honor detainers without probable cause of a crime. Op. 65-81; accord Mercado v. Dallas Cty., 229 F. Supp. 3d 501, 510-13 (N.D. Tex. 2016) (Fitzwater, J.). The State’s primary response is that the Fourth Amendment requires local officers to have probable cause only of removability. Mot. 4-8. The other set of plaintiffs address that contention in their
6 See Wyeth v. Levine, 555 U.S. 555, 581 (2008). Even if the United States had consistently adhered to its interpretation, however, this Court has also held that “near indifference” is the level of deference due “an interpretation advanced for the first time in a litigation brief,” as the federal government’s interpretation is here. United States v. Mead Corp., 533 U.S. 218, 228 (2001) (cited in Luminant Generation Co., LLC v. EPA, 675 F.3d 917, 927 (5th Cir. 2012)).
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brief. To avoid repetition, this brief explains why the detainer mandate violates the Fourth Amendment even if localities only need probable cause of removability.7
The State concedes that extending a person’s detention based on an immigration detainer constitutes “a new seizure for Fourth Amendment purposes.” Morales v. Chadbourne, 793 F.3d 208, 217 & n.3 (1st Cir. 2015) (collecting cases). Thus, there is no dispute that there must at least be probable cause of removability. Texas notes, however, that ICE detainer forms have check boxes indicating that there is probable cause of removability, and argues that the Fourth Amendment is therefore satisfied. Mot. 5. But the fact that ICE claims probable cause exists does not save SB 4’s detainer mandate. Local officers must also be able to assess for themselves whether probable cause of removability exists.
It is black-letter law that arresting officers—here, the local officers—must undertake a “particularized” probable cause inquiry “with respect to [each] person” they arrest. Ybarra v. Illinois, 444 U.S. 85, 91 (1979); see Hernandez Decl. ¶ 27. But SB 4 does not permit local officers to make that probable cause inquiry. Instead, using the threat of criminal penalties and removal from office, it compels them to honor every detention request where the person cannot affirmatively prove status with documentation. Thus, even where local officers harbor doubts about
7 In its stay motion, Texas does not dispute the district court’s conclusion that plaintiffs have standing to raise a Fourth Amendment claim, and plaintiffs therefore do not address it here. Op. 63-64.
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probable cause of removability, they must detain anyway. That means in every case, the local official is violating the Fourth Amendment because SB 4 prohibits them from undertaking the constitutionally-required “particularized” probable cause inquiry “with respect to [each] person” they arrest. Ybarra, 444 U.S. at 91.
Texas offers three basic responses. First, it notes that officials may decline a request where the person can affirmatively prove U.S. citizenship or lawful status with documentation. Code Crim. P. art. 2.251(b). But that cannot save the statute. Under the Fourth Amendment, the burden rests with the arresting officer to establish probable cause; the burden cannot be switched to the detainee to come forward with documentation on the spot to prove the absence of probable cause. Many situations will present reasons to doubt probable cause—for instance, when the arresting officer personally knows the detainee and their status, or the detainee or ICE reveal information undermining probable cause, or when ICE fails to check the correct boxes on the detainer form. See Groh v. Ramirez, 540 U.S. 551, 563 (2004) (officers violated Fourth Amendment by executing facially invalid warrant); Bacon Decl., Dkt. No. 24-2, ¶¶ 9-11, 30, 61 (explaining that over two dozen different immigration statuses permit an individual to remain in the country, but that not all come with documentation); Watson Decl., Dkt. No. 57-6, ¶ 26 (estimating that over one million Latinos in Texas lack photo ID). Similarly, in some cases ICE agents may request a detention verbally, without the I-247 detainer
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form’s representation of probable cause—a practice that ICE policy expressly
permits and SB 4’s mandate encompasses. See U.S. Imm. & Customs Enf. Policy
No. 10074.2, ¶ 2.5 (effective Apr. 2, 2017); Tex. Gov’t Code § 772.0073(a)(2)
(defining mandated detainers as any detention request, “including” the I-247 or
related forms); Op. 80. Texas acknowledges that prolonging detention despite
knowledge negating probable cause violates the Fourth Amendment. Mot. 9. And
yet SB 4 mandates that officers detain anyway in such situations.8
Second, Texas argues that although SB 4 precludes local officers from
assessing probable cause of removability, SB 4 is nonetheless consistent with the
Fourth Amendment under the “collective knowledge” doctrine, which allows an
arresting officer to rely on the knowledge of a fellow officer. But as the State’s
own cases reveal, officers may not rely on requests from others when there is
reason to doubt that probable cause actually exists. Yet that is exactly what SB 4
requires. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568
(1971) (“[A]n otherwise illegal arrest cannot be insulated from challenge by the
8 Over the years, a troubling number of detainers have been issued without probable cause. See, e.g., Morales v. Chadbourne, 235 F. Supp. 3d 388, 398 (D.R.I. 2017); Davila v. United States, 2017 WL 1162912, at *13-*14 (W.D. Pa. Mar. 28, 2017); Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014); Makowski v. United States, 27 F. Supp. 3d 901, 918 (N.D. Ill. 2014); see also Galarza v. Szalczyk, 745 F.3d 634, 638 (3d Cir. 2014); Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014). And ICE acknowledges that it has mistakenly placed hundreds of detainers on U.S. citizens in recent years. See, e.g., Eyder Peralta, You Say You’re an American, but What if You Had to Prove It or Be Deported?, NPR, Dec. 22, 2016 (documenting “693 U.S. citizens [who] were held in local jails on federal detainers”), http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-anamerican-but-what-if-you-had-to-prove-it-or-be-deported.
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decision of the instigating officer to rely on fellow officers to make the arrest.”); Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (fellow officer rule does not allow arresting officer to “disregard facts tending to dissipate probable cause”); United States v. Webster, 750 F.2d 307, 323-24 (5th Cir. 1984) (unreasonable to rely on request to carry out arrest because insufficient information was communicated). As the Supreme Court has explained, an arrest statute that “afford[ed] the police no discretion” would “fl[y] in the face of common sense that all police officers must use some discretion in deciding when” to effectuate an arrest. City of Chicago v. Morales, 527 U.S. 41, 62 n.32 (1991) (second emphasis added); see Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005). In short, arresting officers are constitutionally required to assure themselves that probable cause exists even when someone else asks for the arrest.
Third, Texas argues that the district court erred in enjoining the detainer mandate on a facial pre-enforcement challenge. But, as noted above, SB 4 results in a violation of the Fourth Amendment in every case, because for every arrest it prohibits local officers from fulfilling their own constitutionally-required duty to assess probable cause. Ybarra, 444 U.S. at 91 (police must undertake a “particularized” probable cause inquiry “with respect to [each] person”); cf. Sibron v. New York, 392 U.S. 40, 59 (1968) (the “procedural safeguards written into a statute” must be “adequate” to justify any searches under the statute). That
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probable cause may exist in many (or even most) cases does not excuse SB 4’s elimination of a procedural safeguard that the Fourth Amendment requires for every seizure. See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452-53, 2456 (2015) (noting that “the vast majority” of searches under the challenged statute would be lawful, and that pre-compliance review would “rare[ly]” be invoked, but nonetheless facially invalidating the statute in a pre-enforcement challenge because it authorized warrantless searches without an opportunity for pre-compliance review—a procedural safeguard the Fourth Amendment required to be available in every case).
Moreover, Texas’s proposed “as applied” alternative is wholly unworkable. According to the State, local officials—commanded by SB 4 to undertake unconstitutional arrests on pain of losing their jobs, their property, and their liberty—should simply bring an “as-applied challenge to a specific detention.” Mot. 9. Yet it is hard to believe the State really envisions sheriffs and jail supervisors rushing into court to file emergency TRO motions each time they doubt probable cause. Nor is there any good-faith exception for officials who knowingly decline a detainer based on the mistaken belief that the person has proved lawful status. Penal Code § 39.07(b); Bacon Decl. ¶¶ 9-11, 30, 61. A sheriff who made that mistake, even once, would face a year in jail and immediate
17

forfeiture of her office. See id.; Gov’t Code § 87.031(c); id. § 752.0565(b). Facial relief is thus not only legally proper but necessary as a practical matter.
II. TEXAS WILL NOT BE IRREPARABLY HARMED ABSENT A STAY.
Texas faces no irreparable harm during the pendency of this highly expedited appeal. Local policies on immigration enforcement have been on the books in Texas for decades; the Legislature has considered this question slowly over several years; and SB 4’s own effective date was set for four months after enactment. See Dillard v. Security Pacific Corp., 85 F.3d 621 (5th Cir. 1996) (“[L]ong delay implie[s] lack of irreparable harm.”). The State faces no emergency during the several weeks between now and argument on the merits.
Texas has come forward with no evidence that the injunction will harm public safety. See Op. 92 (finding “overwhelming evidence” that SB 4 will “make many communities and neighborhoods less safe”); U.S. v. Dial, 542 F.3d 1059 (5th Cir. 2008) (fact-finding reviewed for clear error). As the United States points out, Texas localities already participate in federal enforcement efforts “[w]ith few exceptions.” U.S. Br. 18, 19; see Op. 91 (“As the State concedes, local jurisdictions have been cooperating with federal immigration authorities for decades.”). And contrary to claims about removing “dangerous criminals,” U.S.
18

Br. 19, according to ICE’s own data, the vast majority of detainers are placed on people with no criminal records or very minor ones.9
Texas is left asserting the bare institutional harm that its law was enjoined. Mot. 2-3, 19-20. 10 But that cannot outweigh the harms plaintiffs face. Op. 88-90
(detailing harms); see id. at 33 n.40, 57-58 (describing actions Texas has already
taken to withhold funds from Travis County used for veterans, children, and
victims of domestic violence). “Injunctions often cause delays, and the
government can resume work if it prevails on the merits.” Texas v. United States,
787 F.3d 733, 767-68 (5th Cir. 2015). Indeed, the Supreme Court has vacated
stays in numerous cases involving injunctions of state laws, demonstrating that a
state’s institutional harm does not automatically outweigh harms to plaintiffs. E.g.,
June Medical Services, LLC v. Gee, 136 S. Ct. 1354 (Mem.) (2016); see Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009).11
Finally, Texas and its declarants are simply wrong that the preliminary
injunction of SB 4 somehow abrogates existing § 1357(g) contracts or enjoins
9 Transactional Records Access Clearinghouse, Syr. Univ., Few ICE Detainers Target Serious Criminals, Sept. 17, 2013, http://trac.syr.edu/immigration/reports/330/. 10 Calling SB 4 a “public-safety law” is not enough either, Mot. 2, because “simply showing some possibility of irreparable injury fails to satisfy” the stay standard. Nken v. Holder, 556 U.S. 418, 434-35 (2009) (emphasis added, quotation marks omitted). 11 Texas cites Maryland v. King, 567 U.S. 1301 (Roberts, as Circuit Justice, in chambers); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (Rehnquist, as Circuit Justice, in chambers). But neither case remotely suggests that a stay should automatically issue whenever a law is enjoined, as this Court has made clear. See Texas, 787 F.3d at 767-68.
19

“routine cooperation with federal immigration officials.” Tex. Exh. 41 ¶¶ 2, 5, Exh. 42 ¶¶ 5-6; Mot. 9.12 The district court’s opinion addressed the mandatory, coercive scheme created by SB 4, and simply enjoined the State from enforcing certain provisions. Op. 22-33, 98 n.102. The opinion does not enjoin localities from continuing to cooperate with the federal government, nor does it address the arrest authority of officers deputized under § 1357(g). No harm to the State justifies an emergency stay.
CONCLUSION The motion for a stay pending appeal should be denied.
12 Plaintiffs object to the McCraw and Waybourn Declarations and attached exhibits. Tex. Exhs. 41, 42. Neither Declaration was part of the trial record, both could have been submitted below, and neither declarant may properly opine on the legal effect of the district court’s ruling. Fed. R. Evid. 602, 701, 702.
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Dated: September 12, 2017
Ronald C. Lewis City Attorney SBN: 12305450 Judith L. Ramsey Chief, General Litigation Section SBN: 16519550 Patricia L. Casey Senior Assistant City Attorney SBN: 03959075
/s/ Collyn A. Peddie Collyn A. Peddie Senior Assistant City Attorney SBN: 15707300 Connica Lemond Senior Assistant City Attorney SBN: 24031937 Fernando de Leon Senior Assistant City Attorney SBN: 24025325 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, TX 77002 Phone: (832) 393-6491 Ronald.lewis@houstontx.gov Judith.ramsey@houstontx.gov Pat.casey@houstontx.gov Collyn.peddie@houstontx.gov Connica.lemond@houstontx.gov Fernando.deleon2@houstontx.gov (City of Houston)
R. Paul Yetter Grant Martinez Lonny Hoffman YETTER COLEMAN LLP

Respectfully Submitted,
/s/ Lee Gelernt Lee Gelernt Omar C. Jadwat Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org samdur@aclu.org (El Cenizo Plaintiffs)
Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net (El Cenizo Plaintiffs)
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 Anne L. Morgan
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909 Fannin Street, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 rsimpson@yettercoleman.com pyetter@yettercoleman.com gmartinez@yettercoleman.com lhoffman@yettercoleman.com (City of Houston)
/s/ Sherine E. Thomas Sherine E. Thomas Assistant County Attorney SBN: 00794734 Sharon K. Talley Assistant County Attorney SBN: 19627575 Anthony J. Nelson Assistant County Attorney SBN: 14885800 Laurie R. Eiserloh Assistant County Attorney SBN: 06506270 Tim Labadie Assistant County Attorney SBN: 11784853 OFFICE OF THE CITY ATTORNEY TRAVIS COUNTY, TEXAS P. O. Box 1748 Austin, Texas 78767 Phone: (512) 854-9415 sherine.thomas@traviscountytx.gov sharon.talley@traviscountytx.gov tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov tim.labadie@traviscountytx.gov (Travis County Plaintiffs-Intervenors)

City Attorney Meghan L. Riley Chief, Litigation
/s/ Michael Siegel Michael Siegel Assistant City Attorney SBN: 24093148 Christopher Coppola Assistant City Attorney SBN: 24036401 CITY OF AUSTIN – LAW DEPARTMENT P. O. Box 1546 Austin, Texas 78767-1546 Phone: (512) 974-2888 Michael.Siegel@austintexas.gov Christopher.Coppola@austintexas.gov (City of Austin)
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com (El Cenizo Plaintiffs)
Cody Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 cwofsy@aclu.org samdur@aclu.org (El Cenizo Plaintiffs)

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Larry E. Casto Dallas City Attorney /s/ Charles S. Estee Charles S. Estee Assistant City Attorney SBN: 06673600 Stacy Jordan Rodriguez SBN: 11016750 Barbara E. Rosenberg SBN: 17267700 DALLAS CITY ATTORNEY’S OFFICE 1500 Marilla Street, Room 7B N Dallas, Texas 75201 Phone: 214-670-3519 charles.estee@dallascityhall.com stacy.rodriguez@dallascityhall.com barbara.rosenberg@dallascityhall.com (City of Dallas)
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CERTIFICATE OF SERVICE I hereby certify that on September 12, 2017, I electronically filed the foregoing with the Clerk for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. A true and correct copy of this motion has been served via the Court’s CM/ECF system on all counsel of record.
/s/ Lee Gelernt Lee Gelernt, Esq. Dated: September 12, 2017
CERTIFICATE OF COMPLIANCE I certify that the required privacy redactions have been made per 5th Circuit Rule 25.2.13 and that the electronic submission has been scanned with the most recent version of commercial virus-scanning software and was reported free of viruses. This brief complies with the type-volume limitation of Fed. R. App. P. 27(d)(2) because this brief contains 4,942 words, excluding parts of the brief exempted by Fed. R. App. P. 27(a)(2)(B). I certify that this motion complied with typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the motion has been prepared in a proportionally-spaced typeface using Microsoft Office 2013 in 14 point Times New Roman.
/s/ Lee Gelernt Lee Gelernt, Esq. Dated: September 12, 2017

 
 No. 17-50762
In the United States Court of Appeals for the Fifth Circuit
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, MAYOR, CITY OF EL CENIZO; TOM SCHMERBER, COUNTY SHERIFF; MARIO A. HERNANDEZ, MAVERICK
COUNTY CONSTABLE PCT. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY; CITY OF EL PASO, Plaintiffs-Appellees,
CITY OF AUSTIN, JUDGE SARAH ECKHARDT, IN HER OFFICIAL CAPACITY AS TRAVIS COUNTY JUDGE; SHERIFF SALLY HERNANDEZ, IN HER OFFICIAL
CAPACITY AS TRAVIS COUNTY SHERIFF; TRAVIS COUNTY; CITY OF DALLAS; TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS; THE CITY OF HOUSTON, Intervenors Plaintiffs-Appellees, v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS, IN HIS OFFICIAL CAPACITY; KEN PAXTON, TEXAS ATTORNEY GENERAL, Defendants-Appellants.
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY, IN HIS OFFICIAL CAPACITY; AND THE TEXAS ORGANIZING PROJECT EDUCATION
FUND, MOVE SAN ANTONIO, Plaintiffs-Appellees, v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR; KEN PAXTON, ATTORNEY GENERAL; STEVE MCCRAW, DIRECTOR OF THE TEXAS DEPARTMENT OF
PUBLIC SAFETY, Defendants-Appellants.
CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, IN HIS OFFICIAL CAPACITY AS SAN ANTONIO CITY COUNCILMEMBER; TEXAS
ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT, Plaintiffs-Appellees,
CITY OF AUSTIN, Intervenor Plaintiff-Appellee v.
STATE OF TEXAS; KEN PAXTON, SUED IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS; GREG ABBOTT, SUED IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF TEXAS, Defendants-Appellants.
On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-404, 5:17-cv-459, 5:17-cv-489
Reply in Support of Emergency Motion to Stay Preliminary Injunction Pending Appeal

Table of Contents Page
Argument................................................................................................................ 1 I. Defendants are likely to succeed on appeal. ...................................................... 1
A. SB4’s ICE-detainer provision does not violate the Fourth Amendment......1 B. SB4’s enforcement-assistance provision is not preempted. ........................ 6 C. SB4’s endorsement prohibition does not violate free speech..................... 11 D. SB4’s “materially limit” prohibitions are not facially vague. .................... 12 II. The other factors favor a stay ......................................................................... 16 Conclusion........................................................................................................... 20 Certificate of service ............................................................................................. 21 Certificate of compliance ..................................................................................... 28
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Argument I. Defendants Are Likely to Succeed on Appeal.
A. SB4’s ICE-Detainer Provision Does Not Violate the Fourth Amendment.
1. Plaintiffs do not dispute the power of federal officials to detain aliens based on probable cause of removability.1 See Mot.5; United States Amicus Br. (U.S.Br.) 13. And plaintiffs completely ignore authorities cited by the State (Mot.5-6) and the United States (U.S.Br.14)—most importantly, Virginia v. Moore, 553 U.S. 164, 172 (2008)—which hold that the Fourth Amendment analysis must be “divorced from questions relating to the detaining officer’s authority.” San Antonio Opp. (S.A.Opp.) 14.
Arizona v. United States, 567 U.S. 387 (2012), came nowhere close to even suggesting that a State cannot honor an ICE-detainer request. Contra S.A.Opp.14-15. Arizona held preempted a state law that allowed detention based on “the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” 567 U.S. at 410 (emphases added). In contrast, when a State relies on an ICE-detainer request, the “predicate for an arrest” is the federal government’s express “request” and “instruc-
1 This Court has not held that the Fourth Amendment applies to all aliens subject to ICE detainers. Cf. S.A.Opp.13 & n.13. Under the “entry fiction,” aliens who entered unlawfully are deemed “as if stopped at the border,” so where “the entry fiction applies . . . there is no violation of the Fourth Amendment.” Castro v. Cabrera, 742 F.3d 595, 599-600 (5th Cir. 2014).
The State also disputes plaintiffs’ standing to raise Fourth Amendment claims. Cf. El Cenizo Opp. (E.C.Opp.) 13 n.7. Plaintiffs cannot vicariously assert hypothetical detainees’ Fourth Amendment rights, which are “personal rights” that “may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); see Exh. 35 at 17-19.
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tion.” Id. at 407, 410. A State honoring an ICE-detainer request is not “[d]etaining individuals solely to verify their immigration status,” id. at 413, so constitutional concerns from such a practice are not present here. Contra S.A.Opp.14. Rather, the State is relying on the federal government’s representation that there is already probable cause of removability.
2. Plaintiffs entirely ignore authorities cited by the State (Mot.7-8) and the United States (U.S.Br.11-12 & n.6) confirming that the state and federal government can both reasonably make warrantless arrests for civil offenses like immigration-law violations, not just crimes. Cf. S.A.Opp.16; see also 3 Wayne LaFave et al., Search and Seizure § 5.1(b) (5th ed. 2012) (listing examples, including arrests for intoxication, for mental-health evaluations, and to return runaway juveniles).2
The Eighth Circuit held this argument—that state and local officials cannot detain aliens at the express direction of federal immigration officials—“meritless.” United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014). Likewise, as the Fourth Circuit has explained, “a state police officer” does not violate the Fourth Amendment when detaining unlawfully-present aliens “at ICE’s express direction.” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 466-67 (4th Cir. 2013). Santos held the arrest there unlawful because “ICE’s request that Santos be detained on ICE’s behalf came fully forty-five minutes after Santos had already been arrested,” so “the deputies’ initial seizure of Santos was not directed or au-
2 Insofar as Mercado v. Dallas County, 229 F. Supp. 3d 501 (N.D. Tex. 2017), and Santoyo v. United States, 2017 WL 2896021 (W.D. Tex. June 5, 2017), could be read to foreclose honoring ICE detainers without criminal probable cause, those decisions are wrongly based on the same analytical errors regarding the requisite probable cause. Cf. S.A.Opp.16.
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thorized by ICE.” Id. at 466; cf. S.A.Opp.15, 17 n.4. By contrast, SB4 requires detention only after local officers receive an ICE-detainer request.
Immigration-enforcement arrests based on federal officials’ removability determinations do not have to be supported by judicial warrants. U.S.Br.12; see, e.g., Roy v. Cty. of L.A., No. 2:12-CV-09012, 2017 WL 2559616, at *6-10 (C.D. Cal. June 12, 2017) (“No court has held to the contrary.”). Plaintiffs do not dispute this point. See S.A.Opp.14-15.
3. Plaintiffs misunderstand the “collective knowledge” doctrine. See S.A.Opp. 16-18; E.C.Opp.15-16. That doctrine applies to all Fourth Amendment claims, contra S.A.Opp.16, and courts have applied it in the immigration context. See, e.g., United States v. Hernandez, 477 F.3d 210, 215 n.13 (5th Cir. 2007); People v. Xirum, 993 N.Y.S.2d 627, 631 (N.Y. Sup. Ct. 2014) (“Similar to the fellow officer rule . . . the [state] had the right to rely upon [a detainer issued by] the very Federal law enforcement agency charged under the law with ‘the identification, apprehension, and removal of illegal aliens from the United States.’” (quoting Arizona, 567 U.S. at 397)).
Plaintiffs do not dispute that federal, state, and local officers are “reliable informants” in relaying probable cause. Mot.8. And they do not address precedent routinely applying the collective-knowledge doctrine to separate sovereigns’ officials in civil cases. U.S.Br.16 n.8.
Plaintiffs also disregard the fact that an ICE-detainer request itself is “some degree of communication between the arresting officer and an officer who has
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knowledge of all the necessary facts.” S.A.Opp.16 (quoting United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007)).
And whereas plaintiffs complain that “an ICE detainer request does not relay facts about removability,” S.A.Opp.17, the collective-knowledge doctrine has never required the arresting officer to know the facts possessed by the other officer requesting the detention. Cooperating officers can validly arrest even when the arresting officers are “‘unaware of the specific facts that established probable cause.’” U.S.Br.15 (quoting United States v. Hensley, 469 U.S. 221, 231 (1985)). The Court has recognized this point repeatedly. E.g., United States v. Willis, 304 F. App’x 256, 258 (5th Cir. 2008) (per curiam) (citing Ibarra, 493 F.3d at 530) (valid arrest conducted on police dispatcher’s order based on request from investigating officers whose “factual knowledge” was “imputed to the arresting officers”). Although not required under the collective-knowledge doctrine, ICE detainers and immigration warrants even have check-boxes providing the factual basis supporting removability. See U.S. ICE, Detainer Policy (last visited Sept. 19, 2017), https://www.ice.gov/detainer-policy (providing sample ICE detainer and warrants).
Plaintiffs have no answer for the fact that federal officials make particularized determinations “assess[ing] probable cause” of removability each time they issue an ICE detainer. E.C.Opp.16. Instead, plaintiffs insist that local officials should be able to assess removability for themselves. S.A.Opp.16-17; E.C.Opp.13-16. This, of course, was expressly held preempted in Arizona, 567 U.S. at 409, and Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 532 (5th Cir. 2013) (en
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banc).3 In any event, this argument ignores that state and local officials have probable cause of removability based on federal ICE-detainer requests under the collective-knowledge doctrine. Isolated scenarios that could hypothetically contradict federal agents’ probable-cause determinations cannot facially invalidate SB4. See E.C.Opp.14, 15 n.8.4
4. As-applied challenges—which would only arise in the hypothetical situation where a federal ICE detainer is issued while the local officer has definitive knowledge that an alien is not removable—are not unworkable. Cf. E.C.Opp.17. SB4’s detainer exception already eliminates much of even that hypothetical uncertainty, as it allows a local official not to detain if the subject produces a driver’s license or other proof of citizenship or lawful status. Tex. Code Crim. Proc. art. 2.251(b).
5. Under plaintiffs’ view, even local officers’ voluntary compliance with federal ICE-detainer requests violates the Fourth Amendment. S.A.Opp.15 (asserting that local detention “based solely on probable cause of removability . . . violate[s] the Fourth Amendment”); E.C.Opp.12 (“SB 4’s detainer mandate violates the Fourth Amendment because it requires officers to honor detainers without probable cause of a crime”). The district court erred in accepting this sweeping reasoning—which
3 If it is problematic for SB4 to allow local officers not to detain when an individual produces a drivers’ license or other proof of citizenship or lawful status, Tex. Code Crim. Proc. art 2.251(b), then only this exception—not the entire ICE-detainer mandate—should be enjoined. See S.A.Opp.17-18.
4 The same is true of hypothetical “verbal” ICE-detainer requests. E.C.Opp.14-15. ICE policy merely provides that nothing precludes local officers “from temporarily detaining an alien while an ICE immigration officer responds to the scene” of a separate state-law detention. ICE Policy No. 10074.2, ¶ 2.5.
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would end this legitimate form of federal–local cooperation that has existed since the 1940s. See Order 80.
Plaintiffs also understate the consequences of the district court’s Fourth Amendment holding for §1357(g) agreements. See S.A.Opp.18. Those agreements reach far beyond “information-sharing practices.” S.A.Opp.18. For example, the agreements authorize issuing “immigration detainers,” serving “warrants of arrest for immigration violations,” and “process[ing] . . . immigration violations.” Exh. 42, App. D to Exh. A at 17-18—all of which would be prohibited under the district court’s reasoning.
B. SB4’s Enforcement-Assistance Provision Is Not Preempted. 1. Plaintiffs attack a straw man in defending the district court’s preemption holding: They repeatedly pretend that SB4’s enforcement-assistance provision (§752.053(b)(3)) turns local law-enforcement officers into immigration agents free from federal control. See E.C.Opp.8-12; S.A.Opp.8-12. But §752.053(b)(3)’s text confirms that it only applies when “cooperation is pursuant to a ‘request, approval, or other instruction from the Federal Government.’” U.S.Br.4 (quoting Arizona, 567 U.S. at 410). Section 752.053(b)(3) applies only to policies barring local officials from “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance” (emphasis added). Thus, §752.053(b)(3) applies only when there has been a predicate request for cooperation from a federal immigration official. At all times, then, it is the federal government—not state or local officers—that retains “enforcement direction and discretion.” S.A.Opp.11.
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This limit is not “simply” a “promise” made by the State during litigation. E.C.Opp.9. SB4’s statutory text compels it.
In tension with their other arguments, plaintiffs contend that the district court did not “presume[] that SB4 requires localities to engage in unilateral immigration enforcement.” E.C.Opp.9 (emphasis added). In the very next line, though, they say that the court did “express[] concern about the State coercing unfettered immigration enforcement.” E.C.Opp.9 (emphasis added). “Unfettered” is just another word for “unilateral.” Regardless, any action that results from SB4’s enforcementassistance prohibition is necessarily fettered by the fact that it only deals with assisting or cooperating with a federal immigration official.
2. Ensuring local officers’ ability to assist and cooperate with federal immigration officials is not field (S.A.Opp.8-12) or conflict (E.C.Opp.8-12) preempted. Plaintiffs spend only a few lines (S.A.Opp.11; E.C.Opp.11) addressing 8 U.S.C. §1357(g)(10)(B), which is fatal to their preemption argument.
Like the district court’s holding, plaintiffs’ view would render §1357(g)(10)(B) a nullity. This section expressly authorizes States and localities—even without a formal §1357(g) “agreement”—“to cooperate with the [federal government] in the identification, apprehension, detention, or removal of aliens.” Mot.12 (quoting 8 U.S.C. §1357(g)(10)(B)). There is no need to “distinguish[] between” (S.A.Opp.10) conflict and field preemption here because §1357(g)(10)(B) expressly allows the cooperation contemplated in §752.053(b)(3). Where Congress expressly allows state or local action, there can be no conflict. And, simultaneously, express allowance shows that Congress intended the opposite of occupying the field.
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It is preposterous for plaintiffs to suggest that “the federal government has so dramatically changed its position” here. E.C.Opp.12. As the Supreme Court in Arizona noted, the prior Presidential Administration acknowledged that 8 U.S.C. §1357(g)(10)(B) permitted States and localities—even without a formal §1357(g) agreement—to “participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities.” 567 U.S. at 410. The United States continues to adhere to this view. U.S.Br.4 (listing six examples of cooperation permitted under §1357(g)(10)(B) without a formal agreement). In each of these endeavors, “the Federal Government retain[s] enforcement direction and discretion,” S.A.Opp.11, and in no way does this somehow “deprive the Federal Government . . . of . . . flexibility and discretion,” E.C.Opp.11. As explained above, §752.053(b)(3) only applies when there is a predicate federal request for cooperation.
Section 1357(g)(10)(B), of course, “does not trump the rest of the INA.” S.A.Opp.11. The rest of §1357(g), however, does not address mere assistance and cooperation; it addresses when state or local officials can be deputized to directly “perform the functions of an immigration officer.” Arizona, 567 U.S. at 408. The INA’s “detailed framework” (S.A.Opp.11) governing formal §1357(g) agreements is about authorizing local officials directly to enforce immigration law as deputized de facto federal immigration agents—not merely assisting and cooperating with a federal immigration officer. Mot.13.
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Plaintiffs’ own practices highlight the disingenuousness of their newfound belief that local officers need a formal §1357(g) agreement to assist or cooperate with federal immigration officials in immigration enforcement. Plaintiff Travis County, for instance, contends that “the detention of aliens” is included in §1357(g)(1) and argues that it thus must be read to be the exclusive function of federal immigration officers. E.C.Opp.8 n.3. But, like nearly all jurisdictions, Travis County has long cooperated with federal immigration officials to detain aliens under ICE detainers—at least when, in its “discretion and judgment,” it determined that it was “appropriate to hold an individual,” Exh. 11 (Hernandez Decl.) ¶26—all without a formal §1357(g) agreement.
Nor does §752.053(b)(3) impermissibly put local officials in a position where they “‘cannot satisfy [their] state duties without the Federal Government’s special permission and assistance.’” E.C.Opp.9-10 (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 623-24 (2011)). Section 752.053(b)(3) creates no express or implied duty for a local officer to act in the absence of a federal official’s request for assistance. PLIVA concerned state labeling requirements for generic-drug manufacturers. 564 U.S. at 617. To comply with the state laws, generic manufacturers would have had to first convince the FDA to change its branded labeling requirements to require stronger labels, as federal regulations require generics and branded drugs to have the same warning labels. Id. That is, “state law imposed a duty on the Manufacturers to take a certain action, and federal law barred them from taking that action.” Id. at 624. There is no such conflict here. Federal immigration officials are the ones
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who would ultimately determine what steps to take (or not to take) to enforce federal immigration law.
Similarly, there can be no conflict in the enforcement “method” (E.C.Opp.10), because any assistance or cooperation rendered will necessarily be at the “request, approval, or other instruction from the Federal Government.” Arizona, 567 U.S. at 410. Plaintiffs’ arguments to the contrary are premised on their unsupported belief that Congress somehow mandated that any cooperation with federal immigration officials had to be determined on an ad hoc basis by every locality in the Nation, right on down to El Cenizo. See E.C.Opp.10. Neither the INA nor any other statute evinces this counterintuitive intent. Congress encouraged local cooperation with federal immigration officials. 8 U.S.C. §§ 1357(g)(10), 1373, 1644. As the United States explains (U.S.Br.4): “The INA permits such cooperation whether it is directed by state statute or is implemented ad hoc by a local sheriff.” In fact, plaintiffs’ position would lead to significantly more disuniformity in the federal government’s ability to enforce immigration law.
At bottom, this is an issue about the division of power between a State and its own municipalities. The U.S. Constitution does not constrain a State’s ability to direct its own localities or local law-enforcement officials, whose power is set at “the absolute discretion of the State.” Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907); accord, e.g., Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996). The State’s ability to shape policies adopted by its political subdivisions, see Tex. Const. art. XI, § 1 (counties are “legal subdivisions of the State”), and to regulate its own officials, see, e.g., id. art. V, § 23 (sheriffs’ “duties . . . shall be prescribed by
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the Legislature”), is unquestionably an exercise of the State’s traditional police powers. E.g., Kelley v. Johnson, 425 U.S. 238, 247 (1976). The State has every right to prohibit its own local subdivisions from impeding the immigration-enforcement cooperation that the federal government actively encourages. See, e.g., Arizona, 567 U.S. at 412.
C. SB4’s Endorsement Prohibition Does Not Violate Free Speech. 1. Plaintiffs incorrectly assert that “accepting the State’s position would require rewriting, not construing, the statute.” S.A.Opp.20. The State has offered a construction of “endorse” matching its dictionary definition, by which “endorse” is understood to mean “to sanction,” Mot.15; Exh. 15 at 42-43. For the reasons explained by the State, id., this construction would make the best sense in context of the subsection and SB4 as a whole, would not render “endorse” “surplusage” (S.A.Opp.20), and most importantly would obviate all constitutional concerns. 2. As to remedy, nearly every plaintiff now concedes that the proper remedy for any First Amendment problem with “endorse” would be to strike that word alone. See S.A.Opp.22-23; Exh. 25 at 53 (statement of El Cenizo counsel). The district court said it was rejecting the State’s “suggest[ion] that perhaps the Court could just strike the word ‘endorse.’” Order 39. In the event this court concludes that “endorse” necessitates an injunction on constitutional grounds, it should clarify that only that word is enjoined.
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D. SB4’s “Materially Limit” Prohibitions Are Not Facially Vague. 1. The contours of SB4 are clear. Cf. E.C.Opp.1-2, 4-7. SB4 directs officials not to “adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” §752.053(a)(1). Nor may officials, “as demonstrated by pattern or practice, prohibit or materially limit the enforcement of immigration laws.” §752.053(a)(2). Plaintiffs concede that SB4 clearly prohibits policies that plaintiffs have in place today.5 The best example is that El Cenizo’s Mayor alleges it has a “sanctuary city” policy that “limits the situations in which [city] . . . officials can engage in immigration enforcement or collect and disseminate such information.” ROA.463 (ECF No. 24-8) (Reyes Decl.) ¶19. El Cenizo admits that “SB4 would prohibit the enforcement of [its] ordinance.” Id. Thus, SB4 has an obviously valid “core,” which forecloses a claim of facial vagueness. Smith v. Goguen, 415 U.S. 566, 578 (1974). Indeed, §752.053(b)(1)-(4) provide enumerated examples of what is prohibited under §752.053(a)(1)-(2). Policies materially limiting lawful immigration-status inquiries are clearly covered. §752.053(b)(1). Thus, the Maverick County Sheriff’s policy that he “currently instruct[s] [his] deputies not to inquire as to an individual’s immigration status during a law enforcement contact” is covered. ROA.446 (ECF No. 24-5) (Schmerber Decl.) ¶19.
5 It is thus irrelevant for this facial vagueness claim that plaintiffs raise some as-applied challenges implicating plaintiff officials’ own conduct. E.C.Opp.5.
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Policies materially limiting information-sharing with the federal government are clearly covered. §752.053(b)(2). The district court upheld this provision. See Order 11-18.
Policies materially limiting lawful, “reasonable or necessary,” enforcement cooperation “with a federal immigration officer” are clearly covered. §752.053(b)(3). Arizona noted that local law enforcement could “participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities.” 567 U.S. at 410. Thus, the policy that the “Maverick County Sheriff’s Office will not participate or cooperate in the arrests of individuals for civil immigration violations,” ROA.443 (ECF No. 24-5) ¶9, is covered.
Policies materially limiting federal access to jails would also be covered. §752.053(b)(4). So categorically declining federal ICE requests to assist with a raid or grant access to jails would be clearly prohibited. E.C.Opp.4.
2. Beyond the fact that SB4 has a clear valid core, plaintiffs repeatedly ignore the two key parameters of SB4’s coverage.
First, SB4 applies only to policies or practices addressing immigration enforcement—as opposed to general policies on matters like overtime and patrolling locations. See E.C.Opp.4. That is because “material[]” limits, §752.053(a)(1)-(2), are “substantial,” as opposed to insignificant, and require a “logical connection” between action and “consequential facts”—here, immigration enforcement. Mot.18.
So SB4 does not prohibit immigration-neutral local policies regarding bona fide resource allocation generally applicable to all law-enforcement activities. Sheriff
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Hernandez is thus incorrect that her practices of “declin[ing] requests from federal immigration authorities to assist them in the apprehension of individuals” because of “limited resources” will be prohibited under SB4.6 Exh. 11 (Hernandez Decl.) ¶46; see also ROA.1290 (ECF No. 57-4) (Manley Decl.) ¶23 (Austin Police Chief).
Second, SB4 applies only to policies implicating powers that a locality already has the lawful ability to perform. A local policy cannot possibly “limit the enforcement of immigration laws” if it prohibits actions that the locality already lacks the lawful power to perform. E.C.Opp.4 (emphasis added). In general, this means that SB4 applies only to policies involving situations where the federal government has first requested assistance or cooperation. Otherwise, local officials would be engaged in “unilateral” immigration-enforcement action, which is generally preempted under Arizona, 567 U.S. at 410.7 Hence, a policy banning unilateral immigration enforcement would not “materially limit” any “immigration enforcement” powers of the locality. §752.053(a)(1)-(2). That conclusion is further bolstered by §752.053(b)(3), which only covers assistance or cooperation “with a federal immigration officer” as “reasonable or necessary.”
Consequently, a police chief instructing officers not to hold detained motorists to ask about immigration status without reasonable suspicion, E.C.Opp.4, would not be implicated by SB4 because the Constitution already denies that authority.
6 Of course, if there were not actual bona fide resource constraints—and that was just a pretextual excuse masking a “pattern or practice,” §752.053(a)(2), of materially limiting cooperation with federal requests for assistance—then SB4 would apply.
7 State and local officials are permitted to unilaterally ask about immigration status, at least when (1) they have made an arrest, stop, or detention “on some other legitimate basis” and (2) there is “reasonable suspicion” of removability. Arizona, 567 U.S. at 411; see §752.053(b)(1) (inquiry permissible if person is “under a lawful detention or under arrest”).
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See Order 84 (“questioning not supported by any quantum of suspicion” satisfies the Fourth Amendment only if “it does not prolong an otherwise lawful detention” (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). Nor would the scenario involving patrolling priorities, E.C.Opp.4, because cities have no “unilateral” immigration-enforcement authority in that field to “materially limit.”
3. Plaintiffs misread Johnson v. United States, 135 S. Ct. 2551 (2015). See E.C.Opp.7. Johnson did not invert established facial-challenge doctrine and hold that when a law is vague as-applied to some possible situation then it must be invalidated facially. Rather, Johnson merely establishes that the possibility of validity “as applied to some conduct” in the abstract does not insulate a statute from vagueness. Crooks v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016) (quoting Johnson, 135 S. Ct. at 2557, 2561).
Crucially, unlike in Johnson, several plaintiffs here concede that their conduct would be covered by SB4. See supra pp.12-13; Exh. 15 at 35-36. That alone means SB4 is not facially vague.
Moreover, the State has not yet enforced the challenged provisions of SB4 against anyone. Cf. Johnson, 135 S. Ct. at 2561. As explained above, various hypotheticals asserted by plaintiffs would not be covered under SB4’s text, confirming that the proper challenge to any application of SB4 on the margins is in postenforcement proceedings. Mot.19; see Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (as-applied claims are “the basic building blocks of constitutional adjudication.” (citation omitted)).
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4. This case is fundamentally different than one challenging regulation of private conduct. In those cases, plaintiffs may argue that compliance is too burdensome because it chills protected activity. E.g., E.C.Opp.7-8 (citing Women’s Med. Ctr. of N.W. Hous. v. Bell, 248 F.3d 411, 422 (5th Cir. 2001)). But SB4 does not implicate constitutionally protected conduct; it sets the standards of conduct for the State’s own law-enforcement officers.
II. The Other Factors Favor a Stay. A. The El Cenizo plaintiffs wrongly claim (E.C.Opp.18) that the State faces
“no irreparable harm” from the injunction of its public-safety law. That is contrary to binding circuit precedent: “When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.” Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013).
Whereas the San Antonio plaintiffs do not dispute this point (S.A.Opp.3), the El Cenizo plaintiffs rest their view on a single decision that is both nonprecedential (which plaintiffs do not note) and readily distinguishable. It merely reasoned that six years’ delay by a plaintiff in seeking injunctive relief for an alleged commercial wrong suggested that damages were an adequate remedy. Dillard v. Sec. Pac. Corp., 85 F.3d 621, at *4 (5th Cir. 1996) (per curiam) (unpublished). In contrast, this case involves the timely defense of a state law responding to evolving public-safety concerns, and plaintiffs here certainly have not agreed to pay damages for their noncompliance with the State’s public-safety directives in SB4.
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Under binding circuit precedent, the public-interest factor also favors the government when challenging a court’s injunction: “As the State is the appealing party, its interest and harm merge with that of the public.” Planned Parenthood, 734 F.3d at 419 (citing Nken v. Holder, 566 U.S. 418, 435 (2009), which holds that “these factors merge” when the government suffers irreparable harm).
Even beyond the fact that the State’s public-safety statute has been enjoined, the State and its citizens suffer harm from having to release individuals that the federal government itself is trying to detain with probable cause of legal violations. SB4 directs law-enforcement agencies not to prohibit their officers from participating in federal enforcement of immigration law, which the El Cenizo plaintiffs contend (E.C.Opp.18) “will harm public safety.” Plaintiffs are free to argue to legislators that the enforcement of immigration law harms public safety. But courts should be loath to find a public interest in nonenforcement of the law.
Plaintiffs also miss the point in arguing that the injunction will not seriously affect local cooperation in federal immigration-law enforcement. Plaintiffs note that Texas localities generally voluntarily complied with ICE detainers before SB4. E.C.Opp.18; S.A.Opp.4. Plaintiffs thus argue that harm to the State is minimal because the district court’s injunction of “the mandatory, coercive scheme created by SB4” leaves the State’s law-enforcement agencies free to “cooperate with the federal government” voluntarily. E.C.Opp.20; accord S.A.Opp.4-5.
But on the district court’s and plaintiffs’ reasoning, even voluntary local compliance with ICE detainers is unlawful. See supra pp.5-8; Mot.1-2. The Fourth Amendment and preemption reasoning below has nothing to do with whether local
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participation in immigration enforcement is voluntary versus compelled. See Order 19-33, 65-81. Instead, the reasoning below holds that any local compliance with ICE detainers violates the Fourth Amendment and any local assistance in immigration enforcement without a formal §1357(g) agreement is preempted. Id.
Hence, the order puts localities throughout Texas on notice that they will face litigation if those localities even voluntarily comply with ICE detainers or engage in enforcement assistance. That point is why the irreparable harm from the injunction is so far-reaching, why the United States favors a stay, and why the McCraw and Waybourn declarations properly explain the injunction’s factual consequences.8
B. Plaintiffs have no substantial harm that outweighs the irreparable harm to the State. Much of plaintiffs’ equity argument draws on their merits arguments attacking SB4—which fail, as explained above.
The rest of plaintiffs’ equity argument assails the consequences if SB4’s enforcement mechanisms take effect, such as potential penalties assessed under SB4. But that is not irreparable harm to plaintiffs—particularly given that the State is likely to prevail on the merits. If the State initiated an enforcement proceeding against any official for violation of SB4, that official could raise constitutional challenges to SB4 as a defense in such a proceeding. The penalties would not be imposed unless they are lawful. Indeed, such an enforcement proceeding would be a
8 The El Cenizo plaintiffs object to the declarations as expressing legal conclusions. E.C.Opp.20 n.12. This is unfounded. The declarations explain the consequences of the district court’s injunction—as any evidence on a stay motion will. Exhs. 41, 42. Regardless of whether the injunction itself prohibits pre-SB4-type voluntary cooperation, McCraw and Waybourn are explaining the factual consequences on state and local law enforcement of the district court’s reasoning in the injunction—whose scope is undisputed. See Fed. R. App. P. 8(a)(2)(B)(ii) (stay motions may include sworn statements of facts subject to dispute).
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better vehicle to address plaintiffs’ vagueness challenges, as pre-enforcement challenges like this one are particularly disfavored. See supra p.15.
To the extent the plaintiff cities and officials argue that such enforcement proceedings will not occur because they will be incentivized to honor all ICE-detainer requests and cooperate with federal immigration enforcement, that is not a cognizable Article III injury to those plaintiffs. They would be using official power delegated by the State to achieve such cooperation, and “a part of the state may not sue the state under the federal constitution.” Tex. Catastrophe Prop. Ins. Ass’n v. Morales, 975 F.2d 1178, 1182 (5th Cir. 1992). The Supreme Court and this Court have long refused to recognize injury simply because a subordinate state entity is compelled to use its state power in a particular way. Rather, this subject “is one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States.” Tr. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 630 (1819) (Marshall, C.J.), quoted in Morales, 975 F.2d at 1182; accord Coleman v. Miller, 307 U.S. 433, 441 (1939) (“Being but creatures of the State, municipal corporations have no standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator.”); Appling Cty v. Mun. Elec. Auth., 621 F.2d 1301, 1308 (5th Cir. 1980) (“a city or county cannot challenge a state statute on federal Constitutional grounds”); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 (5th Cir. 1976) (holding that a mayor had no standing and did “not possess constitutional rights . . . in the same sense as private corporations or individuals”).
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Conclusion The Court should grant a stay pending appeal.

KEN PAXTON Attorney General
JEFFREY C. MATEER First Assistant Attorney General

Respectfully submitted.
/s/ Scott A. Keller SCOTT A. KELLER Solicitor General
J. CAMPBELL BARKER Deputy Solicitor General
ARI CUENIN ERIC A. WHITE Assistant Solicitors General
ANGELA V. COLMENERO Chief, General Litigation Division
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 scott.keller@oag.texas.gov
Counsel for Appellants

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Certificate of Service I certify that this document has been served by ECF or e-mail on September 19, 2017, upon the following:
Andre I. Segura Omar C. Jadwat Spencer E. Amdur Lee Gelernt American Civil Liberties Union 125 Broad Street New York, NY 10004 asegura@aclu.org ojadwat@aclu.org samdur@aclu.org lgelernt@aclu.org
Cecillia D. Wang Cody H. Wofsy Stephen Kang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 cwang@aclu.org cwofsy@aclu.org
Edgar Saldivar Andre Segura American Civil Liberties Union Foundation of Texas P.O. Box 8306 Houston, Texas 77288 esaldivar@aclutx.org asegura@aclutx.org
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Max Renea Hicks Law Office of Max Renea Hicks P.O. Box 303187 Austin, Texas 78703 (512) 480-8231 rhicks@renea-hicks.com
Luis Roberto Vera, Jr. Law Offices of Luis Roberto Vera & Associates, P.C. 111 Soledad, Ste. 1325 San Antonio, Texas 78205-2260 (210) 225-3300 lrvlaw@sbcglobal.net
Counsel for the El Cenizo Plaintiffs
Andrea E. Senteno Celina Ysela Moreno Marisa Bono Nina Perales John Paul Salmon MALDEF 110 Broadway Street #300 San Antonio, Texas 78205 (210) 224-5476 asenteno@maldef.org cmoreno@maldef.org mbono@maldef.org nperales@maldef.org tpellegrini@maldef.org jsalmon@maldef.org
Tanya G. Pellegrini MALDEF 1512 14th Street Sacramento, CA 95814 tpellegrini@maldef.org
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Thomas A. Saenz MALDEF 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 tsaenz@maldef.org
Deborah Lynne Klein Office of the City Attorney, Litigation Division Frost Bank Tower 100 West Houston Street, 18th Floor San Antonio, TX 78205 (210) 207-8940 Deborah.klein@sanantonio.gov
Cory D. Szczepanik Yolanda Cornejo Garcia Sidley Austin, L.L.P. 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 cszczepanik@sidley.com ygarcia@sidley.com
Jose F. Sanchez Sidley Austin, L.L.P. 555 West Fifth Street Los Angeles, CA 90013 jose.sanchez@sidley.com
Robin E. Wechkin Sidley Austin, L.L.P. 701 5th Avenue, Ste. 4200 Seattle, WA 98104 rwechkin@sidley.com
Counsel for the San Antonio Plaintiffs
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Jo Anne Bernal El Paso County Attorney 500 E. San Antonio 5th Floor, Ste. 503 El Paso, TX 79901 (915) 546-2050 joanne.bernal@ca.epcounty.com
Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209 (210) 892-8543 jgarza@trla.org
Michael Moran Garza Golando Moran, PLLC 115 E. Travis St., Ste. 1235 San Antonio, TX 78205 michael@ggmtx.com
Mimi M.D. Marziani Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 mimi@texascivilrightsproject.org
Efren Carlos Olivares Texas Civil Rights Project 1017 W. Hackberry Alamo, TX 78516 (956) 787-8171 efren@texascivilrightsproject.org
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Mary B. McCord Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001-2075 mbm7@georgetown.edu
Counsel for the El Paso Plaintiffs
Christopher J. Coppola City of Austin P.O. Box 1546 Austin, Texas 78767 Christopher.coppola@austintexas.gov
Michael John Weills Siegel City of Austin Law Department P.O. Box 1088 Austin, TX 78767 (512) 974-2888 michael.siegel@austintexas.gov
Counsel for the Austin Intervenor Plaintiffs
Anthony J. Nelson Laurie R. Eiserloh Sharon Talley Sherine E. Thomas Tim Labadie Travis County Attorney P.O. Box 1748 Austin, TX 78767 (512) 854-9415 tony.nelson@traviscountytx.gov laurie.eiserloh@traviscountytx.gov sharon.talley@traviscountytx.gov sherine.thomas@traviscountytx.gov tim.labadie@traviscountytx.gov
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Counsel for the Travis County Intervenor Plaintiffs
Charles S. Estee Stacy Jordan Rodriguez Barbara Elaine Rosenberg City Attorney’s Office 1500 Marilla Street, Room 7B North Dallas, Texas 75201 (214) 670-3519 Charles.estee@dallascityhall.com Stacy.rodriguez@dallascityhall.com Barbara.rosenberg@dallascityhall.com
Counsel for Intervenor Plaintiff the City of Dallas
Ronald C. Lewis Judith L. Ramsey Patricia L. Casey Connica Lemond Collyn A. Peddie Fernando De Leon City of Houston Legal Department 900 Bagby, 4th Floor Houston, Texas 77002 (832) 393-6491 ronald.lewis@houstontx.gov Judith.ramsey@houstontx.gov pat.casey@houstontx.gov connica.lemond@houstontx.gov collyn.peddie@houstontx.gov Fernando.deleon2@houstontx.gov
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Paul Yetter Lonny Hoffman Grant Martinez Yetter Coleman, L.L.P. Suite 3600 909 Fannin Street 2 Houston Center Houston, TX 77010 pyetter@yettercoleman.com lhoffman@yettercoleman.com gmartinez@yettercoleman.com Counsel for Intervenor Plaintiff the City of Houston Rolando L. Rios Law Offices of Rolando L. Rios 115 E. Travis, Ste. 1645 San Antonio, Texas 78205 (210) 222-2102 rios@sbcglobal.net Counsel for Intervenor Plaintiff the Texas Association of Hispanic County Judges and County Commissioners
/s/ Scott A. Keller SCOTT A. KELLER
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Certificate of Compliance I certify that, on September 19, 2017, this document was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit via the Court’s CM/ECF document filing system. I certify that (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper document, 5th Cir. R. 25.2.1; and (3) the electronic submission has been scanned with the most recent version of commercial virus-scanning software and was reported free of viruses. I certify that this motion complies with the type-volume limitation of Rule 27(d)(2) and this Court’s order of September 14, 2017 granting leave to file a reply brief in excess of the word-count limitation because it contains no more than 5,000 words, and complies with the typeface and style requirements of Rule 32(a)(5) and (a)(6) because it was prepared in Microsoft Word using 14-point Equity typeface.
/s/ Scott A. Keller SCOTT A. KELLER
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 No. 17-50762
In the United States Court of Appeals for the Fifth Circuit
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, MAYOR, CITY OF EL CENIZO; TOM SCHMERBER, COUNTY SHERIFF; MARIO A. HERNANDEZ, MAVERICK COUNTY CONSTABLE PCT. 3-1; LEAGUE OF
UNITED LATIN AMERICAN CITIZENS,; MAVERICK COUNTY; CITY OF EL PASO,
Plaintiffs – Appellees.
CITY OF AUSTIN, JUDGE SARAH ECKHARDT, IN HER OFFICIAL CAPACITY AS TRAVIS COUNTY JUDGE; SHERIFF SALLY HERNANDEZ, IN HER OFFICIAL CAPACITY AS TRAVIS COUNTY SHERIFF; TRAVIS COUNTY, CITY OF DALLAS, TEXAS; TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES
AND COUNTY COMMISSIONERS; THE CITY OF HOUSTON, Intervenors - Plaintiffs - Appellees v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS, IN HIS OFFICIAL CAPACITY, KEN PAXTON, TEXAS ATTORNEY GENERAL, Defendants - Appellants
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY, IN HIS OFFICIAL CAPACITY; TEXAS ORGANIZING PROJECT EDUCATION FUND; MOVE SAN ANTONIO, Plaintiffs - Appellees v.
STATE OF TEXAS; GREG ABBOTT, GOVERNOR; KEN PAXTON, ATTORNEY GENERAL; STEVE MCCRAW, DIRECTOR OF THE TEXAS DEPARTMENT OF PUBLIC SAFETY, Defendants - Appellants
CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, IN HIS OFFICIAL CAPACITY AS SAN ANTONIO CITY COUNCILMEMBER; TEXAS ASSOCIATION OF CHICANOS IN HIGHER
EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT, Plaintiffs - Appellees
CITY OF AUSTIN, Intervenor Plaintiff - Appellee v.
STATE OF TEXAS; KEN PAXTON, SUED IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS; GREG ABBOTT, SUED IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF TEXAS,
Defendants – Appellants.
On Appeal from the United States District Court for the Western District of Texas, San Antonio Division, Nos. 5:17-cv-00404; 5:17-cv-459; 5:17-cv-489
APPELLEES’ OPPOSITION TO STATES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF APPELLANTS’ MOTION FOR STAY

Ronald C. Lewis, SBN: 12305450 City Attorney Judith L. Ramsey, SBN: 16519550 Chief, General Litigation Section Patricia L. Casey, SBN: 03959075 Senior Assistant City Attorney Collyn A. Peddie, SBN: 15707300 Senior Assistant City Attorney Connica Lemond, SBN: 24031937 Senior Assistant City Attorney Fernando de Leon, SBN: 24025325 Senior Assistant City Attorney CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, TX 77002 Phone: (832) 393-6491 Ronald.lewis@houstontx.gov Judith.ramsey@houstontx.gov Pat.casey@houstontx.gov Collyn.peddie@houstontx.gov Connica.lemond@houstontx.gov Fernando.deleon2@houstontx.gov (City of Houston)

R. Paul Yetter SBN: 22154200 Grant Martinez SBN: 24104118 Lonny Hoffman SBN: 00784282 YETTER COLEMAN LLP 909 Fannin Street, Suite 3600 Houston, TX 77010 Phone: (713) 632-8000 pyetter@yettercoleman.com gmartinez@yettercoleman.com lhoffman@yettercoleman.com (City of Houston)
Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org (El Cenizo Plaintiffs)

Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011 asegura@aclutx.org esaldivar@aclutx.org (El Cenizo Plaintiffs)

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Appellee City of Houston1 respectfully opposes the untimely motion of the States of West Virginia, Louisiana, Alabama, Arkansas, Georgia, Missouri, Oklahoma, and South Carolina for leave to file an amicus brief in support of Appellants’ motion for a stay pending appeal.
The district court entered its preliminary injunction order on August 30, 2017. On September 5, Texas filed its emergency motion for a stay of the injunction pending appeal. Pursuant to this Court’s order, Appellees responded on September 12, and Appellants replied on September 19. At that point, after all parties had finished briefing the stay motion, and just three days before oral argument, the eight potential amici states sought leave to file a brief as amici curiae in support of the stay.
The Court should deny the motion for leave to file an amicus brief as untimely. Federal Rule of Appellate Procedure 29(a)(6) provides that an amicus curiae “must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed.” Fifth Circuit Rule 29.1 likewise provides that “Those wishing to file an amicus
1 The following Appellees join in the City of Houston’s opposition: City of Dallas, El Paso County, City of El Cenizo, League of United Latin American Citizens, Raul L. Reyes, Tom Schmerber, Mario A. Hernandez, Maverick County, Texas Organizing Project Education Fund, MOVE San Antonio.

curiae brief should file a motion within 7 days after the filing of the principal brief of the party whose position the amicus brief will support.”
The potential amici here support Texas, which filed its “principal brief” on September 5. See LaRue v. DeWolff, Boberg & Assocs., Inc., 458 F.3d 359, 361 (4th Cir. 2006) (“The term ‘principal brief’ would appear to refer to the lead brief filed by a party in anticipation of argument . . . and not to something such as a reply brief . . . .”). The seven-day deadline was therefore September 12, which itself (had these amici filed then) would have been prejudicial since Appellees’ briefs were due that day under the accelerated briefing schedule. Instead, amici filed the motion for leave a week late on September 19. Consequently, their motion for leave to file should be denied. See Kreisberg ex rel. N.L.R.B. v. Healthbridge Mgmt., LLC, 2013 WL 690977, at *1 (2d Cir. 2013) (denying, as untimely under former Rule 29(e), leave to file amicus brief on motion for a stay of an injunction).
Although a “court may grant leave for later filing,” Fed. R. App. P 29(a)(6), these potential amici have not sought permission for an untimely brief or even tried to excuse their late filing. See also Fed. R. App. P. 26(b) (permitting extension of time for “good cause”). Needless to say, given the widespread notoriety of SB-4 and sophistication of these states’ legal representation, this is not a situation where ignorance of deadlines or lack of resource can be an excuse.
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In addition, granting leave at this late stage will significantly prejudice Appellees, who would have no opportunity to respond to amici’s arguments in writing and would potentially be forced to sacrifice a disproportionate share of their oral argument time to do so. The seven-day deadline was designed to permit the opposing party to “have sufficient time to review arguments made by the amicus and address them in the party’s responsive pleading.” Fed. R. Civ. P. 26, 1998 committee notes on subdivision (e). At this point, the parties are preparing for oral argument on Friday, September 22, after complying with a compressed briefing schedule. Requiring Appellees to review, analyze, and respond in two days to a late-filed amicus brief – for which the requesting filers give no excuse for its delay – will distract Appellees from critical preparation for oral argument in this significant matter.
If the potential amici wish to participate in merits-stage briefing, they should follow the Rules and seek to do so at the appropriate time. At this juncture, they lack any interest or explanation sufficient to warrant permission for a late and materially prejudicial filing. And since the Court is addressing a stay pending appeal of an injunction which applies only to Texas, other states will not be significantly impacted by these preliminary proceedings.
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CONCLUSION For these reasons, Appellees respectfully request that the Court deny the untimely motion for leave to file an amicus brief by potential amici.
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Dated: September 20, 2017
Ronald C. Lewis City Attorney SBN: 12305450 Judith L. Ramsey Chief, General Litigation Section SBN: 16519550 Patricia L. Casey Senior Assistant City Attorney SBN: 03959075
/s/ Collyn A. Peddie________ Collyn A. Peddie Senior Assistant City Attorney SBN: 15707300 Connica Lemond Senior Assistant City Attorney SBN: 24031937 Fernando de Leon Senior Assistant City Attorney SBN: 24025325 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, TX 77002 Phone: (832) 393-6491 Ronald.lewis@houstontx.gov Judith.ramsey@houstontx.gov Pat.casey@houstontx.gov Collyn.peddie@houstontx.gov Connica.lemond@houstontx.gov Fernando.deleon2@houstontx.gov (City of Houston)

Respectfully submitted,
/s/ R. Paul Yetter___________ R. Paul Yetter Grant Martinez Lonny Hoffman YETTER COLEMAN LLP 909 Fannin Street, Suite 3600 Houston, Texas 77010 (713) 632-8000 (713) 632-8002 (Fax) pyetter@yettercoleman.com gmartinez@yettercoleman.com lhoffman@yettercoleman.com (City of Houston)
/s/ Lee Gelernt_____________ Lee Gelernt Omar C. Jadwat Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org samdur@aclu.org
Andre I. Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, TX 77004 Phone: (713) 325-7011

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Larry E. Casto Dallas City Attorney
/s/ Charles S. Estee_________ Charles S. Estee Assistant City Attorney SBN: 06673600 Stacy Jordan Rodriguez SBN: 11016750 Barbara E. Rosenberg SBN: 17267700 DALLAS CITY ATTORNEY’S OFFICE 1500 Marilla Street, Room 7DN Dallas, Texas 75201 Telephone: (214) 670-3519 Telecopier: (214) 670-0622 charles.estee@dallascityhall.com stacy.rodriguez@dallascityhall.com barbara.rosenberg@dallascityhall.com (City of Dallas)
/s/ Efren Carlos Olivares______ Efren Carlos Olivares SOUTH TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Avenue Alamo, TX 78516 Telephone: (956) 787-8171 Facsimile: (956) 787-6348
Mary B. McCord INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University law Center 600 New Jersey Avenue, NW Washington, DC 20001 Telephone: (202) 661-6607 (Texas Organizing Project Education Fund and MOVE San Antonio)

(El Cenizo Plaintiffs) Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net (El Cenizo Plaintiffs)
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com (El Cenizo Plaintiffs)
Cody Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0770 cwofsy@aclu.org (El Cenizo Plaintiffs)
/s/ Jose Garza_______________ Jose Garza Michael Moran Martin Golando GARZA GOLANDO MORAN 115 E. Travis Street, Suite 1235 San Antonio, TX 78205 Telephone: (210) 892-8543 (El Paso County)

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system on September 20, 2017. I certify that a true and correct copy of this document has been served on all counsel of record via the Court’s CM/ECF system.
/s/R. Paul Yetter R. Paul Yetter
CERTIFICATE OF COMPLIANCE I certify that: 1. This document complies with the length limitation of Federal Rule of Appellate Procedure 27(d)(2) because it contains 734 words and does not exceed 5,200 words, exclusive of the parts of the document exempted by Federal Rule of Appellate Procedure 27(d)(2).
2. This document complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 27(d)(1) because it was prepared in Microsoft Word 14-point, proportionally spaced Times New Roman font.
/s/R. Paul Yetter R. Paul Yetter
-7-

 
 Case: 17-50762 Document: 00514384919 Page: 1 Date Filed: 03/13/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 17-50762

March 13, 2018 Lyle W. Cayce

Clerk

CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY,

Plaintiffs - Appellees Cross-Appellants

CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; THE CITY OF HOUSTON,

Intervenors - Plaintiffs - Appellees Cross-Appellants v.

STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General,

Defendants - Appellants Cross-Appellees

------------------------------------------------------------------------------------------------------------
EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; JO ANNE BERNAL, El Paso County Attorney in her Official Capacity; MOVE San Antonio,
Plaintiffs - Appellees Cross-Appellants
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS,
Intervenor - Plaintiff - Appellee Cross-Appellant

Case: 17-50762 Document: 00514384919 Page: 2 Date Filed: 03/13/2018
No. 17-50762
v. STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety,
Defendants - Appellants Cross-Appellees -----------------------------------------------------------------------------------------------------------CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT; CITY OF EL PASO,
Plaintiffs - Appellees Cross-Appellants CITY OF AUSTIN,
Intervenor Plaintiff - Appellees Cross-Appellants
v. STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas,
Defendants - Appellants Cross-Appellees
Appeals from the United States District Court for the Western District of Texas
Before JONES, SMITH, and PRADO, Circuit Judges. EDITH H. JONES, Circuit Judge:
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No. 17-50762 Texas cities, counties, and local officials challenge Senate Bill 4 (“SB4”), a Texas law that forbids “sanctuary city” policies throughout the state. SB4 prohibits local authorities from limiting their cooperation with federal immigration enforcement, and it requires local officers to comply with Immigration and Customs Enforcement (“ICE”) detainer requests. In their pre-enforcement lawsuit, the plaintiffs alleged a battery of constitutional violations: (I) SB4 is preempted by federal immigration law, (II) SB4’s “endorse” prohibition violates the First and Fourteenth Amendments, (III) SB4’s ICE-detainer mandate violates the Fourth Amendment, and (IV) SB4’s phrase “materially limits” is unconstitutionally vague under the Fourteenth Amendment. The district court issued a preliminary injunction, enjoining several of the law’s provisions. Texas appeals the injunction, and the plaintiffs cross-appeal the district court’s refusal to issue a broader injunction. With one exception, SB4’s provisions do not, on their face, violate the Constitution. For the following reasons, we uphold the statute in its entirety except for the application of the “endorsement” prohibition, Tex. Gov’t Code § 752.053(a)(1), to elected officials.
BACKGROUND I. Senate Bill 4
In May 2017, the Texas Legislature enacted Senate Bill 4 to prohibit sanctuary city policies. The law imposes duties on certain state officials and provides civil and criminal liability for violations of those duties. Three parts of the law are critical to this case: (A) the immigration-enforcement provisions, (B) the ICE-detainer mandate, and (C) the penalty provisions. A. Immigration-Enforcement Provisions
As codified at Texas Government Code § 752.053(a)-(b), SB4 forbids local entities from limiting the enforcement of federal immigration law. Subsections (a)(1) and (a)(2) of Section 752.053 provide broad prohibitions.
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No. 17-50762 Under subsection (a)(1), a local entity may not “adopt, enforce, or endorse a policy under which [it] prohibits or materially limits” immigration enforcement. Id. § 752.053(a)(1). After subsection (a)(1) deals with anticooperation “policies,” subsection (a)(2) further prohibits any “pattern or practice” that similarly frustrates enforcement. Id. § 752.053(a)(2).
Following the general prohibitions in (a)(1) and (a)(2), subsection (b) enumerates concrete examples of immigration-enforcement activities that a local entity may not “prohibit or materially limit.” Id. § 752.053(b). These include (b)(1) “inquiring into the immigration status” of lawfully detained individuals, (b)(2) sharing immigration-status information with federal agencies, and (b)(3) “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” Id. § 752.053(b)(1)-(3).1
The prohibitions in Section 752.053 apply broadly to any “local entity or campus police department.” Id. § 752.053(a)-(c). SB4 defines “local entity” to include the governing bodies of counties and municipalities as well as officers or employees of those authorities, including “a sheriff, municipal police department, municipal attorney,[ ] county attorney[,] . . . district attorney or criminal district attorney.” See id. § 752.051(5)(A)-(C). But SB4 excludes hospitals, school districts, and certain community centers—as well as officers employed by these institutions—from the law’s requirements. See id. § 752.052(a)-(f). B. ICE-detainer Mandate
As codified at Texas Code of Criminal Procedure article 2.251, SB4’s ICEdetainer mandate requires law-enforcement agencies to comply with detainer
1 For convenience, these three provisions will be referred to as the “status-inquiry,” “information-sharing,” and “assistance-cooperation” provisions.
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No. 17-50762 requests submitted by ICE. An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security (“DHS”) as soon as practicable before an alien is released and (2) to maintain custody of the alien for up to 48 hours beyond the preexisting release date so that DHS may assume custody.2 As of April 2017, ICE must make this request using Form I-247A, which must be accompanied by a signed administrative warrant. Form I-247A states that DHS has determined that there is probable cause that the subject of the request is a removable alien, and ICE officers check one of four boxes on the form to indicate the basis for probable cause. 3
SB4’s ICE-detainer mandate applies whenever “[a] law enforcement agency [ ] has custody of a person subject to” an ICE detainer. Tex. Code Crim. Proc. art. 2.251(a). Under subsection (a), the mandate requires law enforcement agencies to “comply with, honor, and fulfill” ICE’s requests. Id. It also requires that the individual in custody be informed he “is being held pursuant to” an ICE detainer. Id. art. 2.251(a)(2).
Subsection (b) provides a lone exception to the detainer mandate: law enforcement agencies need not comply with detainers if shown “proof that the person is a citizen of the United States or . . . has lawful immigration status.” Id. art. 2.251(b). Subsection (b) states that such “proof” could include a Texas driver’s license or similar government-issued ID. Id. art. 2.251(b).
2 See U.S. Immigration and Customs Enforcement, Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at https://perma.cc/T6FJ-FXL3.
3 See U.S. Department of Homeland Security, Immigration Detainer – Notice of Action, DHS Form I-247A (3/17), available at https://perma.cc/RH4C-5D8Q.
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No. 17-50762 C. Penalty Provisions
SB4 is enforced through civil and criminal penalties by Texas’s Attorney General. Private citizens may file complaints with the Attorney General, alleging by sworn statement that a local entity is violating the enforcement provisions. See Tex. Gov’t Code § 752.055(a). Upon determining that such a complaint is valid, the Attorney General may file suit in state court to enforce the law. See id. § 752.055(b). If a court finds there has been a violation, local entities may be subject to fines of $1,000 to $1,500 for a first violation and $25,000 to $25,500 for subsequent ones, with each day of continuing violation constituting a separate violation. See id. § 752.056(a)-(b). If the Attorney General is presented with evidence that a public officer has violated the enforcement provisions, SB4 requires the Attorney General to file an enforcement action. See id. § 752.0565(b). Public officers found guilty of violating the law are subject to removal from office. See id. § 752.0565(c).
SB4 makes certain officials’ failure to comply with SB4’s ICE-detainer provision a misdemeanor. See Tex. Penal Code § 39.07(a)-(c). SB4 further requires Texas to indemnify local entities against any claim arising out of their good-faith compliance with an ICE-detainer request. See Tex. Gov’t Code § 402.0241. II. Prior Proceedings
Before SB4 could go into effect, several Texas cities, counties, local lawenforcement and city officials, and advocacy groups challenged the law in three consolidated actions. The plaintiffs sought a preliminary injunction, and the district court found the plaintiffs likely to prevail on the following claims:
• Section 752.053(b)(3)’s assistance-cooperation provision is field and conflict preempted by federal immigration law;
• Section 752.053(a)(1)’s “endorse” prohibition violates the First and Fourteenth Amendments because it is overbroad, discriminates on the basis of viewpoint, and is unconstitutionally vague; 6

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No. 17-50762 • Section 752.053(a)(1) and (a)(2)’s “materially limits” prohibitions
are unconstitutionally vague under the Fourteenth Amendment; and • Article 2.251’s ICE-detainer mandate violates the Fourth Amendment. Enjoining these provisions, the district court nevertheless rejected the plaintiffs’ claims that SB4 was preempted more generally. Following the district court’s order, Texas moved this court to stay the injunction pending appeal. The stay panel granted the motion in part, finding Texas likely to prevail on the Fourth Amendment and preemption claims, and stayed the injunction as to article 2.251’s ICE-detainer mandate and Section 752.053(b)(3)’s assistance-cooperation provision. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, at *2 (5th Cir. Sept. 25, 2017). The stay panel left the injunction in place as to the “endorse” and the “materially limits” prohibitions, concluding that possible limiting constructions of these terms “are best left for the time when this court’s ruling would have more finality.” Id. Texas now appeals the preliminary injunction, and the plaintiffs cross-appeal the district court’s refusal to enjoin SB4 completely.
STANDARD OF REVIEW “To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations omitted). This court “review[s] a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013)
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No. 17-50762 (citations omitted). Because the issues raised by the parties substantially overlap, we discuss the appeal and cross-appeal together.
DISCUSSION I. Preemption
Under the federal Constitution, “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398, 132 S. Ct. 2492, 2500 (2012). Because dual sovereignty allows for conflicts between state and federal legislation, the Constitution’s Supremacy Clause provides that federal legislation “shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Congress may preempt state legislation “by enacting a statute containing an express preemption provision,” Arizona, 567 U.S. at 399, 132 S. Ct. at 2500-01, but this case does not involve express preemption. Rather, the plaintiffs allege two forms of implied preemption: field preemption and conflict preemption. A. Field Preemption
Field preemption occurs when “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona, 567 U.S. at 399, 132 S. Ct. at 2501. Although the Supreme Court has recognized field preemption claims, it has indicated courts should hesitate to infer field preemption unless plaintiffs show “that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was ‘the clear and manifest purpose of Congress.’” De Canas v. Bica, 424 U.S. 351, 357, 96 S. Ct. 933, 937 (1976) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S. Ct. 1210, 1219 (1963)); see also Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 560 (5th Cir. 2013) (Higginson, J., specially concurring) (noting that De Canas forecloses sweeping field preemption claims). Analyzing the relevant federal legislation, we
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No. 17-50762 conclude that the plaintiffs have not satisfied this standard. Congress has not preempted the field that SB4 regulates.
The district court found only one provision of SB4 field preempted. According to the district court, Section 752.053(b)(3)’s assistance-cooperation provision impermissibly regulates the field of “immigration enforcement,” which Congress fully preempted through comprehensive regulation. The plaintiffs now argue that SB4 is field-preempted in its entirety because Congress occupied the field of “federal-local cooperation in immigration enforcement.”
As evidence that Congress has comprehensively regulated the relevant field, the plaintiffs point to federal statutes regulating local cooperation with immigration enforcement. See 8 U.S.C. § 1324(c) (permitting local officers to make arrests for crimes of immigrant smuggling, transporting, or harboring); id. § 1252c (authorizing local officers to make arrests to enforce criminal reentry provisions following INS “confirmation” of an individual’s immigration status); id. § 1103(a)(10) (authorizing local officers to enforce immigration law if the Attorney General has “determine[d] that an actual or imminent mass influx of aliens . . . presents urgent circumstances”); id. §§ 1373, 1644 (requiring that state and local jurisdictions permit their officers to send, receive, and maintain “information regarding the citizenship or immigration status” of individuals).
In addition to these provisions, the plaintiffs rely heavily on 8 U.S.C. § 1357, which specifies immigration-officer functions and describes circumstances under which state and local officers can perform those functions. Under Section 1357, immigration-officer functions include the power “to interrogate” and “to arrest” aliens without a warrant. Id. § 1357(a)(1)-(2). Section 1357 further provides that states and political subdivisions can enter into written agreements with the Federal Government, so that state and local
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No. 17-50762 officers can perform immigration-officer functions. Id. § 1357(g). These “287(g)”4 agreements require that local officers must be “determined by the Attorney General to be qualified”; that they receive appropriate training; that their powers and duties are set forth in a written agreement; and that they are “subject to the direction and supervision of the Attorney General.” Id. § 1357(g)(1)-(5). States and municipalities may not be required to enter into these agreements. Id. § 1357(g)(9).
Section 1357 also contains a critical savings clause. Id. § 1357(g)(10). Because the parties’ analysis focuses heavily on this provision, we quote it in full:
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. Id. § 1357(g)(10)(A)-(B). Therefore, although Section 1357 creates a highly regulated scheme for adopting 287(g) agreements, it also expressly allows cooperation in immigration enforcement outside those agreements. Id. The plaintiffs’ reliance on these provisions is misplaced; SB4 and the federal statutes involve different fields. Federal law regulates how local entities may cooperate in immigration enforcement; SB4 specifies whether they cooperate. One could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly.
4 The term “287(g)” refers to the section of the Immigration and Nationality Act that authorized these agreements. Lunn v. Commonwealth, 78 N.E.3d 1143, 1158 (Mass. 2017).
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No. 17-50762 See Arizona, 567 U.S. at 400-01, 132 S. Ct. at 2501-02 (defining the relevant field as “alien registration”); De Canas, 424 U.S. at 360 n.8, 96 S. Ct. at 938 (“Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution.”) (quoting Hines v. Davidowitz, 312 U.S. 52, 78-79, 61 S. Ct. 399, 410 (1941) (Stone, J., dissenting)).
To establish field preemption, moreover, the plaintiffs must prove that federal law evinces “the clear and manifest purpose of Congress” to preclude even complementary state legislation on the same subject. De Canas, 424 U.S. at 357, 96 S. Ct. at 937. Federal law does not suggest the intent—let alone a “clear and manifest” one—to prevent states from regulating whether their localities cooperate in immigration enforcement. Section 1357 does not require cooperation at all. Id. § 1357(g)(9). And the savings clause allowing cooperation without a 287(g) agreement indicates that some state and local regulation of cooperation is permissible. See id. § 1357(g)(10)(A)-(B).
There is a further weakness in this field preemption claim. The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement. See generally Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997). Congress could not pass a federal SB4. But if that is so, it seems impossible that Congress has occupied the field that SB4 regulates.
The district court’s field preemption analysis underscores the difference between SB4 and the relevant federal legislation. The district court found that Section 1357 demonstrates Congress’s intent to retain oversight over local immigration enforcement. But SB4 does nothing to strip oversight from the Federal Government. In its operation, SB4 is similar to one of the city ordinances some plaintiffs have themselves adopted. These ordinances regulate whether and to what extent the local entities will participate in
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No. 17-50762 federal-local immigration enforcement cooperation.5 SB4 accomplishes the same goal on a state-wide level. If SB4 is field preempted, so too are the local ordinances that regulate “federal-local cooperation in immigration enforcement.”
While this accentuates the substantive difference between SB4 and the relevant federal legislation, the plaintiffs’ arguments focusing on congressional intent sound principally in conflict preemption. We analyze these below. B. Conflict Preemption
Conflict preemption occurs when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, 373 U.S. at 142-43, 83 S. Ct. at 1217, or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67, 61 S. Ct. at 404. The district court held that only Section 752.053(b)(3) and its related penalties were conflict preempted, but the plaintiffs now argue that other provisions of SB4 impliedly conflict with federal law. We conclude that none of SB4’s provisions conflict with federal law.
i. The Assistance-Cooperation Provision Section 752.053(b)(3) of the Texas Government Code forbids any action
that would “prohibit or materially limit” a specified official from “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” See Tex. Gov’t Code § 752.053(b)(3). The plaintiffs argue that this provision is preempted for three reasons: (1) it permits unilateral local immigration enforcement, (2) it authorizes local officers to perform immigration-officer functions without a
5 For instance, the Maverick County Sheriff’s Office has a policy under which it does “not participate or cooperate in the arrests of individuals for civil immigration violations.”
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No. 17-50762 287g agreement, and (3) it conflicts with the federal purpose that local cooperation in immigration enforcement be entirely voluntary.
The plaintiffs’ first argument misconstrues the statute. Certainly, Arizona emphasized the “principle that the removal process is entrusted to the discretion of the Federal Government.” Arizona, 567 U.S. at 409, 132 S. Ct. at 2506. And the Court found Section 6 of Arizona’s SB1070 preempted because it granted local officers authority to conduct unilateral warrantless arrests of aliens suspected of being removable. See id. Unlike the statute in Arizona, however, SB4’s assistance-cooperation provision does not authorize unilateral enforcement. Indeed, the phrase “assisting or cooperating” requires a predicate federal request for assistance. See Tex. Gov’t Code § 752.053(b)(3). Subsection (b)(3) also specifies that this assistance and cooperation must occur “with a federal immigration officer as reasonable or necessary.” Id. § 752.053(b)(3). SB4’s assistance-cooperation provision does not permit local officials to act without federal direction and supervision.6
The plaintiffs’ second argument suggests that subsection (b)(3) conflicts with federal law by allowing local officers to engage in immigration-officer functions absent the requirements imposed by 8 U.S.C. § 1357(g). The plaintiffs stress that these requirements—a written agreement, training, and direct supervision by DHS—ensure that immigration enforcement adheres to congressional priorities and prevents the mistreatment of noncitizens. Section 752.053(b)(3) allegedly ignores these requirements, thereby undermining federal law’s delicate balance of statutory objectives.
6 We also note that this provision does not require cooperation unless it is “reasonable or necessary.” Tex. Gov’t Code § 752.053(b)(3). Thus, as Texas acknowledges, this provision does not generally preclude immigration-neutral policies regarding bona fide resource allocation—e.g., policies regarding overtime or patrolling locations.
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No. 17-50762 This argument discounts the savings clause in 8 U.S.C. § 1357(g)(10)(B), which explicitly provides that a 287(g) agreement is not required for states “otherwise to cooperate . . . in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” This provision indicates that Congress intended local cooperation without a formal agreement in a range of key enforcement functions. The plaintiffs rely on the word “otherwise” to argue that permissible cooperation must categorically exclude activities allowed under 287(g) agreements. We disagree. The savings clause clarifies that a 287(g) agreement is not required “(A) to communicate . . . or (B) otherwise to cooperate.” Id. § 1357(g)(10)(A)-(B). In context, the word “otherwise” refers to subsection (A) and explains that subsection (B) permits cooperation beyond communication—communication itself being a form of cooperation.7 The plaintiffs are wrong to suggest that this interpretation makes 287(g) agreements superfluous. Under these agreements, state and local officials become de facto immigration officers, competent to act on their own initiative. By contrast, Section 1357(g)(10)(B) and SB4’s assistancecooperation provision permit no unilateral enforcement activity. The plaintiffs also contend that this savings clause allows for only caseby-case cooperation. Yet a “case-by-case” qualifier is absent from the statute’s text. DHS guidance relied on by the plaintiffs also fails to support their argument. This guidance critiques “systematic” local enforcement that
7 DHS guidance confirms our interpretation of “otherwise”: “[1357(g)(10)(A)] must be read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for state and local officers to ‘otherwise cooperate’ with the Secretary, without a written agreement. Because the INA thus deems communications referred to in subparagraph (A) to be another form of ‘cooperation’ . . . .” DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters (emphasis in original), available at https://www.dhs.gov/sites/default/files/publications/guidance-state-localassistance-immigration-enforcement.pdf.
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No. 17-50762 “conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate.”8 State action under SB4’s assistancecooperation provision will not conflict with federal priorities or limit federal discretion in this way because it requires a predicate federal request. DHS guidance does not suggest that subsection (b)(3) authorizes conduct beyond what is allowed by Section 1357(g)(B)(10)’s savings clause.9
The plaintiffs’ third conflict argument unnecessarily reads a preemptive purpose into federal law; they claim that subsection (b)(3) makes mandatory what Congress intended to be voluntary. To support this argument, the plaintiffs observe that Section 1357(g) refers to both a “State” and a “political subdivision,” and they infer that Congress specifically intended that “political subdivisions” be able to choose whether to cooperate in immigration enforcement. The plaintiffs support this reading by pointing to 8 U.S.C. § 1373, which—somewhat like SB4’s information-sharing provision—prohibits states and local entities from refusing to share federal immigration-status information. According to the plaintiffs, Section 1373 proves that Congress could have required political subdivisions to cooperate more generally, but expressly chose not to do so.
The plaintiffs’ arguments fail for two reasons. First, recent Supreme Court decisions in this area undermine this implied congressional purpose. In Arizona, for instance, the Supreme Court upheld state laws mandating immigration-status inquiries. See Arizona, 567 U.S. at 411-415, 132 S. Ct. at
8 See id.
9 Indeed, DHS guidance also negates the plaintiffs’ argument that SB4 goes beyond Section 1357(g)(10)(B)’s savings clause by allowing for “assistance” as well as “cooperation.” In describing the conduct allowed under the savings clause, the DHS guidance uses a form of the word “assist” 40 times. See id.
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No. 17-50762 2508-10. Similarly, in Chamber of Commerce of U.S. v. Whiting, the Court upheld a state law mandating that employers check immigration status with an electronic-verification system. 563 U.S. 582, 611, 131 S. Ct. 1968, 1987 (2011) (concluding that state law fell within the Immigration Reform and Control Act’s savings clause). In neither case did federal law require these status inquiries. Yet the Supreme Court did not suggest that the states’ requirements conflicted with the congressional desire for voluntary cooperation. Indeed, the Court has repeatedly rejected a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives” because “such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law.” Whiting, 563 U.S. at 607, 131 S. Ct. at 1985 (citations omitted).
Second, and as noted earlier, the plaintiffs have admitted that, under the Tenth Amendment, Congress could not compel local entities to enforce immigration law. If that is the case, Congress did not choose to make these laws voluntary; it could not have made them mandatory. Section 1373 itself has not been immune from Tenth Amendment scrutiny. See City of New York v. United States, 179 F.3d 29, 34-37 (2d Cir. 1999) (upholding the federal legislation “[g]iven the circumscribed nature of [the court’s] inquiry”). Together with the shaky foundation of the plaintiffs’ imputed purpose, the Tenth Amendment implications show that SB4’s assistance-cooperation provision does not conflict with federal law.10
10 Because the assistance-cooperation provision does not conflict with federal law, neither do the penalties attached to it. When a state is allowed to substantively regulate conduct, it must be able to impose reasonable penalties to enforce those regulations. See, e.g., Whiting, 563 U.S. at 605-07, 131 S. Ct. at 1984-85 (rejecting the dissent’s reliance on the penalties attached to the valid regulation).
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No. 17-50762 ii. The Status-Inquiry and Information-Sharing Provisions
Section 752.053(b)(1) of the Texas Government Code, the status-inquiry provision, forbids local entities from preventing officers from “inquiring into the immigration status of a person under a lawful detention or under arrest.” See Tex. Gov’t Code § 752.053(b)(1). Subsection (b)(2), the information-sharing provision, forbids local entities from preventing officers from maintaining immigration-status information and sharing it with federal agencies. See id. § 752.053(b)(2). Because the Arizona Court upheld equivalent sections of a state statute, the plaintiffs’ arguments are insufficient to establish a conflict.
The plaintiffs contend that subsection (b)(1) authorizes “interrogation,” which is an immigration-officer function under 8 U.S.C. § 1357(g)(a)(1). But it is not clear why SB4’s status-inquiry provision authorizes impermissible conduct but the provision upheld in Arizona did not. In Arizona, the state law required local officers to make a “reasonable attempt . . . to determine the immigration status” of anyone who has been lawfully detained if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Arizona, 567 U.S. at 411, 132 S. Ct. at 2507. The law also required that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Id.
If anything, the statute in Arizona seems more problematic because it mandates status inquiries where SB4 merely forbids preventing those inquiries. True, the Court in Arizona seemed to assume that status inquiries primarily involved communication with ICE and the statute in Arizona uses the word “reasonable.” See Arizona, 567 U.S. at 411-12, 132 S. Ct. at 2507-08. But no suspicion—reasonable or unreasonable—is required for officers to ask questions of lawfully-detained individuals. See Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465, 1471-72 (2005). And it would be wrong to assume that SB4 authorizes unreasonable conduct where the statute’s text does not require
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No. 17-50762 it. See Arizona, 567 U.S. at 415, 132 S. Ct. at 2510 (quoting Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S. Ct. 813, 817-18 (1960)) (noting that the Court’s precedents “enjoin seeking out conflicts between state and federal regulation where none clearly exists”).11
Regarding subsection (b)(2), the plaintiffs observe that this provision mirrors the federal information-sharing provisions in 8 U.S.C. § 1373 but imposes harsher penalties. Section 1373, however, does not comprise any comprehensive regulatory framework with which SB4 could conflict. As noted above, the Tenth Amendment would likely preclude Congress from enforcing Section 1373 with the penalties provided by SB4. Moreover, the Arizona Court emphasized that Congress “has encouraged the sharing of information about possible immigration violations.” Arizona, 567 U.S. at 412. In light of Arizona, neither the status-inquiry nor the information-sharing provisions of SB4 are conflict preempted.12 II. The “Endorse” Prohibition
Section 752.053(a)(1) provides that a “local entity or campus police department” may not “endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” See Tex. Gov’t Code § 752.053(a)(1) (emphasis added). The term “local entity” includes not only governmental bodies like city councils and police departments, but also a series of elected officials and “officer[s] or employee[s]” of the listed
11 The plaintiffs also rely on the fact that the Supreme Court merely held that Arizona’s status-inquiry provision was not susceptible to a facial challenge. But, of course, this case also involves a facial challenge.
12 The plaintiffs also challenge subsections (a)(1) and (a)(2), which broadly forbid any “policy” or “pattern or practice” that “prohibits or materially limits the enforcement of immigration laws.” They argue that these subsections may authorize conduct that is impermissible under the federal savings clause, 8 U.S.C. § 1357(g)(10)(B), even if subsections (b)(1)-(3) do not. We decline to infer a conflict based solely on speculation. See Arizona, 567 U.S. at 415, 132 S. Ct. at 2510.
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No. 17-50762 bodies. See id. § 752.051(5)(A)-(C). The district court concluded that the term “endorse” (1) was overbroad, (2) constituted viewpoint discrimination, and (3) was unconstitutionally vague. To the extent that “endorse” prohibits core political speech by elected officials, it is not “readily susceptible” to a limiting construction that avoids constitutional concerns. Accordingly, on different reasoning from that employed by the district court, we apply the principle of severability and reject the application of the “endorse” provision to elected officials covered by Section 752.053(a)(1).
We must begin by construing the state statute. United States v. Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838 (2008) (“[I]t is impossible to determine whether a statute reaches too far without first knowing what the statute covers.”). Texas urges this court to adopt a narrowing construction that interprets “endorse” to mean “sanction” and limits the verb’s scope to official speech.
Federal courts must accept a reasonable narrowing construction of a state law to preserve its constitutionality. See Voting for Am., Inc., v. Steen, 732 F.3d 382, 396 (5th Cir. 2013). However, a court has no authority to “‘rewrite a . . . law to conform it to constitutional requirements,’ for doing so would constitute a ‘serious invasion of the legislative domain.’” United States v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 1592 (2010) (citations omitted). A statute must be “readily susceptible” to a construction for a court to adopt it. Id.; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-17, 95 S. Ct. 2268, 2276 (1975) (refusing to adopt a limiting construction because “the ordinance by its plain terms [was] not easily susceptible of” one).
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No. 17-50762 The verb “endorse” literally means “to write on the back of (a document),”13 but there is no question that the figurative meaning of the verb includes the broad significance the district court ascribed to it.14 As shown by the district court’s survey of dictionary definitions, the most common meaning of “endorse” encompasses “a recommendation, suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is generally conveyed openly or publicly.” Texas is also correct, however, that the verb “sanction” is a common definition for “endorse.”15 And the verb “sanction” denotes the use of official authority to ratify or authorize.16 The question here is not just whether “endorse” is susceptible to the meaning that Texas proposes, but whether it is reasonable to limit the word accordingly. For several reasons, we do not find the “endorse” prohibition readily susceptible to this limitation. First, the noscitur a sociis canon does not

13 See The Oxford English Dictionary (online ed. 2017), available at http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid.

14 See The American Heritage Dictionary of the English Language (online ed. 2017) (defining “endorse” as “[t]o express approval of . . . especially by public statement”), available at https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College Dictionary (online ed. 2017) (offering “to give approval to; support” as possible definitions of endorse), available at http://www.yourdictionary.com/endorse.

15 See The Oxford English Dictionary (online ed. 2017) (defining the figurative sense

of

“endorse”

as

“[t]o

confirm,

sanction”),

available

at

http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid;

The American Heritage Dictionary of the English Language (online ed. 2017) (listing

“sanction” as a secondary meaning of “endorse”), available at

https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College

Dictionary (online ed. 2017) (same), available at http://www.yourdictionary.com/endorse.

16 See The American Heritage Dictionary (online ed. 2017) (defining “sanction” as “[t]o

give

official

authorization

or

approval

to”),

available

at

https://ahdictionary.com/word/search.html?q=sanction; The Oxford English Dictionary

(online ed. 2017) (defining “sanction” as “[t]o ratify or confirm by sanction or solemn

enactment; to invest with legal or sovereign authority; to make valid or binding”), available

at

http://www.oed.com/view/Entry/170491?rskey=VpyOmv&result=2&isAdvanced=false#eid.

20

Case: 17-50762 Document: 00514384919 Page: 21 Date Filed: 03/13/2018
No. 17-50762 support the state’s argument. This canon explains that, “[w]hen several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.” See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 195 (2012). This canon does not imbue words with unnatural meaning, but serves “rather to limit a general term to a subset of all the things or actions that it covers.” See id. at 196. For instance, in United States v. Williams, the Supreme Court relied on this canon to find that a statute only penalized “speech that accompanies or seeks to induce a transfer of child pornography.” 553 U.S. 285, 294, 128 S. Ct. 1830, 1839 (2008). In Williams, the relevant list of verbs was “advertises, promotes, presents, distributes, or solicits.” Id. The Court recognized that the verbs “promotes” and “presents” were “susceptible of multiple and wide-ranging meanings,” which would, like a broad construction of “endorse,” cover much protected speech. Id. To avoid the First Amendment problem, the Court used noscitur a sociis to narrow “promotes” and “presents” to their “transactional connotation.” Id.
Using noscitur a sociis here to limit “endorse” to the meaning it shares with “adopt” and “enforce” renders “endorse” either superfluous or meaningless. To the extent that all three verbs connote the exercise of government authority to develop and administer policy, “endorse” (as interpreted by the state to mean “officially sanction”) adds nothing of substance to the prohibitions against an entity’s actually “adopting” or “enforcing” policies at odds with SB4. Without putting action behind his “sanction,” an official who merely “endorses” impermissible policies has not “adopted” or “enforced” them, no matter the amount of speech he has devoted to that end. The official’s “sanction” is toothless. Alternatively, if an official’s “sanction” is functionally equivalent to “adopting” or “enforcing” impermissible policies, the
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No. 17-50762 word becomes wholly redundant. There is no generic context, like the “transactional context” noted in Williams, in which “endorse,” read to mean “sanction,” conveys additional meaning to this provision.
Second, that the clause following “endorse” prohibits the endorsement of “a policy under which the entity or department limits the enforcement of immigration laws” does not support the state’s narrow interpretation of “endorse.” See Tex. Gov’t Code § 752.053(a)(1) (emphasis added). Granted, under this qualifying phrase, SB4 does not regulate any statements approving hypothetical policies or the policies of any other entity of government. But as we have explained, the “endorsement” as “sanction” of policies contrary to SB4, without accompanying action to “adopt” or “enforce” such policies, is “mere” core political speech. This provision’s qualifying language accentuates the overlap between “official” and “individual” speech that the state erroneously attempts to deny. As the plaintiffs point out, under the state’s rationale, a local sheriff may violate SB4 by answering questions at a local town hall meeting or press conference or testifying to a legislative committee.17
In sum, we are unpersuaded that, taken in context, “endorse” “readily” bears the restrictive meaning urged by the state. As written, SB4 proscribes core political speech when such “endorsement” is uttered by elected officials. The state cannot regulate the substance of elected officials’ speech under the First Amendment without passing the strict scrutiny test. See Williams-Yulee v. The Fla. Bar, 135 S. Ct. 1656, 1665-66 (2015). The state concedes that if
17 The plaintiffs are incorrect that related provisions of SB4 bear on the First Amendment argument. Exemptions from SB4 when an officer works off-duty for an exempt entity like a charter school, see, e.g., Tex. Gov’t Code § 752.052, simply determine whether SB4 applies at all, not what speech it covers. Nor is it significant that “a statement by [a] public officer” may constitute evidence that an entity has violated SB4. See id. § 752.0565(b). It is unremarkable that “statements” could be probative of a local entity’s policy or pattern or practice of limiting immigration enforcement.
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No. 17-50762 “endorse” bears its most common and natural meaning, this provision does not pass constitutional muster as applied to elected officials. In light of the infringement of this provision on elected officials’ core political speech, the state’s concession necessarily applies to the elements required for injunctive relief. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295-97 (5th Cir. 2012).
This conclusion does not, however, insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as “government speech.” See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline”). In the context of government speech, a state may endorse a specific viewpoint and require government agents to do the same. See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2253 (2015) (rejecting viewpoint discrimination claim after finding that the specialty license plates at issue constituted government speech).
Such issues are not properly before us because the appellees do not represent the public employees putatively covered by Garcetti and the government speech doctrine. The Supreme Court has directed that “the lawfulness of the particular application of the law should ordinarily be decided first” before mounting “gratuitous wholesale attacks” under the overbreadth doctrine. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S. Ct. 3028, 3037 (1989). Accordingly, we “resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record
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No. 17-50762 before us imperatively requires.” Serafine v. Branaman, 810 F.3d 354, 363 (5th Cir. 2016) (quoting Street v. New York, 394 U.S. 576, 581, 89 S. Ct. 1354, 1360 (1969)).
Consistently with but more narrowly than the district court, we affirm the district court’s injunction against enforcement of Section 752.053(a)(1) only as it prohibits elected officials from “endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” III. The ICE-Detainer Mandate
Article 2.251(a) provides that law enforcement agencies “that ha[ve] custody of a person subject to an immigration detainer request . . . shall: (1) comply with, honor, and fulfill any request made in the detainer request . . . and (2) inform the person that the person is being held pursuant to” that request. Tex. Code Crim. Proc. art. 2.251(a)(1)-(2). Law enforcement agencies are exempt from the duty imposed by subsection (a) when the individual in custody “has provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver’s license or similar government-issued identification.” Id. art. 2.251(b). The district court held that the ICE-detainer mandate violates the Fourth Amendment because it is not reasonable for local officials to detain persons based on probable cause of removability.
Before reviewing the merits of this issue, we are obliged to address the threshold question whether the plaintiffs have standing to challenge the ICEdetainer mandate. Standing in federal court requires that the plaintiffs “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992)).
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No. 17-50762 The plaintiffs contend that they satisfy these requirements because the ICEdetainer mandate would force plaintiff local government officials to choose between violating their oaths of office to defend the U.S. Constitution and facing criminal penalties and expulsion from office. We agree. There is no question that the second and third prongs of the standing analysis are met. The injury claimed by the plaintiffs stems directly from Texas’s enactment of the ICE-detainer mandate. Judicial invalidation of the mandate would obviate the plaintiffs’ concerns. Accordingly, we need assess only whether the plaintiffs have alleged a sufficient injury.
In Board of Education v. Allen, the Supreme Court concluded that school board officials had standing to challenge a state statute requiring school districts to purchase and loan textbooks to students enrolled in parochial schools. 392 U.S. 236, 241 n.5, 88 S. Ct. 1923, 1925 (1968). The Court explained, “[b]elieving [state law] to be unconstitutional, [the plaintiffs] are in the position of having to choose between violating their oath and taking a step—refusal to comply with [state law]—that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts.” Id. This court’s decisions applying Allen have explained that it is not enough for public officials to assert as an “injury” the violation of their oaths of office where no adverse consequences would occur. See, e.g., Finch v. Miss. State Med. Ass’n, 585 F.2d 765, 774-75 (5th Cir. 1978) (observing that the plaintiff Governor was “certainly in no danger of expulsion [from office] at the hands of the defendant professional associations” and that “there is no allegation that his office is in any danger of a loss of funds . . . if the Governor refuses to comply with the statute”); Donelon v. La. Div. of Admin. Law, 522 F.3d 564, 567 (5th Cir. 2008) (denying standing for Louisiana Commissioner of Insurance); Crane v. Johnson, 783 F.3d 244, 253 (5th Cir.
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No. 17-50762 2015) (“Under the Fifth Circuit precedent, [ICE agents’] violation of [ ] oath alone is an insufficient injury to support standing.”).
In this case, plaintiff government officials have a claim to standing analogous to the school board members in Allen. The plaintiff government officials face criminal penalties in addition to civil fines and expulsion from office if they disobey the ICE-detainer mandate. And if they comply with the allegedly unconstitutional mandate, the violation of their oaths is not the only putative injury; any ICE-detainer mandate enforcement actions that knowingly violate detainees’ Fourth Amendment rights could expose the plaintiffs to damage suits.18 The plaintiff government officials have a sufficient “personal stake” to press their claim based on alleged violation of their oaths and potentially severe personal consequences, and we may proceed to the merits. See Donelon, 522 F.3d at 568.
The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV.19 A constitutional seizure of a criminal defendant must generally be supported by probable cause. Nevertheless, this case does not involve whether probable cause existed in a particular instance: it is a pre-enforcement facial challenge. Such a challenge
18 It is true that SB4 provides the possibility of indemnification for certain civil lawsuits arising from good-faith compliance with the ICE-detainer mandate. See Tex. Gov’t Code § 402.0241. But this possibility is cold comfort for the plaintiffs when the statute leaves it to Texas to determine whether an entity has engaged in “good-faith compliance” warranting indemnification. See id. § 402.0241(b)(2).
19 We pretermit the question whether the Fourth Amendment even applies to many aliens subject to ICE-detainer requests. See Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014) (holding that the “entry fiction” applies to preclude illegal aliens’ Fourth Amendment detention claims); United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (noting that the Supreme Court has never “held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally”); but see Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624-25 (5th Cir. 2006) (holding that an alien with substantial connections to the United States “may bring a Bivens claim for unlawful arrest and the excessive use of force under the Fourth Amendment”).
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No. 17-50762 is “the most difficult . . . to mount successfully.” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). Bringing a facial challenge, it is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate will often cause Fourth Amendment violations. They must establish that the mandate “is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008).
The plaintiffs suggest that the Supreme Court’s recent decision in City of Los Angeles v. Patel, has lowered the bar for facial Fourth Amendment challenges, but they misconstrue the case. 135 S. Ct. 2443 (2015). Patel rejected the contention that facial Fourth Amendment challenges are “categorically barred or especially disfavored.” Id. at 2449. The Court did not overrule the Salerno standard but merely clarified that, under the unconstitutional-in-all-of-its-applications analysis, a court must “consider[] only applications of the [challenged] statute in which it actually authorizes or prohibits conduct.” Id. at 2451 (emphasis added). In other words, a facial challenge does not fail merely because exigent circumstances or a warrant could independently justify some applications of the challenged statute. Id. Thus, the plaintiffs must establish that every seizure authorized by the ICEdetainer mandate violates the Fourth Amendment. They have not satisfied this exacting standard.
It is undisputed that federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability. Abel v. United States, 362 U.S. 217, 233-34, 80 S. Ct. 683, 694 (1960). It is also evident that current ICE policy requires the Form I-247A to be accompanied by one of two such administrative warrants. On the form, an ICE officer
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No. 17-50762 certifies that probable cause of removability exists. Thus, an ICE-detainer request evidences probable cause of removability in every instance. 20
Under the collective-knowledge doctrine, moreover, the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability. See United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017) (“Under the collective knowledge doctrine, an officer initiating the stop or conducting the search need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause, so long as he is acting at the request of those who have the necessary information.”). Compliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself provides the required “communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
Nevertheless, the plaintiffs make several arguments why this cooperation constitutes a per se violation of the Fourth Amendment. First, they defend the district court’s holding that state and local officers may only arrest individuals if there is probable cause of criminality. The district court erred. Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed. See Cantrell v. City of Murphy, 666 F.3d 911, 923 (5th Cir. 2012) (state statute authorizing seizure of mentally ill); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (state statute authorizing seizure
20 The plaintiffs’ suggestion that “an ICE agent may indicate simply that DHS intends to assume custody of the detainee to ‘make an admissibility determination’” misrepresents Form I-247A. The box they mention applies only when DHS has transferred an alien to the local authority’s custody for a proceeding or investigation and thus “intends to resume custody of the alien to complete processing and/or make an admissibility determination.” See ICE Form I-247A, available at https://perma.cc/RH4C-5D8Q.
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No. 17-50762 of those seriously ill and in danger of hurting themselves); Commonwealth v. O’Connor, 546 N.E.2d 336, 341 (Mass. 1989) (state statute authorizing seizure of incapacitated persons); In re Marrhonda G., 613 N.E.2d 568, 569 (N.Y. 1993) (state statute authorizing seizure of juvenile runaways). The district court’s contention is also patently at odds with immigration law and procedure; civil removal proceedings necessarily contemplate detention absent proof of criminality. See, e.g, Demore v. Kim, 538 U.S. 510, 531, 123 S. Ct. 1708, 172122 (2003) (upholding no-bail civil immigration detention under a Fifth Amendment Due Process challenge).21
The plaintiffs also argue that there is no state law authorizing local officers to conduct seizures based on probable cause of removability. They cite Lunn v. Commonwealth, in which the Supreme Judicial Court of Massachusetts held that state officers had no state-law authority to carry out detention requests made in civil immigration detainers. 78 N.E.3d 1143, 115860 (Mass. 2017). Lunn is easily distinguishable. Here the ICE-detainer mandate itself authorizes and requires state officers to carry out federal detention requests.
The plaintiffs next contend that the Fourth Amendment requirement is not satisfied when officers must unthinkingly accept an agency’s conclusions without taking into account facts tending to dissipate probable cause. Subsection (b) of article 2.251 allegedly fails to cure this defect because it forces local officers to make removal-status determinations, running afoul of Arizona and Farmers Branch. This argument proves too much. Implicitly, the plaintiffs’ argument would invalidate any compliance with ICE detainers:
21 For these reasons, we also disavow any district court decisions that have suggested the Fourth Amendment requires probable cause of criminality in the immigration context. See Mercado v. Dallas Cty., 229 F.Supp.3d 501, 512-13 (N.D. Tex. 2017); Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017).
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No. 17-50762 officers must make their own removal-status determinations to satisfy the Fourth Amendment but officers cannot make such determinations under Arizona and Farmers Branch.
The plaintiffs’ argument misconstrues the relevant precedents. Neither Arizona nor Farmers Branch undermines subsection (b). Arizona denied state officers the power to unilaterally make removability determinations because “[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States” and such decisions “touch on foreign relations and must be made with one voice.” Arizona, 567 U.S. at 409, 132 S. Ct. at 2506-07. Likewise, Farmers Branch invalidated an ordinance requiring building inspectors to conduct their own “unlawful presence” inquiries. 726 F.3d at 532. Both cases involved unilateral status-determinations absent federal direction. But subsection (b) operates only when there is already federal direction—namely, an ICEdetainer request—and the subsection merely limits the scope of the officer’s duty to comply with that request. It remains the ICE agent who makes the underlying removability determination. 22
The plaintiffs are also wrong to suggest that the ICE-detainer mandate requires officers to ignore facts that negate probable cause. Subsection (b) should cover the majority of cases where facts negate probable cause: indeed, it is difficult to imagine what facts other than valid forms of identification would conclusively negate ICE’s probable cause determination.23 Assuming
22 Because we refuse to interpret subsection (b) as authorizing unilateral removability determinations, we also reject the plaintiffs’ argument that the ICE-detainer mandate is conflict preempted. In doing so, we note that Section 1357(g)(10)(B) expressly mentions cooperation in “identification” and “detention.”
23 It is important to remember that an adult alien commits a federal crime if he fails to “at all times carry with him and have in his personal possession any certificate of alien
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No. 17-50762 arguendo that there could be such facts, Texas and the United States as amicus dispute that local officers would be required to ignore them. They argue that the verbs “[c]omply with, honor, and fulfill” require cooperation—not blind obedience. This seems reasonable given the assumption that ICE should have no interest in detaining aliens when local officials communicate that the original determination was flawed. Nevertheless, even if the mandate could hypothetically cause a violation, this possibility is not enough to substantiate a facial challenge.
Likewise, none of the cases the plaintiffs cite indicates that the detainer mandate is facially invalid. In Santos v. Frederick County Board of Commissioners, the Fourth Circuit held that, “absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.” 725 F.3d 451, 465 (4th Cir. 2013). Thus, the seizure in Santos violated the Fourth Amendment because the officers detained Santos “before dispatch confirmed with ICE that the warrant was active.” Id. at 466. Similarly, in Melendres v. Arpaio, the Ninth Circuit rejected unilateral detention “based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States.” 695 F.3d 990, 1000 (9th Cir. 2012). As in Santos, there was no federal request for assistance before the seizure. Id. Therefore, these decisions do not affect the ICE-detainer mandate, which always requires a predicate federal request before local officers may detain aliens for the additional 48 hours. The validity of this sort of compliance has been affirmed by at least one circuit. See United States v. Ovando-Garzo, 752 F.3d 1161, 1164
registration or alien registration receipt card” evidencing his lawful status. 8 U.S.C. § 1304(e).
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No. 17-50762 (8th Cir. 2014) (finding the claim that a state officer could not detain an alien on behalf of federal officers “meritless”).
Last, the plaintiffs argue that the mandate is facially invalid because it does not expressly require a probable cause determination. ICE policy may change, the plaintiffs argue. If that happens, compliance with subsequent detainer requests may violate the Fourth Amendment. In our view, this argument—that ICE policy may change—confirms that facial relief is inappropriate. It is true that ICE might change its policy such that compliance with ICE’s requests would violate the Fourth Amendment. It is also true that, under the current scheme, seizures may occur where probable cause was lacking. But this is no basis for facial relief under Salerno and Patel. If ICE policy changes or if violations occur, the proper mechanism is an as-applied, not a facial challenge. IV. “Materially Limits”
Section 752.053(a)(1)-(2) forbids any “policy” or “pattern or practice” that “prohibits or materially limits” the enforcement of the immigration laws. See Tex. Gov’t Code § 752.053(a)(1)-(2). The plaintiffs contend that the phrase “materially limits” is unconstitutionally vague on its face. In United States v. Gonzalez-Longoria, this court affirmed the exacting standard for establishing facial vagueness: “When a provision is so vague that it specifies ‘no standard of conduct . . . at all,’ then the provision ‘simply has no core,’ and will be vague as applied to anyone—that is, it will be facially vague.” 831 F.3d 670, 675 (5th Cir. 2016) (en banc) (quoting Smith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249 (1974)). The plaintiffs have not established that “materially limits” is facially vague under this standard.
Gonzalez-Longoria addressed the significance of Johnson v. United States, which had recently invalidated the residual clause of the Armed Career Criminal Act as unconstitutionally vague. 135 S. Ct. 2551 (2015). In Johnson,
32

Case: 17-50762 Document: 00514384919 Page: 33 Date Filed: 03/13/2018
No. 17-50762 the Court concluded that a facial vagueness challenge could succeed even if some conduct is clearly covered by a statute’s prohibition. Id. at 2561; see also United States v. Westbrooks, 858 F.3d 317, 325 (5th Cir. 2017). In GonzalezLongoria, this court adopted a “narrow[]” reading of Johnson’s holding as motivated by “a long-considered ill-ease and eventual repudiation of the categorical approach in the specific context of the Armed Career Criminal Act’s residual clause.” Gonzalez-Longoria, 831 F.3d at 676. Given that GonzalezLongoria construed Johnson narrowly and affirmed a stringent standard for facial vagueness challenges, it is telling that neither the district court nor any of the plaintiffs mention this binding decision. As their omission suggests, “materially limits” is not vague under Gonzalez-Longoria.
Although the plaintiffs argue that context exacerbates the vagueness of “materially limits,” the opposite is true. The status-inquiry, informationsharing, and assistance-cooperation provisions of Section 752.053(b)(1)-(3) provide specific examples of what conduct local entities cannot limit. Thus, if a policy expressly limits one of these activities, then the question for a court is whether such a limitation is “material.” The inclusion of this qualifier makes the challenged phrase more definite, not less, and materiality standards are routine in the law. See, e.g., Fed. R. Evid. 807(a)(2). Materiality is a familiar component of fraud claims, and the full phrase “materially limit” appears in federal securities law, 15 U.S.C. § 77d-1(b)(1)(H)(i), and in the ABA model rules of professional conduct. Model R. of Prof’l. Conduct 1.7(a)(2), 1.10(a)(1). Materiality is not a vague concept, especially to actors subject to these provisions who are law enforcement or government officers.
The plaintiffs contend that Texas cannot specify any applications of the “materially limits” provision that are not flat prohibitions—and thus already covered by the word “prohibits.” We disagree. Texas identifies the Maverick County Sheriff’s Office policy of refusing to “participate or cooperate in the
33

Case: 17-50762 Document: 00514384919 Page: 34 Date Filed: 03/13/2018
No. 17-50762 arrests of individuals for civil immigration violations.” This policy does not actually flatly prohibit cooperation; it limits the circumstances in which cooperation is permissible: criminal but not civil violations. Texas also cites El Cenizo’s Mayor, who contended that the city’s policy “limits the situations in which [city] . . . officials engage in immigration enforcement or collect and disseminate such information.” This, too, seems like a policy best characterized as limiting and not prohibiting the enforcement of immigration laws. Almost any limitation could be recharacterized as a partial prohibition. That is likely why SB4 includes both terms. Otherwise, supporters of the policies just described could argue that their policies limited but did not actually prohibit immigration enforcement. Thus, the putative redundancy between “prohibits” and “materially limits” likely reflects “a sense of belt-andsuspenders caution” on the part of the legislature. King v. Burwell, 135 S. Ct. 2480, 2498 (2015) (Scalia, J., dissenting). It is no reason to facially invalidate the phrase.
Texas also proposes several narrowing constructions. First, Texas suggests that a material limit must concern “the enforcement of immigration laws” and so policies relating to “general matters like overtime and patrolling locations” would not be covered. Under this limitation, Texas argues, SB4 will “not prohibit immigration-neutral local policies regarding bona fide resource allocation.” Second, Texas states that a “policy cannot ‘materially limit’ immigration-law enforcement if it prohibits actions that the locality already lacks the power to lawfully perform.”
These limitations are reasonable. But the nature of the plaintiffs’ lawsuit—a facial, pre-enforcement challenge—makes us unwilling to adopt limiting constructions that are not strictly necessary to preserve the constitutionality of a statute. In general, as-applied challenges brought in post-enforcement proceedings are “the basic building blocks of constitutional
34

Case: 17-50762 Document: 00514384919 Page: 35 Date Filed: 03/13/2018
No. 17-50762 adjudication.” See Gonzales v. Carhart, 550 U.S. 124, 168, 127 S. Ct. 1610, 1639 (2007) (citations omitted). Here, it is helpful to consider the many years and judicial decisions leading to the Supreme Court’s invalidation of the residual clause in Johnson: “Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.” Johnson, 135 S. Ct. at 2560. In contrast to the extreme circumstances in Johnson, the posture of this case calls for judicial restraint. See, e.g., Wash. State Grange, 552 U.S. at 450-51, 128 S. Ct. at 1191 (recognizing that pre-enforcement facial challenges are “disfavored” because they “often rest on speculation” and “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution”). For these reasons, we conclude that the “materially limits” phrase has a clear core and is not void for vagueness. V. Commandeering Challenge
The plaintiffs raise an argument on appeal that was not presented to the district court. They begin by pointing out that the Tenth Amendment prevents the Federal Government from forcing local governments to enforce federal immigration laws. Then they state that the preemption doctrine prevents Texas from passing direct immigration-enforcement regulation. From these premises, the plaintiffs argue that, under the Texas Constitution, the state cannot preempt cities’ home-rule authority without passing the sort of direct immigration regulation that would be preempted by federal law.
This argument is waived because it was not adequately raised below. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005). Even if it were not waived, this argument merely recasts a state-law home-rule-city argument as a hybrid Tenth Amendment and preemption claim. The plaintiffs’ briefing indicates that this argument stems from questions asked during oral
35

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No. 17-50762 argument on Texas’s motion to stay. The flaw in the argument is that Texas law is clear: “The Texas Constitution prohibits a city from acting in a manner inconsistent with the general laws of the state. Thus, the legislature may, by general law, withdraw a particular subject from a home rule city’s domain.” Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex. 1991) (citations omitted). For better or for worse, Texas can “commandeer” its municipalities in this way.
CONCLUSION The plaintiffs have not made a showing that they are likely to succeed on the merits of any of their constitutional claims except as to the enforcement of Tex. Gov’t Code § 752.053(a)(1)’s “endorse” provision against elected officials. The foregoing discussion demonstrates there is no merit in their remaining arguments, and none of the other challenged provisions of SB4 facially violate the Constitution. Accordingly, we AFFIRM in part the district court’s preliminary injunction, VACATE in large part and remand with instructions to DISMISS the vacated injunction provisions.
36

Case: 17-50762 Document: 00514384925 Page: 1 Date Filed: 03/13/2018
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BILL OF COSTS

Print Form

NOTE: The Bill of Costs is due in this office within 14 days from the date of the opinion, See FED. R. APP. P. & 5TH CIR. R. 39. Untimely bills of costs must be accompanied by a separate motion to file out of time, which the court may deny.

_______________________________________________ v. __________________________________________ No. _____________________

The Clerk is requested to tax the following costs against: _________________________________________________________________________________________

COSTS TAXABLE UNDER Fed. R. App. P. & 5th Cir. R. 39
Docket Fee ($500.00) Appendix or Record Excerpts Appellant’s Brief Appellee’s Brief Appellant’s Reply Brief Other:

REQUESTED No. of Copies Pages Per Copy Cost per Page* Total Cost

ALLOWED (If different from amount requested)

No. of Documents

Pages per Document

Cost per Page* Total Cost

Total $ ________________

Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.

State of County of _________________________________________________

LYLE W.CAYCE, CLERK
By ____________________________________________ Deputy Clerk

I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.

*SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS

_____________________________________________________________________ (Signature)
Attorney for __________________________________________

Case: 17-50762 Document: 00514384925 Page: 2 Date Filed: 03/13/2018
FIFTH CIRCUIT RULE 39
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover, index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5TH CIR. R. 32.2.3that mandates that briefs must lie reasonably flat when open shall be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
39.2 Nonrecovery of Mailing and Commercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.3 Time for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in FED. R. APP. P. 39(D). See 5TH CIR. R. 26.1.

FED. R. APP. P. 39.

COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.

©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.

(d) Bill of costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.

(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Case: 17-50762 Document: 00514384926 Page: 1 Date Filed: 03/13/2018

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

March 13, 2018

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 17-50762

City of El Cenizo, Texas, et al v. State of Texas, et al USDC No. 5:17-CV-404 USDC No. 5:17-CV-459 USDC No. 5:17-CV-489

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that

Case: 17-50762 Document: 00514384926 Page: 2 Date Filed: 03/13/2018
this information was given to your client, within the body of your motion to withdraw as counsel.
The judgment entered provides that appellants pay to appellees the costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________ Erica A. Benoit, Deputy Clerk
Enclosure(s)
Mr. Chirag Gopal Badlani Mr. J. Campbell Barker Ms. Jo Anne Bernal Ms. Lisa Schiavo Blatt Mr. Nicolas Chavez Mr. Christopher Coppola Mr. Ari Cuenin Mr. Jeffrey Dana Mr. Andre M. Davis Ms. Eleanor M. Dilkes Mr. David Wilson Dummer Mr. Andrew James Ehrlich Ms. Laurie R. Eiserloh Mr. Javier Espinoza Mr. Charles S. Estee Mr. E. Martin Estrada Mr. Luis Orlando Figueroa Mr. Leon Fresco Ms. Yolanda Cornejo Garcia Mr. Jose Garza Mr. Lee P. Gelernt Ms. Katherine E. M. Goettel Honorable Jamie Gorelick Mr. Jon Marshall Greenbaum Mr. David J. Hacker Mr. John Charles Hernandez Mr. Michael Meriwether Hethmon Mr. Renea Hicks Mr. Lonny Jacob Hoffman Mr. Omar C. Jadwat Mr. Michael Jenkins Mr. Stephen B. Kang Mr. Scott A. Keller Ms. Deborah Lynne Klein Mr. Timothy Robert Labadie Mr. Noah Adam Levine Mr. Ronald Charles Lewis Mr. James Edward Maloney Mr. Grant Bellows Martinez Mr. Darren Lee McCarty Ms. Mary B. McCord

Case: 17-50762 Document: 00514384926 Page: 3 Date Filed: 03/13/2018
Ms. Lynnette Miner Mr. Michael Patrick Moran Ms. Celina Y. Moreno Ms. Elizabeth Baker Murrill Ms. Kavita Narayan Mr. Anthony J. Nelson Mr. David Austin Robert Nimocks Mr. Patrick G. O'Brien Mr. Efren Carlos Olivares Mr. Kevin D. Pagan Ms. Barbara J. Parker Ms. Collyn Ann Peddie Ms. Nina Perales Mr. Noah Barnett Peters Ms. Erica Peterson Ms. Olivia Radin Ms. Tracy Reeve Mr. Erez Reuveni Mr. Rolando Leo Rios I Ms. Stacy Jordan Rodriguez Mr. Cristian Rosas-Grillet Ms. Barbara Elaine Rosenberg Mr. Thomas Andrew Saenz Mr. Edgar Saldivar Mr. John Paul Salmon Mr. Jose F. Sanchez Mr. Dan Satterberg Mr. Andre Segura Mr. Michael Siegel Mr. Edward N. Siskel Mr. Carlos Ramon Soltero Mr. Scott Stewart Mr. Cory David Szczepanik Ms. Sherine Elizabeth Thomas Mr. Charles W. Thompson Jr. Ms. Laura S. Trice Mr. Luis Roberto Vera Jr. Mr. John K. Warren Ms. Robin Eve Wechkin Mr. Eric A. White Mr. Brent Scott Wible Ms. Allie Wilson Mr. Richard Paul Yetter Ms. Donna R. Ziegler

 
 Case: 17-50762 Document: 00514463217 Page: 1 Date Filed: 05/08/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 17-50762

May 8, 2018 Lyle W. Cayce

Clerk

CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY,

Plaintiffs - Appellees Cross-Appellants

CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; THE CITY OF HOUSTON,

Intervenors - Plaintiffs - Appellees Cross-Appellants v.

STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General,

Defendants - Appellants Cross-Appellees

------------------------------------------------------------------------------------------------------------
EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; JO ANNE BERNAL, El Paso County Attorney in her Official Capacity; MOVE San Antonio,
Plaintiffs - Appellees Cross-Appellants
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS,
1

Case: 17-50762 Document: 00514463217 Page: 2 Date Filed: 05/08/2018
No. 17-50762 Intervenor - Plaintiff - Appellee Cross-Appellant v. STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety, Defendants - Appellants Cross-Appellees -----------------------------------------------------------------------------------------------------------CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT; CITY OF EL PASO,
Plaintiffs - Appellees Cross-Appellants CITY OF AUSTIN,
Intervenor Plaintiff - Appellees Cross-Appellants
v. STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas,
Defendants - Appellants Cross-Appellees
Appeals from the United States District Court for the Western District of Texas
Before JONES and SMITH, Circuit Judges. EDITH H. JONES, Circuit Judge:
2

Case: 17-50762 Document: 00514463217 Page: 3 Date Filed: 05/08/2018
We withdraw our prior opinion of March 13, 2018, City of El Cenizo v. Texas, 885 F.3d 332 (5th Cir. 2018), and substitute the following, the purpose of which is to eliminate reference to United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), given that decision’s abrogation by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018).1
Texas cities, counties, and local officials challenge Senate Bill 4 (“SB4”), a Texas law that forbids “sanctuary city” policies throughout the state. SB4 prohibits local authorities from limiting their cooperation with federal immigration enforcement, and it requires local officers to comply with Immigration and Customs Enforcement (“ICE”) detainer requests. In their pre-enforcement lawsuit, the plaintiffs alleged a battery of constitutional violations: (I) SB4 is preempted by federal immigration law, (II) SB4’s “endorse” prohibition violates the First and Fourteenth Amendments, (III) SB4’s ICE-detainer mandate violates the Fourth Amendment, and (IV) SB4’s phrase “materially limits” is unconstitutionally vague under the Fourteenth Amendment. The district court issued a preliminary injunction, enjoining several of the law’s provisions. Texas appeals the injunction, and the plaintiffs cross-appeal the district court’s refusal to issue a broader injunction. With one exception, SB4’s provisions do not, on their face, violate the Constitution. For the following reasons, we uphold the statute in its entirety except for the application of the “endorsement” prohibition, Tex. Gov’t Code § 752.053(a)(1), to elected officials.
1 Judge Edward Prado, a member of the original panel in this case, retired from the Court on April 2, 2018, and therefore did not participate in this decision. This matter is decided by a quorum. 28 U.S.C. § 46(d).
3

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No. 17-50762 BACKGROUND I. Senate Bill 4 In May 2017, the Texas Legislature enacted Senate Bill 4 to prohibit sanctuary city policies. The law imposes duties on certain state officials and provides civil and criminal liability for violations of those duties. Three parts of the law are critical to this case: (A) the immigration-enforcement provisions, (B) the ICE-detainer mandate, and (C) the penalty provisions. A. Immigration-Enforcement Provisions As codified at Texas Government Code § 752.053(a)-(b), SB4 forbids local entities from limiting the enforcement of federal immigration law. Subsections (a)(1) and (a)(2) of Section 752.053 provide broad prohibitions. Under subsection (a)(1), a local entity may not “adopt, enforce, or endorse a policy under which [it] prohibits or materially limits” immigration enforcement. Id. § 752.053(a)(1). After subsection (a)(1) deals with anticooperation “policies,” subsection (a)(2) further prohibits any “pattern or practice” that similarly frustrates enforcement. Id. § 752.053(a)(2). Following the general prohibitions in (a)(1) and (a)(2), subsection (b) enumerates concrete examples of immigration-enforcement activities that a local entity may not “prohibit or materially limit.” Id. § 752.053(b). These include (b)(1) “inquiring into the immigration status” of lawfully detained individuals, (b)(2) sharing immigration-status information with federal agencies, and (b)(3) “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” Id. § 752.053(b)(1)-(3).2
2 For convenience, these three provisions will be referred to as the “status-inquiry,” “information-sharing,” and “assistance-cooperation” provisions.
4

Case: 17-50762 Document: 00514463217 Page: 5 Date Filed: 05/08/2018
No. 17-50762 The prohibitions in Section 752.053 apply broadly to any “local entity or campus police department.” Id. § 752.053(a)-(c). SB4 defines “local entity” to include the governing bodies of counties and municipalities as well as officers or employees of those authorities, including “a sheriff, municipal police department, municipal attorney,[ ] county attorney[,] . . . district attorney or criminal district attorney.” See id. § 752.051(5)(A)-(C). But SB4 excludes hospitals, school districts, and certain community centers—as well as officers employed by these institutions—from the law’s requirements. See id. § 752.052(a)-(f). B. ICE-detainer Mandate As codified at Texas Code of Criminal Procedure article 2.251, SB4’s ICEdetainer mandate requires law-enforcement agencies to comply with detainer requests submitted by ICE. An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security (“DHS”) as soon as practicable before an alien is released and (2) to maintain custody of the alien for up to 48 hours beyond the preexisting release date so that DHS may assume custody.3 As of April 2017, ICE must make this request using Form I-247A, which must be accompanied by a signed administrative warrant. Form I-247A states that DHS has determined that there is probable cause that the subject of the request is a removable alien, and ICE officers check one of four boxes on the form to indicate the basis for probable cause. 4
3 See U.S. Immigration and Customs Enforcement, Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at https://perma.cc/T6FJ-FXL3.
4 See U.S. Department of Homeland Security, Immigration Detainer – Notice of Action, DHS Form I-247A (3/17), available at https://perma.cc/RH4C-5D8Q.
5

Case: 17-50762 Document: 00514463217 Page: 6 Date Filed: 05/08/2018
No. 17-50762 SB4’s ICE-detainer mandate applies whenever “[a] law enforcement agency [ ] has custody of a person subject to” an ICE detainer. Tex. Code Crim. Proc. art. 2.251(a). Under subsection (a), the mandate requires law enforcement agencies to “comply with, honor, and fulfill” ICE’s requests. Id. It also requires that the individual in custody be informed he “is being held pursuant to” an ICE detainer. Id. art. 2.251(a)(2). Subsection (b) provides a lone exception to the detainer mandate: law enforcement agencies need not comply with detainers if shown “proof that the person is a citizen of the United States or . . . has lawful immigration status.” Id. art. 2.251(b). Subsection (b) states that such “proof” could include a Texas driver’s license or similar government-issued ID. Id. art. 2.251(b). C. Penalty Provisions SB4 is enforced through civil and criminal penalties by Texas’s Attorney General. Private citizens may file complaints with the Attorney General, alleging by sworn statement that a local entity is violating the enforcement provisions. See Tex. Gov’t Code § 752.055(a). Upon determining that such a complaint is valid, the Attorney General may file suit in state court to enforce the law. See id. § 752.055(b). If a court finds there has been a violation, local entities may be subject to fines of $1,000 to $1,500 for a first violation and $25,000 to $25,500 for subsequent ones, with each day of continuing violation constituting a separate violation. See id. § 752.056(a)-(b). If the Attorney General is presented with evidence that a public officer has violated the enforcement provisions, SB4 requires the Attorney General to file an enforcement action. See id. § 752.0565(b). Public officers found guilty of violating the law are subject to removal from office. See id. § 752.0565(c). SB4 makes certain officials’ failure to comply with SB4’s ICE-detainer provision a misdemeanor. See Tex. Penal Code § 39.07(a)-(c). SB4 further requires Texas to indemnify local entities against any claim arising out of their
6

Case: 17-50762 Document: 00514463217 Page: 7 Date Filed: 05/08/2018
No. 17-50762 good-faith compliance with an ICE-detainer request. See Tex. Gov’t Code § 402.0241. II. Prior Proceedings
Before SB4 could go into effect, several Texas cities, counties, local lawenforcement and city officials, and advocacy groups challenged the law in three consolidated actions. The plaintiffs sought a preliminary injunction, and the district court found the plaintiffs likely to prevail on the following claims:
• Section 752.053(b)(3)’s assistance-cooperation provision is field and conflict preempted by federal immigration law;
• Section 752.053(a)(1)’s “endorse” prohibition violates the First and Fourteenth Amendments because it is overbroad, discriminates on the basis of viewpoint, and is unconstitutionally vague;
• Section 752.053(a)(1) and (a)(2)’s “materially limits” prohibitions are unconstitutionally vague under the Fourteenth Amendment; and
• Article 2.251’s ICE-detainer mandate violates the Fourth Amendment.
Enjoining these provisions, the district court nevertheless rejected the plaintiffs’ claims that SB4 was preempted more generally.
Following the district court’s order, Texas moved this court to stay the injunction pending appeal. The stay panel granted the motion in part, finding Texas likely to prevail on the Fourth Amendment and preemption claims, and stayed the injunction as to article 2.251’s ICE-detainer mandate and Section 752.053(b)(3)’s assistance-cooperation provision. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, at *2 (5th Cir. Sept. 25, 2017) (per curiam). The stay panel left the injunction in place as to the “endorse” and the “materially limits” prohibitions, concluding that possible limiting constructions of these terms “are best left for the time when this court’s ruling would have more finality.” Id. Texas now appeals the preliminary injunction,
7

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No. 17-50762 and the plaintiffs cross-appeal the district court’s refusal to enjoin SB4 completely.
STANDARD OF REVIEW “To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations omitted). This court “review[s] a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013) (citations omitted). Because the issues raised by the parties substantially overlap, we discuss the appeal and cross-appeal together.
DISCUSSION I. Preemption
Under the federal Constitution, “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398, 132 S. Ct. 2492, 2500 (2012). Because dual sovereignty allows for conflicts between state and federal legislation, the Constitution’s Supremacy Clause provides that federal legislation “shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Congress may preempt state legislation “by enacting a statute containing an express preemption provision,” Arizona, 567 U.S. at 399, 132 S. Ct. at 2500-01, but this case does not involve express preemption. Rather, the plaintiffs allege two forms of implied preemption: field preemption and conflict preemption.
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Case: 17-50762 Document: 00514463217 Page: 9 Date Filed: 05/08/2018
No. 17-50762 A. Field Preemption
Field preemption occurs when “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona, 567 U.S. at 399, 132 S. Ct. at 2501. Although the Supreme Court has recognized field preemption claims, it has indicated courts should hesitate to infer field preemption unless plaintiffs show “that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was ‘the clear and manifest purpose of Congress.’” De Canas v. Bica, 424 U.S. 351, 357, 96 S. Ct. 933, 937 (1976) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S. Ct. 1210, 1219 (1963)); see also Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 560 (5th Cir. 2013) (en banc) (Higginson, J., specially concurring) (noting that De Canas forecloses sweeping field preemption claims). Analyzing the relevant federal legislation, we conclude that the plaintiffs have not satisfied this standard. Congress has not preempted the field that SB4 regulates.
The district court found only one provision of SB4 field preempted. According to the district court, Section 752.053(b)(3)’s assistance-cooperation provision impermissibly regulates the field of “immigration enforcement,” which Congress fully preempted through comprehensive regulation. The plaintiffs now argue that SB4 is field-preempted in its entirety because Congress occupied the field of “federal-local cooperation in immigration enforcement.”
As evidence that Congress has comprehensively regulated the relevant field, the plaintiffs point to federal statutes regulating local cooperation with immigration enforcement. See 8 U.S.C. § 1324(c) (permitting local officers to make arrests for crimes of immigrant smuggling, transporting, or harboring); id. § 1252c (authorizing local officers to make arrests to enforce criminal
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No. 17-50762 reentry provisions following INS “confirmation” of an individual’s immigration status); id. § 1103(a)(10) (authorizing local officers to enforce immigration law if the Attorney General has “determine[d] that an actual or imminent mass influx of aliens . . . presents urgent circumstances”); id. §§ 1373, 1644 (requiring that state and local jurisdictions permit their officers to send, receive, and maintain “information regarding the citizenship or immigration status” of individuals).
In addition to these provisions, the plaintiffs rely heavily on 8 U.S.C. § 1357, which specifies immigration-officer functions and describes circumstances under which state and local officers can perform those functions. Under Section 1357, immigration-officer functions include the power “to interrogate” and “to arrest” aliens without a warrant. Id. § 1357(a)(1)-(2). Section 1357 further provides that states and political subdivisions can enter into written agreements with the Federal Government, so that state and local officers can perform immigration-officer functions. Id. § 1357(g). These “287(g)”5 agreements require that local officers must be “determined by the Attorney General to be qualified”; that they receive appropriate training; that their powers and duties are set forth in a written agreement; and that they are “subject to the direction and supervision of the Attorney General.” Id. § 1357(g)(1)-(5). States and municipalities may not be required to enter into these agreements. Id. § 1357(g)(9).
Section 1357 also contains a critical savings clause. Id. § 1357(g)(10). Because the parties’ analysis focuses heavily on this provision, we quote it in full:
5 The term “287(g)” refers to the section of the Immigration and Nationality Act that authorized these agreements. Lunn v. Commonwealth, 78 N.E.3d 1143, 1158 (Mass. 2017).
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No. 17-50762 (10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. Id. § 1357(g)(10)(A)-(B). Therefore, although Section 1357 creates a highly regulated scheme for adopting 287(g) agreements, it also expressly allows cooperation in immigration enforcement outside those agreements. Id. The plaintiffs’ reliance on these provisions is misplaced; SB4 and the federal statutes involve different fields. Federal law regulates how local entities may cooperate in immigration enforcement; SB4 specifies whether they cooperate. One could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly. See Arizona, 567 U.S. at 400-01, 132 S. Ct. at 2501-02 (defining the relevant field as “alien registration”); De Canas, 424 U.S. at 360 n.8, 96 S. Ct. at 938 (“Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution.”) (quoting Hines v. Davidowitz, 312 U.S. 52, 78-79, 61 S. Ct. 399, 410 (1941) (Stone, J., dissenting)). To establish field preemption, moreover, the plaintiffs must prove that federal law evinces “the clear and manifest purpose of Congress” to preclude even complementary state legislation on the same subject. De Canas, 424 U.S. at 357, 96 S. Ct. at 937. Federal law does not suggest the intent—let alone a “clear and manifest” one—to prevent states from regulating whether their localities cooperate in immigration enforcement. Section 1357 does not require cooperation at all. Id. § 1357(g)(9). And the savings clause allowing
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No. 17-50762 cooperation without a 287(g) agreement indicates that some state and local regulation of cooperation is permissible. See id. § 1357(g)(10)(A)-(B).
There is a further weakness in this field preemption claim. The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement. See generally Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997). Congress could not pass a federal SB4. But if that is so, it seems impossible that Congress has occupied the field that SB4 regulates.
The district court’s field preemption analysis underscores the difference between SB4 and the relevant federal legislation. The district court found that Section 1357 demonstrates Congress’s intent to retain oversight over local immigration enforcement. But SB4 does nothing to strip oversight from the Federal Government. In its operation, SB4 is similar to one of the city ordinances some plaintiffs have themselves adopted. These ordinances regulate whether and to what extent the local entities will participate in federal-local immigration enforcement cooperation.6 SB4 accomplishes the same goal on a state-wide level. If SB4 is field preempted, so too are the local ordinances that regulate “federal-local cooperation in immigration enforcement.”
While this accentuates the substantive difference between SB4 and the relevant federal legislation, the plaintiffs’ arguments focusing on congressional intent sound principally in conflict preemption. We analyze these below. B. Conflict Preemption
Conflict preemption occurs when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers,
6 For instance, the Maverick County Sheriff’s Office has a policy under which it does “not participate or cooperate in the arrests of individuals for civil immigration violations.”
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No. 17-50762 373 U.S. at 142-43, 83 S. Ct. at 1217, or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67, 61 S. Ct. at 404. The district court held that only Section 752.053(b)(3) and its related penalties were conflict preempted, but the plaintiffs now argue that other provisions of SB4 impliedly conflict with federal law. We conclude that none of SB4’s provisions conflict with federal law.
i. The Assistance-Cooperation Provision Section 752.053(b)(3) of the Texas Government Code forbids any action
that would “prohibit or materially limit” a specified official from “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.” See Tex. Gov’t Code § 752.053(b)(3). The plaintiffs argue that this provision is preempted for three reasons: (1) it permits unilateral local immigration enforcement, (2) it authorizes local officers to perform immigration-officer functions without a 287g agreement, and (3) it conflicts with the federal purpose that local cooperation in immigration enforcement be entirely voluntary.
The plaintiffs’ first argument misconstrues the statute. Certainly, Arizona emphasized the “principle that the removal process is entrusted to the discretion of the Federal Government.” Arizona, 567 U.S. at 409, 132 S. Ct. at 2506. And the Court found Section 6 of Arizona’s SB1070 preempted because it granted local officers authority to conduct unilateral warrantless arrests of aliens suspected of being removable. See id. Unlike the statute in Arizona, however, SB4’s assistance-cooperation provision does not authorize unilateral enforcement. Indeed, the phrase “assisting or cooperating” requires a predicate federal request for assistance. See Tex. Gov’t Code § 752.053(b)(3). Subsection (b)(3) also specifies that this assistance and cooperation must occur “with a federal immigration officer as reasonable or necessary.” Id.
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No. 17-50762 § 752.053(b)(3). SB4’s assistance-cooperation provision does not permit local officials to act without federal direction and supervision.7
The plaintiffs’ second argument suggests that subsection (b)(3) conflicts with federal law by allowing local officers to engage in immigration-officer functions absent the requirements imposed by 8 U.S.C. § 1357(g). The plaintiffs stress that these requirements—a written agreement, training, and direct supervision by DHS—ensure that immigration enforcement adheres to congressional priorities and prevents the mistreatment of noncitizens. Section 752.053(b)(3) allegedly ignores these requirements, thereby undermining federal law’s delicate balance of statutory objectives.
This argument discounts the savings clause in 8 U.S.C. § 1357(g)(10)(B), which explicitly provides that a 287(g) agreement is not required for states “otherwise to cooperate . . . in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” This provision indicates that Congress intended local cooperation without a formal agreement in a range of key enforcement functions. The plaintiffs rely on the word “otherwise” to argue that permissible cooperation must categorically exclude activities allowed under 287(g) agreements. We disagree. The savings clause clarifies that a 287(g) agreement is not required “(A) to communicate . . . or (B) otherwise to cooperate.” Id. § 1357(g)(10)(A)-(B). In context, the word “otherwise” refers to subsection (A) and explains that subsection (B) permits cooperation beyond communication—communication itself being a form of
7 We also note that this provision does not require cooperation unless it is “reasonable or necessary.” Tex. Gov’t Code § 752.053(b)(3). Thus, as Texas acknowledges, this provision does not generally preclude immigration-neutral policies regarding bona fide resource allocation—e.g., policies regarding overtime or patrolling locations.
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No. 17-50762 cooperation.8 The plaintiffs are wrong to suggest that this interpretation makes 287(g) agreements superfluous. Under these agreements, state and local officials become de facto immigration officers, competent to act on their own initiative. By contrast, Section 1357(g)(10)(B) and SB4’s assistancecooperation provision permit no unilateral enforcement activity.
The plaintiffs also contend that this savings clause allows for only caseby-case cooperation. Yet a “case-by-case” qualifier is absent from the statute’s text. DHS guidance relied on by the plaintiffs also fails to support their argument. This guidance critiques “systematic” local enforcement that “conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate.”9 State action under SB4’s assistancecooperation provision will not conflict with federal priorities or limit federal discretion in this way because it requires a predicate federal request. DHS guidance does not suggest that subsection (b)(3) authorizes conduct beyond what is allowed by Section 1357(g)(B)(10)’s savings clause.10
The plaintiffs’ third conflict argument unnecessarily reads a preemptive purpose into federal law; they claim that subsection (b)(3) makes mandatory
8 DHS guidance confirms our interpretation of “otherwise”: “[1357(g)(10)(A)] must be read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for state and local officers to ‘otherwise cooperate’ with the Secretary, without a written agreement. Because the INA thus deems communications referred to in subparagraph (A) to be another form of ‘cooperation’ . . . .” DHS, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters (emphasis in original), available at https://www.dhs.gov/sites/default/files/publications/guidance-state-localassistance-immigration-enforcement.pdf.
9 See id.
10 Indeed, DHS guidance also negates the plaintiffs’ argument that SB4 goes beyond Section 1357(g)(10)(B)’s savings clause by allowing for “assistance” as well as “cooperation.” In describing the conduct allowed under the savings clause, the DHS guidance uses a form of the word “assist” 40 times. See id.
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No. 17-50762 what Congress intended to be voluntary. To support this argument, the plaintiffs observe that Section 1357(g) refers to both a “State” and a “political subdivision,” and they infer that Congress specifically intended that “political subdivisions” be able to choose whether to cooperate in immigration enforcement. The plaintiffs support this reading by pointing to 8 U.S.C. § 1373, which—somewhat like SB4’s information-sharing provision—prohibits states and local entities from refusing to share federal immigration-status information. According to the plaintiffs, Section 1373 proves that Congress could have required political subdivisions to cooperate more generally, but expressly chose not to do so.
The plaintiffs’ arguments fail for two reasons. First, recent Supreme Court decisions in this area undermine this implied congressional purpose. In Arizona, for instance, the Supreme Court upheld state laws mandating immigration-status inquiries. See Arizona, 567 U.S. at 411-415, 132 S. Ct. at 2508-10. Similarly, in Chamber of Commerce of U.S. v. Whiting, the Court upheld a state law mandating that employers check immigration status with an electronic-verification system. 563 U.S. 582, 611, 131 S. Ct. 1968, 1987 (2011) (concluding that state law fell within the Immigration Reform and Control Act’s savings clause). In neither case did federal law require these status inquiries. Yet the Supreme Court did not suggest that the states’ requirements conflicted with the congressional desire for voluntary cooperation. Indeed, the Court has repeatedly rejected a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives” because “such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law.” Whiting, 563 U.S. at 607, 131 S. Ct. at 1985 (citations omitted).
Second, and as noted earlier, the plaintiffs have admitted that, under the Tenth Amendment, Congress could not compel local entities to enforce
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No. 17-50762 immigration law. If that is the case, Congress did not choose to make these laws voluntary; it could not have made them mandatory. Section 1373 itself has not been immune from Tenth Amendment scrutiny. See City of New York v. United States, 179 F.3d 29, 34-37 (2d Cir. 1999) (upholding the federal legislation “[g]iven the circumscribed nature of [the court’s] inquiry”). Together with the shaky foundation of the plaintiffs’ imputed purpose, the Tenth Amendment implications show that SB4’s assistance-cooperation provision does not conflict with federal law.11 ii. The Status-Inquiry and Information-Sharing Provisions
Section 752.053(b)(1) of the Texas Government Code, the status-inquiry provision, forbids local entities from preventing officers from “inquiring into the immigration status of a person under a lawful detention or under arrest.” See Tex. Gov’t Code § 752.053(b)(1). Subsection (b)(2), the information-sharing provision, forbids local entities from preventing officers from maintaining immigration-status information and sharing it with federal agencies. See id. § 752.053(b)(2). Because the Arizona Court upheld equivalent sections of a state statute, the plaintiffs’ arguments are insufficient to establish a conflict.
The plaintiffs contend that subsection (b)(1) authorizes “interrogation,” which is an immigration-officer function under 8 U.S.C. § 1357(g)(a)(1). But it is not clear why SB4’s status-inquiry provision authorizes impermissible conduct but the provision upheld in Arizona did not. In Arizona, the state law required local officers to make a “reasonable attempt . . . to determine the immigration status” of anyone who has been lawfully detained if “reasonable
11 Because the assistance-cooperation provision does not conflict with federal law, neither do the penalties attached to it. When a state is allowed to substantively regulate conduct, it must be able to impose reasonable penalties to enforce those regulations. See, e.g., Whiting, 563 U.S. at 605-07, 131 S. Ct. at 1984-85 (rejecting the dissent’s reliance on the penalties attached to the valid regulation).
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No. 17-50762 suspicion exists that the person is an alien and is unlawfully present in the United States.” Arizona, 567 U.S. at 411, 132 S. Ct. at 2507. The law also required that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Id.
If anything, the statute in Arizona seems more problematic because it mandates status inquiries where SB4 merely forbids preventing those inquiries. True, the Court in Arizona seemed to assume that status inquiries primarily involved communication with ICE and the statute in Arizona uses the word “reasonable.” See Arizona, 567 U.S. at 411-12, 132 S. Ct. at 2507-08. But no suspicion—reasonable or unreasonable—is required for officers to ask questions of lawfully-detained individuals. See Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465, 1471-72 (2005). And it would be wrong to assume that SB4 authorizes unreasonable conduct where the statute’s text does not require it. See Arizona, 567 U.S. at 415, 132 S. Ct. at 2510 (quoting Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S. Ct. 813, 817-18 (1960)) (noting that the Court’s precedents “enjoin seeking out conflicts between state and federal regulation where none clearly exists”).12
Regarding subsection (b)(2), the plaintiffs observe that this provision mirrors the federal information-sharing provisions in 8 U.S.C. § 1373 but imposes harsher penalties. Section 1373, however, does not comprise any comprehensive regulatory framework with which SB4 could conflict. As noted above, the Tenth Amendment would likely preclude Congress from enforcing Section 1373 with the penalties provided by SB4. Moreover, the Arizona Court emphasized that Congress “has encouraged the sharing of information about
12 The plaintiffs also rely on the fact that the Supreme Court merely held that Arizona’s status-inquiry provision was not susceptible to a facial challenge. But, of course, this case also involves a facial challenge.
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No. 17-50762 possible immigration violations.” Arizona, 567 U.S. at 412. In light of Arizona, neither the status-inquiry nor the information-sharing provisions of SB4 are conflict preempted.13 II. The “Endorse” Prohibition
Section 752.053(a)(1) provides that a “local entity or campus police department” may not “endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” See Tex. Gov’t Code § 752.053(a)(1) (emphasis added). The term “local entity” includes not only governmental bodies like city councils and police departments, but also a series of elected officials and “officer[s] or employee[s]” of the listed bodies. See id. § 752.051(5)(A)-(C). The district court concluded that the term “endorse” (1) was overbroad, (2) constituted viewpoint discrimination, and (3) was unconstitutionally vague. To the extent that “endorse” prohibits core political speech by elected officials, it is not “readily susceptible” to a limiting construction that avoids constitutional concerns. Accordingly, on different reasoning from that employed by the district court, we apply the principle of severability and reject the application of the “endorse” provision to elected officials covered by Section 752.053(a)(1).
We must begin by construing the state statute. United States v. Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838 (2008) (“[I]t is impossible to determine whether a statute reaches too far without first knowing what the statute covers.”). Texas urges this court to adopt a narrowing construction that
13 The plaintiffs also challenge subsections (a)(1) and (a)(2), which broadly forbid any “policy” or “pattern or practice” that “prohibits or materially limits the enforcement of immigration laws.” They argue that these subsections may authorize conduct that is impermissible under the federal savings clause, 8 U.S.C. § 1357(g)(10)(B), even if subsections (b)(1)-(3) do not. We decline to infer a conflict based solely on speculation. See Arizona, 567 U.S. at 415, 132 S. Ct. at 2510.
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No. 17-50762 interprets “endorse” to mean “sanction” and limits the verb’s scope to official speech.
Federal courts must accept a reasonable narrowing construction of a state law to preserve its constitutionality. See Voting for Am., Inc., v. Steen, 732 F.3d 382, 396 (5th Cir. 2013). However, a court has no authority to “‘rewrite a . . . law to conform it to constitutional requirements,’ for doing so would constitute a ‘serious invasion of the legislative domain.’” United States v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 1592 (2010) (citations omitted). A statute must be “readily susceptible” to a construction for a court to adopt it. Id.; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-17, 95 S. Ct. 2268, 2276 (1975) (refusing to adopt a limiting construction because “the ordinance by its plain terms [was] not easily susceptible of” one).
The verb “endorse” literally means “to write on the back of (a document),”14 but there is no question that the figurative meaning of the verb includes the broad significance the district court ascribed to it.15 As shown by the district court’s survey of dictionary definitions, the most common meaning of “endorse” encompasses “a recommendation, suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is generally conveyed openly or publicly.” Texas is also correct, however, that the verb “sanction” is a common definition for “endorse.”16 And the verb “sanction”

14 See The Oxford English Dictionary (online ed. 2017), available at http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid.

15 See The American Heritage Dictionary of the English Language (online ed. 2017) (defining “endorse” as “[t]o express approval of . . . especially by public statement”), available at https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College Dictionary (online ed. 2017) (offering “to give approval to; support” as possible definitions of endorse), available at http://www.yourdictionary.com/endorse.

16 See The Oxford English Dictionary (online ed. 2017) (defining the figurative sense

of

“endorse”

as

“[t]o

confirm,

sanction”),

available

at

http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid;

20

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No. 17-50762 denotes the use of official authority to ratify or authorize.17 The question here is not just whether “endorse” is susceptible to the meaning that Texas proposes, but whether it is reasonable to limit the word accordingly.
For several reasons, we do not find the “endorse” prohibition readily susceptible to this limitation. First, the noscitur a sociis canon does not support the state’s argument. This canon explains that, “[w]hen several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.” See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 195 (2012). This canon does not imbue words with unnatural meaning, but serves “rather to limit a general term to a subset of all the things or actions that it covers.” See id. at 196. For instance, in United States v. Williams, the Supreme Court relied on this canon to find that a statute only penalized “speech that accompanies or seeks to induce a transfer of child pornography.” 553 U.S. 285, 294, 128 S. Ct. 1830, 1839 (2008). In Williams, the relevant list of verbs was “advertises, promotes, presents, distributes, or solicits.” Id. The Court recognized that the verbs “promotes” and “presents” were “susceptible of multiple and wide-ranging meanings,” which would, like a broad construction of “endorse,” cover much protected speech. Id. To avoid the First Amendment

The American Heritage Dictionary of the English Language (online ed. 2017) (listing “sanction” as a secondary meaning of “endorse”), available at https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College Dictionary (online ed. 2017) (same), available at http://www.yourdictionary.com/endorse.

17 See The American Heritage Dictionary (online ed. 2017) (defining “sanction” as “[t]o

give

official

authorization

or

approval

to”),

available

at

https://ahdictionary.com/word/search.html?q=sanction; The Oxford English Dictionary

(online ed. 2017) (defining “sanction” as “[t]o ratify or confirm by sanction or solemn

enactment; to invest with legal or sovereign authority; to make valid or binding”), available

at

http://www.oed.com/view/Entry/170491?rskey=VpyOmv&result=2&isAdvanced=false#eid.

21

Case: 17-50762 Document: 00514463217 Page: 22 Date Filed: 05/08/2018
No. 17-50762 problem, the Court used noscitur a sociis to narrow “promotes” and “presents” to their “transactional connotation.” Id.
Using noscitur a sociis here to limit “endorse” to the meaning it shares with “adopt” and “enforce” renders “endorse” either superfluous or meaningless. To the extent that all three verbs connote the exercise of government authority to develop and administer policy, “endorse” (as interpreted by the state to mean “officially sanction”) adds nothing of substance to the prohibitions against an entity’s actually “adopting” or “enforcing” policies at odds with SB4. Without putting action behind his “sanction,” an official who merely “endorses” impermissible policies has not “adopted” or “enforced” them, no matter the amount of speech he has devoted to that end. The official’s “sanction” is toothless. Alternatively, if an official’s “sanction” is functionally equivalent to “adopting” or “enforcing” impermissible policies, the word becomes wholly redundant. There is no generic context, like the “transactional context” noted in Williams, in which “endorse,” read to mean “sanction,” conveys additional meaning to this provision.
Second, that the clause following “endorse” prohibits the endorsement of “a policy under which the entity or department limits the enforcement of immigration laws” does not support the state’s narrow interpretation of “endorse.” See Tex. Gov’t Code § 752.053(a)(1) (emphasis added). Granted, under this qualifying phrase, SB4 does not regulate any statements approving hypothetical policies or the policies of any other entity of government. But as we have explained, the “endorsement” as “sanction” of policies contrary to SB4, without accompanying action to “adopt” or “enforce” such policies, is “mere” core political speech. This provision’s qualifying language accentuates the overlap between “official” and “individual” speech that the state erroneously attempts to deny. As the plaintiffs point out, under the state’s rationale, a local
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No. 17-50762 sheriff may violate SB4 by answering questions at a local town hall meeting or press conference or testifying to a legislative committee.18
In sum, we are unpersuaded that, taken in context, “endorse” “readily” bears the restrictive meaning urged by the state. As written, SB4 proscribes core political speech when such “endorsement” is uttered by elected officials. The state cannot regulate the substance of elected officials’ speech under the First Amendment without passing the strict scrutiny test. See Williams-Yulee v. The Fla. Bar, 135 S. Ct. 1656, 1665-66 (2015). The state concedes that if “endorse” bears its most common and natural meaning, this provision does not pass constitutional muster as applied to elected officials. In light of the infringement of this provision on elected officials’ core political speech, the state’s concession necessarily applies to the elements required for injunctive relief. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295-97 (5th Cir. 2012).
This conclusion does not, however, insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as “government speech.” See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate
18 The plaintiffs are incorrect that related provisions of SB4 bear on the First Amendment argument. Exemptions from SB4 when an officer works off-duty for an exempt entity like a charter school, see, e.g., Tex. Gov’t Code § 752.052, simply determine whether SB4 applies at all, not what speech it covers. Nor is it significant that “a statement by [a] public officer” may constitute evidence that an entity has violated SB4. See id. § 752.0565(b). It is unremarkable that “statements” could be probative of a local entity’s policy or pattern or practice of limiting immigration enforcement.
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No. 17-50762 their communications from employer discipline”). In the context of government speech, a state may endorse a specific viewpoint and require government agents to do the same. See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2253 (2015) (rejecting viewpoint discrimination claim after finding that the specialty license plates at issue constituted government speech).
Such issues are not properly before us because the appellees do not represent the public employees putatively covered by Garcetti and the government speech doctrine. The Supreme Court has directed that “the lawfulness of the particular application of the law should ordinarily be decided first” before mounting “gratuitous wholesale attacks” under the overbreadth doctrine. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S. Ct. 3028, 3037 (1989). Accordingly, we “resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.” Serafine v. Branaman, 810 F.3d 354, 363 (5th Cir. 2016) (quoting Street v. New York, 394 U.S. 576, 581, 89 S. Ct. 1354, 1360 (1969)).
Consistently with but more narrowly than the district court, we affirm the district court’s injunction against enforcement of Section 752.053(a)(1) only as it prohibits elected officials from “endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” III. The ICE-Detainer Mandate
Article 2.251(a) provides that law enforcement agencies “that ha[ve] custody of a person subject to an immigration detainer request . . . shall: (1) comply with, honor, and fulfill any request made in the detainer request . . . and (2) inform the person that the person is being held pursuant to” that request. Tex. Code Crim. Proc. art. 2.251(a)(1)-(2). Law enforcement agencies
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No. 17-50762 are exempt from the duty imposed by subsection (a) when the individual in custody “has provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver’s license or similar government-issued identification.” Id. art. 2.251(b). The district court held that the ICE-detainer mandate violates the Fourth Amendment because it is not reasonable for local officials to detain persons based on probable cause of removability.
Before reviewing the merits of this issue, we are obliged to address the threshold question whether the plaintiffs have standing to challenge the ICEdetainer mandate. Standing in federal court requires that the plaintiffs “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992)). The plaintiffs contend that they satisfy these requirements because the ICEdetainer mandate would force plaintiff local government officials to choose between violating their oaths of office to defend the U.S. Constitution and facing criminal penalties and expulsion from office. We agree. There is no question that the second and third prongs of the standing analysis are met. The injury claimed by the plaintiffs stems directly from Texas’s enactment of the ICE-detainer mandate. Judicial invalidation of the mandate would obviate the plaintiffs’ concerns. Accordingly, we need assess only whether the plaintiffs have alleged a sufficient injury.
In Board of Education v. Allen, the Supreme Court concluded that school board officials had standing to challenge a state statute requiring school districts to purchase and loan textbooks to students enrolled in parochial schools. 392 U.S. 236, 241 n.5, 88 S. Ct. 1923, 1925 (1968). The Court explained, “[b]elieving [state law] to be unconstitutional, [the plaintiffs] are in
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No. 17-50762 the position of having to choose between violating their oath and taking a step—refusal to comply with [state law]—that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts.” Id. This court’s decisions applying Allen have explained that it is not enough for public officials to assert as an “injury” the violation of their oaths of office where no adverse consequences would occur. See, e.g., Finch v. Miss. State Med. Ass’n, 585 F.2d 765, 774-75 (5th Cir. 1978) (observing that the plaintiff Governor was “certainly in no danger of expulsion [from office] at the hands of the defendant professional associations” and that “there is no allegation that his office is in any danger of a loss of funds . . . if the Governor refuses to comply with the statute”); Donelon v. La. Div. of Admin. Law, 522 F.3d 564, 567 (5th Cir. 2008) (denying standing for Louisiana Commissioner of Insurance); Crane v. Johnson, 783 F.3d 244, 253 (5th Cir. 2015) (“Under the Fifth Circuit precedent, [ICE agents’] violation of [ ] oath alone is an insufficient injury to support standing.”).
In this case, plaintiff government officials have a claim to standing analogous to the school board members in Allen. The plaintiff government officials face criminal penalties in addition to civil fines and expulsion from office if they disobey the ICE-detainer mandate. And if they comply with the allegedly unconstitutional mandate, the violation of their oaths is not the only putative injury; any ICE-detainer mandate enforcement actions that knowingly violate detainees’ Fourth Amendment rights could expose the plaintiffs to damage suits.19 The plaintiff government officials have a sufficient
19 It is true that SB4 provides the possibility of indemnification for certain civil lawsuits arising from good-faith compliance with the ICE-detainer mandate. See Tex. Gov’t Code § 402.0241. But this possibility is cold comfort for the plaintiffs when the statute leaves it to Texas to determine whether an entity has engaged in “good-faith compliance” warranting indemnification. See id. § 402.0241(b)(2).
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No. 17-50762 “personal stake” to press their claim based on alleged violation of their oaths and potentially severe personal consequences, and we may proceed to the merits. See Donelon, 522 F.3d at 568.
The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV.20 A constitutional seizure of a criminal defendant must generally be supported by probable cause. Nevertheless, this case does not involve whether probable cause existed in a particular instance: it is a pre-enforcement facial challenge. Such a challenge is “the most difficult . . . to mount successfully.” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). Bringing a facial challenge, it is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate will often cause Fourth Amendment violations. They must establish that the mandate “is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008).
The plaintiffs suggest that the Supreme Court’s recent decision in City of Los Angeles v. Patel, has lowered the bar for facial Fourth Amendment challenges, but they misconstrue the case. 135 S. Ct. 2443 (2015). Patel rejected the contention that facial Fourth Amendment challenges are “categorically barred or especially disfavored.” Id. at 2449. The Court did not overrule the Salerno standard but merely clarified that, under the unconstitutional-in-all-of-its-applications analysis, a court must “consider[]
20 We pretermit the question whether the Fourth Amendment even applies to many aliens subject to ICE-detainer requests. See Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014) (holding that the “entry fiction” applies to preclude illegal aliens’ Fourth Amendment detention claims); United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (noting that the Supreme Court has never “held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally”); but see Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624-25 (5th Cir. 2006) (holding that an alien with substantial connections to the United States “may bring a Bivens claim for unlawful arrest and the excessive use of force under the Fourth Amendment”).
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No. 17-50762 only applications of the [challenged] statute in which it actually authorizes or prohibits conduct.” Id. at 2451 (emphasis added). In other words, a facial challenge does not fail merely because exigent circumstances or a warrant could independently justify some applications of the challenged statute. Id. Thus, the plaintiffs must establish that every seizure authorized by the ICEdetainer mandate violates the Fourth Amendment. They have not satisfied this exacting standard.
It is undisputed that federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability. Abel v. United States, 362 U.S. 217, 233-34, 80 S. Ct. 683, 694 (1960). It is also evident that current ICE policy requires the Form I-247A to be accompanied by one of two such administrative warrants. On the form, an ICE officer certifies that probable cause of removability exists. Thus, an ICE-detainer request evidences probable cause of removability in every instance. 21
Under the collective-knowledge doctrine, moreover, the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability. See United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017) (“Under the collective knowledge doctrine, an officer initiating the stop or conducting the search need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause, so long as he is acting at the request of those who have the necessary information.”). Compliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge
21 The plaintiffs’ suggestion that “an ICE agent may indicate simply that DHS intends to assume custody of the detainee to ‘make an admissibility determination’” misrepresents Form I-247A. The box they mention applies only when DHS has transferred an alien to the local authority’s custody for a proceeding or investigation and thus “intends to resume custody of the alien to complete processing and/or make an admissibility determination.” See ICE Form I-247A, available at https://perma.cc/RH4C-5D8Q.
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No. 17-50762 doctrine, where the detainer request itself provides the required “communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
Nevertheless, the plaintiffs make several arguments why this cooperation constitutes a per se violation of the Fourth Amendment. First, they defend the district court’s holding that state and local officers may only arrest individuals if there is probable cause of criminality. The district court erred. Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed. See Cantrell v. City of Murphy, 666 F.3d 911, 923 (5th Cir. 2012) (state statute authorizing seizure of mentally ill); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (state statute authorizing seizure of those seriously ill and in danger of hurting themselves); Commonwealth v. O’Connor, 546 N.E.2d 336, 341 (Mass. 1989) (state statute authorizing seizure of incapacitated persons); In re Marrhonda G., 613 N.E.2d 568, 569 (N.Y. 1993) (state statute authorizing seizure of juvenile runaways). The district court’s contention is also patently at odds with immigration law and procedure; civil removal proceedings necessarily contemplate detention absent proof of criminality. See, e.g, Demore v. Kim, 538 U.S. 510, 531, 123 S. Ct. 1708, 172122 (2003) (upholding no-bail civil immigration detention under a Fifth Amendment Due Process challenge).22
The plaintiffs also argue that there is no state law authorizing local officers to conduct seizures based on probable cause of removability. They cite Lunn v. Commonwealth, in which the Supreme Judicial Court of
22 For these reasons, we also disavow any district court decisions that have suggested the Fourth Amendment requires probable cause of criminality in the immigration context. See Mercado v. Dallas Cty., 229 F.Supp.3d 501, 512-13 (N.D. Tex. 2017); Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017).
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No. 17-50762 Massachusetts held that state officers had no state-law authority to carry out detention requests made in civil immigration detainers. 78 N.E.3d 1143, 115860 (Mass. 2017). Lunn is easily distinguishable. Here the ICE-detainer mandate itself authorizes and requires state officers to carry out federal detention requests.
The plaintiffs next contend that the Fourth Amendment requirement is not satisfied when officers must unthinkingly accept an agency’s conclusions without taking into account facts tending to dissipate probable cause. Subsection (b) of article 2.251 allegedly fails to cure this defect because it forces local officers to make removal-status determinations, running afoul of Arizona and Farmers Branch. This argument proves too much. Implicitly, the plaintiffs’ argument would invalidate any compliance with ICE detainers: officers must make their own removal-status determinations to satisfy the Fourth Amendment but officers cannot make such determinations under Arizona and Farmers Branch.
The plaintiffs’ argument misconstrues the relevant precedents. Neither Arizona nor Farmers Branch undermines subsection (b). Arizona denied state officers the power to unilaterally make removability determinations because “[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States” and such decisions “touch on foreign relations and must be made with one voice.” Arizona, 567 U.S. at 409, 132 S. Ct. at 2506-07. Likewise, Farmers Branch invalidated an ordinance requiring building inspectors to conduct their own “unlawful presence” inquiries. 726 F.3d at 532. Both cases involved unilateral status-determinations absent federal direction. But subsection (b) operates only when there is already federal direction—namely, an ICEdetainer request—and the subsection merely limits the scope of the officer’s
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No. 17-50762 duty to comply with that request. It remains the ICE agent who makes the underlying removability determination. 23
The plaintiffs are also wrong to suggest that the ICE-detainer mandate requires officers to ignore facts that negate probable cause. Subsection (b) should cover the majority of cases where facts negate probable cause: indeed, it is difficult to imagine what facts other than valid forms of identification would conclusively negate ICE’s probable cause determination.24 Assuming arguendo that there could be such facts, Texas and the United States as amicus dispute that local officers would be required to ignore them. They argue that the verbs “[c]omply with, honor, and fulfill” require cooperation—not blind obedience. This seems reasonable given the assumption that ICE should have no interest in detaining aliens when local officials communicate that the original determination was flawed. Nevertheless, even if the mandate could hypothetically cause a violation, this possibility is not enough to substantiate a facial challenge.
Likewise, none of the cases the plaintiffs cite indicates that the detainer mandate is facially invalid. In Santos v. Frederick County Board of Commissioners, the Fourth Circuit held that, “absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.” 725 F.3d 451,
23 Because we refuse to interpret subsection (b) as authorizing unilateral removability determinations, we also reject the plaintiffs’ argument that the ICE-detainer mandate is conflict preempted. In doing so, we note that Section 1357(g)(10)(B) expressly mentions cooperation in “identification” and “detention.”
24 It is important to remember that an adult alien commits a federal crime if he fails to “at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card” evidencing his lawful status. 8 U.S.C. § 1304(e).
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No. 17-50762 465 (4th Cir. 2013). Thus, the seizure in Santos violated the Fourth Amendment because the officers detained Santos “before dispatch confirmed with ICE that the warrant was active.” Id. at 466. Similarly, in Melendres v. Arpaio, the Ninth Circuit rejected unilateral detention “based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States.” 695 F.3d 990, 1000 (9th Cir. 2012). As in Santos, there was no federal request for assistance before the seizure. Id. Therefore, these decisions do not affect the ICE-detainer mandate, which always requires a predicate federal request before local officers may detain aliens for the additional 48 hours. The validity of this sort of compliance has been affirmed by at least one circuit. See United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (finding the claim that a state officer could not detain an alien on behalf of federal officers “meritless”).
Last, the plaintiffs argue that the mandate is facially invalid because it does not expressly require a probable cause determination. ICE policy may change, the plaintiffs argue. If that happens, compliance with subsequent detainer requests may violate the Fourth Amendment. In our view, this argument—that ICE policy may change—confirms that facial relief is inappropriate. It is true that ICE might change its policy such that compliance with ICE’s requests would violate the Fourth Amendment. It is also true that, under the current scheme, seizures may occur where probable cause was lacking. But this is no basis for facial relief under Salerno and Patel. If ICE policy changes or if violations occur, the proper mechanism is an as-applied, not a facial challenge. IV. “Materially Limits”
Section 752.053(a)(1)-(2) forbids any “policy” or “pattern or practice” that “prohibits or materially limits” the enforcement of the immigration laws. See Tex. Gov’t Code § 752.053(a)(1)-(2). The plaintiffs contend that the phrase
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No. 17-50762 “materially limits” is unconstitutionally vague on its face. A statutory provision is facially vague when it is plagued with such “hopeless indeterminacy” that it precludes “fair notice of the conduct it punishes.” Johnson v. United States, 135 S. Ct. 2551, 2556-58 (2015). A facially vague provision is “so standardless that it invites arbitrary enforcement.” See id. at 2556; Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S. Ct. 1686, 1689 (1971) (finding an ordinance facially vague because it proscribed “annoying” conduct). The plaintiffs have not established that “materially limits” is facially vague under this exacting standard.
Although the plaintiffs argue that context exacerbates the vagueness of “materially limits,” the opposite is true. The status-inquiry, informationsharing, and assistance-cooperation provisions of Section 752.053(b)(1)-(3) provide specific examples of what conduct local entities cannot limit. Thus, if a policy expressly limits one of these activities, then the question for a court is whether such a limitation is “material.” The inclusion of this qualifier makes the challenged phrase more definite, not less, and materiality standards are routine in the law. See, e.g., Fed. R. Evid. 807(a)(2). Materiality is a familiar component of fraud claims, and the full phrase “materially limit” appears in federal securities law, 15 U.S.C. § 77d-1(b)(1)(H)(i), and in the ABA model rules of professional conduct. Model R. of Prof’l. Conduct 1.7(a)(2), 1.10(a)(1). Materiality is not a vague concept, especially to actors subject to these provisions who are law enforcement or government officers.
The plaintiffs contend that Texas cannot specify any applications of the “materially limits” provision that are not flat prohibitions—and thus already covered by the word “prohibits.” We disagree. Texas identifies the Maverick County Sheriff’s Office policy of refusing to “participate or cooperate in the arrests of individuals for civil immigration violations.” This policy does not actually flatly prohibit cooperation; it limits the circumstances in which
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No. 17-50762 cooperation is permissible: criminal but not civil violations. Texas also cites El Cenizo’s Mayor, who contended that the city’s policy “limits the situations in which [city] . . . officials engage in immigration enforcement or collect and disseminate such information.” This, too, seems like a policy best characterized as limiting and not prohibiting the enforcement of immigration laws. Almost any limitation could be recharacterized as a partial prohibition. That is likely why SB4 includes both terms. Otherwise, supporters of the policies just described could argue that their policies limited but did not actually prohibit immigration enforcement. Thus, the putative redundancy between “prohibits” and “materially limits” likely reflects “a sense of belt-andsuspenders caution” on the part of the legislature. King v. Burwell, 135 S. Ct. 2480, 2498 (2015) (Scalia, J., dissenting). It is no reason to facially invalidate the phrase.
Texas also proposes several narrowing constructions. First, Texas suggests that a material limit must concern “the enforcement of immigration laws” and so policies relating to “general matters like overtime and patrolling locations” would not be covered. Under this limitation, Texas argues, SB4 will “not prohibit immigration-neutral local policies regarding bona fide resource allocation.” Second, Texas states that a “policy cannot ‘materially limit’ immigration-law enforcement if it prohibits actions that the locality already lacks the power to lawfully perform.”
These limitations are reasonable. But the nature of the plaintiffs’ lawsuit—a facial, pre-enforcement challenge—makes us unwilling to adopt limiting constructions that are not strictly necessary to preserve the constitutionality of a statute. In general, as-applied challenges brought in post-enforcement proceedings are “the basic building blocks of constitutional adjudication.” See Gonzales v. Carhart, 550 U.S. 124, 168, 127 S. Ct. 1610, 1639 (2007) (citations omitted). Here, it is helpful to consider the many years
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No. 17-50762 and judicial decisions leading to the Supreme Court’s invalidation of the residual clause in Johnson: “Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.” Johnson, 135 S. Ct. at 2560. In contrast to the extreme circumstances in Johnson, the posture of this case calls for judicial restraint. See, e.g., Wash. State Grange, 552 U.S. at 450-51, 128 S. Ct. at 1191 (recognizing that pre-enforcement facial challenges are “disfavored” because they “often rest on speculation” and “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution”). For these reasons, we conclude that the “materially limits” phrase is not facially void for vagueness. V. Commandeering Challenge
The plaintiffs raise an argument on appeal that was not presented to the district court. They begin by pointing out that the Tenth Amendment prevents the Federal Government from forcing local governments to enforce federal immigration laws. Then they state that the preemption doctrine prevents Texas from passing direct immigration-enforcement regulation. From these premises, the plaintiffs argue that, under the Texas Constitution, the state cannot preempt cities’ home-rule authority without passing the sort of direct immigration regulation that would be preempted by federal law.
This argument is waived because it was not adequately raised below. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005). Even if it were not waived, this argument merely recasts a state-law home-rule-city argument as a hybrid Tenth Amendment and preemption claim. The plaintiffs’ briefing indicates that this argument stems from questions asked during oral argument on Texas’s motion to stay. The flaw in the argument is that Texas law is clear: “The Texas Constitution prohibits a city from acting in a manner
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No. 17-50762 inconsistent with the general laws of the state. Thus, the legislature may, by general law, withdraw a particular subject from a home rule city’s domain.” Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex. 1991) (citations omitted). For better or for worse, Texas can “commandeer” its municipalities in this way.
CONCLUSION The plaintiffs have not made a showing that they are likely to succeed on the merits of any of their constitutional claims except as to the enforcement of Tex. Gov’t Code § 752.053(a)(1)’s “endorse” provision against elected officials. The foregoing discussion demonstrates there is no merit in their remaining arguments, and none of the other challenged provisions of SB4 facially violate the Constitution. Accordingly, we AFFIRM in part the district court’s preliminary injunction, VACATE in large part and remand with instructions to DISMISS the vacated injunction provisions.
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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 08, 2018

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 17-50762

City of El Cenizo, Texas, et al v. State of Texas, et al USDC No. 5:17-CV-404 USDC No. 5:17-CV-459 USDC No. 5:17-CV-489

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that

Case: 17-50762 Document: 00514463223 Page: 2 Date Filed: 05/08/2018
this information was given to your client, within the body of your motion to withdraw as counsel.
The judgment entered provides that each party bear its own costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________ Nancy F. Dolly, Deputy Clerk
Enclosure(s)
Mr. Chirag Gopal Badlani Mr. J. Campbell Barker Ms. Jo Anne Bernal Ms. Lisa Schiavo Blatt Mr. Nicolas Chavez Mr. Christopher Coppola Mr. Ari Cuenin Mr. Jeffrey Dana Mr. Andre M. Davis Ms. Eleanor M. Dilkes Mr. David Wilson Dummer Mr. Andrew James Ehrlich Ms. Laurie R. Eiserloh Mr. Javier Espinoza Mr. Charles S. Estee Mr. E. Martin Estrada Mr. Luis Orlando Figueroa Mr. Leon Fresco Ms. Yolanda Cornejo Garcia Mr. Jose Garza Mr. Lee P. Gelernt Ms. Katherine E. M. Goettel Honorable Jamie Gorelick Mr. Jon Marshall Greenbaum Mr. David J. Hacker Mr. John Charles Hernandez Mr. Michael Meriwether Hethmon Mr. Renea Hicks Mr. Lonny Jacob Hoffman Mr. Omar C. Jadwat Mr. Michael Jenkins Mr. Stephen B. Kang Mr. Scott A. Keller Ms. Deborah Lynne Klein Mr. Timothy Robert Labadie Mr. Noah Adam Levine Mr. Ronald Charles Lewis Mr. James Edward Maloney Mr. Grant Bellows Martinez Mr. Darren Lee McCarty

Case: 17-50762 Document: 00514463223 Page: 3 Date Filed: 05/08/2018
Ms. Mary B. McCord Ms. Lynnette Miner Mr. Michael Patrick Moran Ms. Celina Y. Moreno Ms. Elizabeth Baker Murrill Ms. Kavita Narayan Mr. Anthony J. Nelson Mr. David Austin Robert Nimocks Mr. Patrick G. O'Brien Mr. Efren Carlos Olivares Mr. Kevin D. Pagan Ms. Barbara J. Parker Ms. Collyn Ann Peddie Ms. Nina Perales Mr. Noah Barnett Peters Ms. Erica Peterson Ms. Olivia Radin Ms. Tracy Reeve Mr. Erez Reuveni Mr. Rolando Leo Rios I Ms. Stacy Jordan Rodriguez Mr. Cristian Rosas-Grillet Ms. Barbara Elaine Rosenberg Mr. Thomas Andrew Saenz Mr. Edgar Saldivar Mr. John Paul Salmon Mr. Jose F. Sanchez Mr. Dan Satterberg Mr. Andre Segura Mr. Michael Siegel Mr. Edward N. Siskel Mr. Carlos Ramon Soltero Mr. Scott Stewart Mr. Cory David Szczepanik Ms. Sherine Elizabeth Thomas Mr. Charles W. Thompson Jr. Ms. Laura S. Trice Mr. Luis Roberto Vera Jr. Mr. John K. Warren Ms. Robin Eve Wechkin Mr. Eric A. White Mr. Brent Scott Wible Ms. Allie Wilson Mr. Richard Paul Yetter Ms. Donna R. Ziegler

 
 General Docket United States Court of Appeals for the Fifth Circuit

Court of Appeals Docket #: 17-50763 Nature of Suit: 3440 Other Civil Rights Texas, et al v. Travis County, Texas, et al Appeal From: Western District of Texas, Austin Fee Status: Fee Paid

Docketed: 09/05/2017 Termed: 12/12/2018

Case Type Information: 1) Civil Rights 2) Private 3)

Originating Court Information:

District: 0542-1 : 1:17-CV-425

Originating Judge: Sam Sparks, U.S. District Judge

Date Filed: 05/07/2017

Date NOA Filed:

Date Rec'd COA:

08/31/2017

09/01/2017

Prior Cases: None

Current Cases: Lead
Related 17-50762

Member 17-50763

Start

End

09/08/2017

Panel Assignment: Panel: TMR JWE SAH Date of Hearing: 11/05/2018

Date of Decision: 12/12/2018

Date Completed: 12/12/2018

TEXAS

Plaintiff - Appellant

John Clay Sullivan Email: john.sullivan@oag.texas.gov [COR LD NTC Government] Office of the Attorney General Office of the Solicitor General P.O. Box 12548 Austin, TX 78711
David J. Hacker Direct: 512-936-2330 Email: david.hacker@oag.texas.gov Fax: 512-936-2548 [COR NTC Government]

KEN PAXTON, in his official capacity as Texas Attorney General
Plaintiff - Appellant
v. TRAVIS COUNTY, TEXAS
Defendant - Appellee

Office of the Attorney General of Texas Environmental Protection Division Suite MC 001 P.O. Box 12548 Austin, TX 78711-2548
John Clay Sullivan [COR LD NTC Government] (see above)
David J. Hacker Direct: 512-936-2330 [COR NTC Government] (see above)
Sherine Elizabeth Thomas, Assistant County Attorney Direct: 512-854-9513 Email: sherine.thomas@traviscountytx.gov Fax: 512-854-4808 [COR LD NTC Government] County Attorney's Office for the County of Travis Attn. Litigation Div P.O. Box 1748 Austin, TX 78767
Laurie R. Eiserloh Direct: 512-854-6906 Email: laurie.eiserloh@traviscountytx.gov Fax: 512-854-4808 [COR NTC Government] County Attorney's Office for the County of Travis P.O. Box 1748 Austin, TX 78767
Anthony J. Nelson, Assistant County Attorney Direct: 512-854-9513 Email: tony.nelson@traviscountytx.gov Fax: 512-854-4808 [COR NTC Government]

County Attorney's Office for the County of Travis P.O. Box 1748 Austin, TX 78767

SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas
Defendant - Appellee

Sherine Elizabeth Thomas, Assistant County Attorney Direct: 512-854-9513 [COR LD NTC Government] (see above)
Laurie R. Eiserloh Direct: 512-854-6906 [COR NTC Government] (see above)
Anthony J. Nelson, Assistant County Attorney Direct: 512-854-9513 [COR NTC Government] (see above)

CITY OF AUSTIN, TEXAS Defendant - Appellee

Michael Siegel Direct: 512-974-2888 Email: michael.siegel@austintexas.gov Fax: 512-974-1311 [COR LD NTC Government] City of Austin Law Department, Litigation Division P.O. Box 1546 Austin, TX 78767-1546

Christopher Coppola, Attorney Direct: 512-974-2888 Email: christopher.coppola@austintexas.gov [COR NTC Government] City of Austin Law Department, Litigation Division P.O. Box 1546 Austin, TX 78767-1546

ORA HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)
Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)
Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)
Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ALISON ALTER, in her official capacity as City Council Member of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)
Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas
Defendant - Appellee

Michael Siegel Direct: 512-974-2888 [COR LD NTC Government] (see above)

Christopher Coppola, Attorney Direct: 512-974-2888 [COR NTC Government] (see above)

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND Terminated: 05/25/2018
Defendant - Appellee

EL PASO COUNTY, TEXAS Defendant - Appellee

Jose Garza Email: garzpalm@aol.com [COR LD NTC Retained] Garza Golando Moran, P.L.L.C. 405 N. Saint Mary's Street San Antonio, TX 78205

RICHARD WILES, in his official capacity as Jose Garza

Sheriff of El Paso County, Texas

[COR LD NTC Retained]

Defendant - Appellee

(see above)

CITY OF EL CENIZO, TEXAS Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 Email: lgelernt@aclu.org

Fax: 212-549-2654 [COR LD NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 18th Floor 125 Broad Street New York, NY 10004-0000
Spencer Amdur Direct: 415-343-1198 Email: samdur@aclu.org Fax: 415-395-0950 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Renea Hicks Direct: 512-480-8231 Email: rhicks@renea-hicks.com [COR NTC Retained] Law Office of Renea Hicks P.O. Box 303187 Austin, TX 78703-3187
Omar C. Jadwat Direct: 212-549-2620 Email: ojadwat@aclu.org Fax: 212-549-2654 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 18th Floor 125 Broad Street New York, NY 10004-0000
Edgar Saldivar Direct: 713-942-8146 Email: ESaldivar@aclutx.org Fax: 713-942-8966 [COR NTC Retained] American Civil Liberties Union of Texas Suite 250 1500 McGowen Street

Houston, TX 77004
Andre Segura Email: asegura@aclutx.org [COR NTC Retained] American Civil Liberties Union of Texas 1500 McGowen Street Houston, TX 77004
Trisha Trigilio Direct: 713-942-8146 Email: ttrigilio@aclutx.org Fax: 713-942-8966 [NTC Retained] American Civil Liberties Union of Texas Suite 250 1500 McGowen Street Houston, TX 77004

Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 Email: lrvlaw@sbcglobal.net Fax: 210-225-2060 [NTC Retained] Law Offices of Luis Roberto Vera, Jr. & Associates Suite 1325 111 Soledad Street San Antonio, TX 78205-0000

Cody Wofsy Direct: 415-343-0785 Email: cwofsy@aclu.org [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111

RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas
Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)

Spencer Amdur

MAVERICK COUNTY, TEXAS Defendant - Appellee

Direct: 415-343-1198 [COR NTC Retained] (see above)
Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)
Spencer Amdur Direct: 415-343-1198

[COR NTC Retained] (see above)

Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)

Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)

Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)

Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)

TOM SCHMERBER, in his official capacity as Sheriff of Maverick County, Texas
Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)

Spencer Amdur Direct: 415-343-1198 [COR NTC Retained]

MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas
Defendant - Appellee

(see above)
Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)
Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)

TEXAS ORGANIZING PROJECT EDUCATION FUND
Defendant - Appellee

Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)
Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)
Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)
Andre Segura [COR NTC Retained] (see above)
Trisha Trigilio Direct: 713-942-8146 [NTC Retained] (see above)
Luis Roberto Vera, Jr., Esq. Direct: 210-225-3300 [NTC Retained] (see above)
Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
Efren Carlos Olivares Direct: 956-787-8171 Email: efren@texascivilrightsproject.org Fax: 956-787-6348 [COR LD NTC Retained] South Texas Civil Rights Project P.O. Box 219 Alamo, TX 78516
Mimi Murray Digby Marziani

Direct: 512-474-5073 Email: mimi@texascivilrightsproject.org Fax: 512-474-0726 [NTC Retained] Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741-3438

LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Defendant - Appellee

Lee P. Gelernt, Esq. Direct: 212-549-2616 [COR LD NTC Retained] (see above)

Spencer Amdur Direct: 415-343-1198 [COR NTC Retained] (see above)

Renea Hicks Direct: 512-480-8231 [COR NTC Retained] (see above)

Omar C. Jadwat Direct: 212-549-2620 [COR NTC Retained] (see above)

Edgar Saldivar Direct: 713-942-8146 [COR NTC Retained] (see above)

Andre Segura [COR NTC Retained] (see above)

Cody Wofsy Direct: 415-343-0785 [COR NTC Retained] (see above)
TEXAS; KEN PAXTON, in his official capacity as Texas Attorney General,
Plaintiffs - Appellants

v.
TRAVIS COUNTY, TEXAS; SALLY HERNANDEZ, in her official capacity as Sheriff of Travis County, Texas; CITY OF AUSTIN, TEXAS; ORA HOUSTON, in her official capacity as City Council Member of the City of Austin, Texas; DELIA GARZA, in her official capacity as City Council Member of the City of Austin, Texas; SABINO RENTERIA, in his official capacity as City Council Member of the City of Austin, Texas; GREGORIO CASAR, in his official capacity as City Council Member of the City of Austin, Texas; ANN KITCHEN, in her official capacity as City Council Member of the City of Austin, Texas; JIMMY FLANNIGAN, in his official capacity as City Council Member of the City of Austin, Texas; LESLIE POOL, in her official capacity as City Council Member of the City of Austin, Texas; ELLEN TROXCLAIR, in her official capacity as City Council Member of the City of Austin, Texas; KATHIE TOVO, in her official capacity as City Council Member of the City of Austin, Texas; ALISON ALTER, in her official capacity as City Council Member of the City of Austin, Texas; STEVE ADLER, in his official capacity as Mayor of the City of Austin, Texas; ELAINE HART, in her official capacity as Interim City Manager of the City of Austin, Texas; EL PASO COUNTY, TEXAS; RICHARD WILES, in his official capacity as Sheriff of El Paso County, Texas; CITY OF EL CENIZO, TEXAS; RAUL L. REYES, in his official capacity as Mayor of El Cenizo, Texas; MAVERICK COUNTY, TEXAS; TOM SCHMERBER, in his official capacity as Sheriff of Maverick County, Texas; MARIO A. HERNANDEZ, in his official capacity as Constable Precinct 3-1 of Maverick County, Texas; TEXAS ORGANIZING PROJECT EDUCATION FUND; LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
Defendants - Appellees

09/05/2017
2 pg, 85.43 KB

CIVIL RIGHTS CASE docketed. NOA filed by Appellants Mr. Ken Paxton and Texas [17-50763] (NFD) [Entered: 09/05/2017 11:20 AM]

09/11/2017
1 pg, 640.5 KB

COURT REPORTER ACKNOWLEDGEMENT received from Lily Iva Reznik. A 17-CV-425 SS [17-50763] (Lily Iva Reznik ) [Entered: 09/11/2017 09:08 AM]

09/11/2017

APPEARANCE FORM John Sullivan for the court's review. Lead

1 pg, 121.82 KB Counsel? Yes. [17-50763] (John Clay Sullivan ) [Entered:

09/11/2017 01:00 PM]

09/11/2017
1 pg, 160.94 KB

APPEARANCE FORM received from Mr. Renea Hicks for League of United Latin American Citizens, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez and Maverick County, Texas for the court's review. Lead Counsel? No. [17-50763] (Renea Hicks ) [Entered: 09/11/2017 05:13 PM]

09/12/2017

APPEARANCE FORM Michael Siegel for the court's review.

1 pg, 151.05 KB Lead Counsel? Yes. [17-50763] (Michael Siegel ) [Entered:

09/12/2017 01:12 PM]

09/13/2017
3 pg, 147.49 KB

INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process. [8589880-2] Initial AA Check Due satisfied.. Fee due on 09/28/2017 for Appellants Ken Paxton and Texas [1750763] (PAC) [Entered: 09/13/2017 01:53 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney(s) John Clay Sullivan for party(s) Appellant Texas Appellant Ken Paxton, in case 1750763 [17-50763] (PAC) [Entered: 09/13/2017 02:15 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney Renea Hicks for Appellee League of United Latin American Citizens in 17-50763, Attorney Renea Hicks for Appellee Mario A. Hernandez in 1750763, Attorney Renea Hicks for Appellee Tom Schmerber in 1750763, Attorney Renea Hicks for Appellee Maverick County, Texas in 17-50763, Attorney Renea Hicks for Appellee Raul L. Reyes in 17-50763, Attorney Renea Hicks for Appellee City of El Cenizo, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/13/2017 02:18 PM]

09/13/2017

APPEARANCE FORM FILED by Attorney(s) Michael Siegel for party(s) Appellee City of Austin, Texas, in case 17-50763 [1750763] (PAC) [Entered: 09/13/2017 02:20 PM]

09/14/2017
1 pg, 68.39 KB

APPEARANCE FORM for Sherine E. Thomas for the court's review. Lead Counsel? Yes. [17-50763] (Sherine Elizabeth Thomas ) [Entered: 09/14/2017 02:58 PM]

09/14/2017
1 pg, 67.94 KB

APPEARANCE FORM received from Mr. Anthony J. Nelson for Travis County, Texas and Ms. Sally Hernandez for the court's review. Lead Counsel? No. [17-50763] (Anthony J. Nelson ) [Entered: 09/14/2017 03:04 PM]

09/14/2017
1 pg, 60.86 KB

APPEARANCE FORM for Larie R. Eiserloh for the court's review. Lead Counsel? No. [17-50763] (Laurie R. Eiserloh ) [Entered: 09/14/2017 03:07 PM]

09/14/2017
1 pg, 73.72 KB

APPEARANCE FORM for Timothy R. Labadie for the court's review. Lead Counsel? No. [17-50763] (Timothy Robert Labadie ) [Entered: 09/14/2017 03:12 PM]

09/15/2017

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 142.97 KB [17-50763] (Edgar Saldivar ) [Entered: 09/15/2017 01:49 PM]

09/15/2017

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 133.67 KB [17-50763] (Andre Segura ) [Entered: 09/15/2017 01:50 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney Anthony J. Nelson for Appellee Sally Hernandez in 17-50763, Attorney Anthony J. Nelson for Appellee Travis County, Texas in 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:12 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney(s) Sherine Elizabeth Thomas for party(s) Appellee Travis County, Texas Appellee Sally

Hernandez, in case 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:18 PM]

09/18/2017

APPEARANCE FORM FILED by Attorney(s) Laurie R. Eiserloh for party(s) Appellee Travis County, Texas Appellee Sally Hernandez, in case 17-50763 [17-50763] (LEF) [Entered: 09/18/2017 04:24 PM]

09/19/2017
1 pg, 75.22 KB

Attorney Andre Segura is advised to resubmit an appearance form using the correct short title. [17-50763] (LBM) [Entered: 09/19/2017 10:53 AM]

09/19/2017

APPEARANCE FORM FILED by Attorney Efren Carlos Olivares for Appellee Texas Organizing Project Education Fund in 1750763 [17-50763] (MRW) [Entered: 09/19/2017 12:04 PM]

09/19/2017
1 pg, 59.11 KB

APPEARANCE FORM received from Mr. Jose Garza for El Paso County, Texas and Mr. Richard Wiles for the court's review. Lead Counsel? Yes. [17-50763] (Jose Garza ) [Entered: 09/19/2017 12:17 PM]

09/19/2017
1 pg, 43.17 KB

APPEARANCE FORM Resubmitted for the court's review. Lead Counsel? No. [17-50763] (Andre Segura ) [Entered: 09/19/2017 12:27 PM]

09/19/2017
1 pg, 76.46 KB

Attorney Edgar Saldivar is advised to resubmit an appearance form using the correct short title. [17-50763] (LBM) [Entered: 09/19/2017 12:56 PM]

09/20/2017
1 pg, 55.04 KB

APPEARANCE FORM received from Mr. Michael Patrick Moran for El Paso County, Texas and Mr. Richard Wiles for the court's review. Lead Counsel? No. [17-50763] (Michael Patrick Moran ) [Entered: 09/20/2017 11:48 AM]

09/20/2017

APPEARANCE FORM Lee Gelernt for the court's review. Lead

1 pg, 107.58 KB Counsel? Yes. [17-50763] (Lee P. Gelernt ) [Entered: 09/20/2017

02:30 PM]

09/20/2017
1 pg, 43.92 KB

APPEARANCE FORM Resubmitted for the court's review. Lead Counsel? No. [17-50763] (Edgar Saldivar ) [Entered: 09/20/2017 08:02 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney Jose Garza for Appellee Richard Wiles in 17-50763, Attorney Jose Garza for Appellee El Paso County, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 11:59 AM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Andre Segura for party(s) Appellee City of El Cenizo, Texas Appellee Mario A.

Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 12:02 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney Michael Patrick Moran for Appellee Richard Wiles in 17-50763, Attorney Michael Patrick Moran for Appellee El Paso County, Texas in 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 12:05 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Lee P. Gelernt for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 12:08 PM]

09/21/2017

APPEARANCE FORM FILED by Attorney(s) Edgar Saldivar for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (PAC) [Entered: 09/21/2017 12:10 PM]

09/21/2017
1 pg, 219.67 KB

DOCUMENT RECEIVED - NO ACTION TAKEN. No action will be taken at this time on the appearance form received 9/19/17 from Efren Carlos Olivares because it's a duplicate form [17-50763] (PAC) [Entered: 09/21/2017 12:12 PM]

09/22/2017

APPEARANCE FORM Austin Nimocks for the court's review.

1 pg, 173.74 KB Lead Counsel? No. [17-50763] (David Austin Robert Nimocks )

[Entered: 09/22/2017 09:38 AM]

09/22/2017

APPEARANCE FORM David Hacker for the court's review. Lead

1 pg, 165.99 KB Counsel? No. [17-50763] (David J. Hacker ) [Entered: 09/22/2017

09:41 AM]

09/25/2017
1 pg, 72.12 KB

Attorney David Austin Robert Nimocks is advised to resubmit an appearance form using the correct case number. Also, the address listed on your appearance form does not match that which is listed in our records. . [17-50763] (LBM) [Entered: 09/25/2017 02:04 PM]

09/26/2017

APPEARANCE FORM FILED by Attorney(s) David J. Hacker for party(s) Appellant Texas Appellant Ken Paxton, in case 17-50763 [17-50763] (CNF) [Entered: 09/26/2017 11:12 AM]

09/26/2017

APPEARANCE FORM David Austin Nimocks for the court's

1 pg, 202.18 KB review. Lead Counsel? No. [17-50763] (David Austin Robert

Nimocks ) [Entered: 09/26/2017 01:55 PM]

09/27/2017

APPEARANCE FORM FILED by Attorney(s) David Austin Robert Nimocks for party(s) Appellant Texas Appellant Ken Paxton, in case 17-50763 [17-50763] (NFD) [Entered: 09/27/2017 03:41 PM]

10/09/2017

FEE PAID by Appellants Mr. Ken Paxton and Texas. Fee deadline satisfied [17-50763] (MVM) [Entered: 10/09/2017 03:14 PM]

10/10/2017

ELECTRONIC RECORD ON APPEAL REQUESTED FROM DISTRICT COURT for 1:17-CV-425. Electronic ROA due on 10/25/2017. [17-50763] (MVM) [Entered: 10/09/2017 03:15 PM]

10/26/2017

ELECTRONIC RECORD ON APPEAL FILED. Exhibits on File in District Court? No. Electronic ROA deadline satisfied. [1750763] (MRB) [Entered: 10/26/2017 02:34 PM]

10/26/2017
5 pg, 93.88 KB

BRIEFING NOTICE ISSUED A/Pet's Brief Due on 12/05/2017 for Appellants Ken Paxton and Texas. [17-50763] (MRB) [Entered: 10/26/2017 02:35 PM]

11/27/2017
4 pg, 51.97 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend time to file brief as appellant until 12/19/2017 [8646709-2]. Date of service: 11/27/2017 [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend time to file brief as appellant until 12/19/2017 at 11:59 pm [8646709-2]. Date of service: 11/27/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail Attorney for Appellees: Champion, Marziani [17-50763] (John Clay Sullivan ) [Entered: 11/27/2017 05:03 PM]

11/28/2017
1 pg, 131.23 KB

CLERK ORDER granting unopposed motion to extend time to file appellant's brief filed by Appellants Mr. Ken Paxton and Texas [8646709-2] A/Pet's Brief deadline updated to 12/19/2017 for Appellants Ken Paxton and Texas [17-50763] (CMB) [Entered: 11/28/2017 09:39 AM]

12/19/2017

SUFFICIENT RECORD EXCERPTS FILED. Sufficient Record

44 pg, 876.97 KB Excerpts deadline satisfied. Paper Copies of Record Excerpts due

on 01/09/2018 for Appellants Ken Paxton and Texas. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: RECORD EXCERPTS FILED. Record Excerpts NOT Sufficient as they require table of contents do not include the proper citations to the record on appeal. Instructions to Attorney: PLEASE READ THE ATTACHED NOTICE FOR INSTRUCTIONS ON HOW TO REMEDY THE DEFAULT. # of Copies Provided: 0 Sufficient Record Excerpts due on 01/05/2018 for Appellants Ken Paxton and Texas [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: RECORD EXCERPTS FILED by Appellants Mr. Ken Paxton and Texas. Record Excerpts Date of service: 12/19/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail Attorney for Appellees: Champion, Marziani [17-50763] (John Clay Sullivan ) [Entered: 12/19/2017 10:53 PM]

12/19/2017

APPELLANT'S BRIEF FILED # of Copies Provided: 0

55 pg, 436.83 KB A/Pet's Brief deadline satisfied. Appellee's Brief due on

01/18/2018 for Appellees Steve Adler, Alison Alter, Gregorio

Casar, City of Austin, Texas, City of El Cenizo, Texas, El Paso

County, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Mario

A. Hernandez, Sally Hernandez, Ora Houston, Ann Kitchen,

League of United Latin American Citizens, Maverick County,

Texas, Mexican American Legal Defense and Education Fund,

Leslie Pool, Sabino Renteria, Raul L. Reyes, Tom Schmerber,

Texas Organizing Project Education Fund, Kathie Tovo, Travis

County, Texas, Ellen Troxclair and Richard Wiles. Paper Copies of

Brief due on 12/27/2017 for Appellants Ken Paxton and Texas.

[17-50763]

REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: APPELLANT'S BRIEF FILED by Mr. Ken

Paxton and Texas. 12/19/2017 Date of service: 12/19/2017 via

email - Attorney for Appellants: Hacker, McCarty, Nimocks,

Sullivan; Attorney for Appellees: Bono, Coppola, Dummer,

Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson, Olivares, Saldivar,

Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail -

Attorney for Appellees: Champion, Marziani [17-50763] (John

Clay Sullivan ) [Entered: 12/19/2017 11:09 PM]

12/29/2017
0 pg, 0 KB

PROPOSED SUFFICIENT RECORD EXCERPTS filed by Appellants Mr. Ken Paxton and Texas in 17-50763 [86634232] Proposed sufficient Record Excerpts Date of service: 12/29/2017 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson,

Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera; US mail - Attorney for Appellees: Champion, Marziani [1750763] (John Clay Sullivan ) [Entered: 12/29/2017 02:50 PM]

01/02/2018

Paper copies of Appellant Brief filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (NFD) [Entered: 01/02/2018 03:07 PM]

01/05/2018
5 pg, 29.14 KB

UNOPPOSED MOTION filed by Appellees Steve Adler, Alison Alter, Gregorio Casar, City of Austin, Texas, City of El Cenizo, Texas, El Paso County, Texas, Jimmy Flannigan, Delia Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez, Ora Houston, Ann Kitchen, League of United Latin American Citizens, Maverick County, Texas, Leslie Pool, Sabino Renteria, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Travis County, Texas, Kathie Tovo, Ellen Troxclair and Richard Wiles to extend time to file brief of appellees until 02/20/2018 [8672635-2]. Date of service: 01/05/2018 [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellee City of Austin, Texas for filing Defendants-Appellees' Briefs until 02/20/2018. [17-50763] (Michael Siegel ) [Entered: 01/05/2018 08:13 AM]

01/05/2018
1 pg, 129.87 KB

CLERK ORDER granting in part Motion filed by Appellees Appellees El Paso County, Texas, Travis County, Texas, City of Austin, Texas, League of United Latin American Citizens, Mr. Richard Wiles, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas to extend time to file brief [8672635-2] E/Res's Brief deadline updated to 02/16/2018 for Appellees City of Austin, Texas, City of El Cenizo, Texas, El Paso County, Texas, Mario A. Hernandez, Sally Hernandez, League of United Latin American Citizens, Maverick County, Texas, Raul L. Reyes, Tom Schmerber, Texas Organizing Project Education Fund, Travis County, Texas, Richard Wiles, Steve Adler, Alison Alter, Gregorio Casar, Jimmy Flannigan, Delia Garza, Elaine Hart, Ora Houston, Ann Kitchen, Leslie Pool, Sabino Renteria, Kathie Tovo and Ellen Troxclair [17-50763] (CMB) [Entered: 01/05/2018 12:40 PM]

01/08/2018
2 pg, 144.94 KB

Paper copies of Record Excerpts filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes - However, need physical tabs that extend beyond the documents # of Copies Provided: 4. Paper Copies of Record Excerpts due deadline satisfied.. Sufficient Paper Copies of Record Excerpts Due on 01/16/2018 for Appellants Ken Paxton and Texas. [17-50763] (NFD) [Entered: 01/09/2018 11:20 AM]

01/29/2018
2 pg, 133.59 KB

NOTICE ISSUED TO APPELLEE - Brief is overdue. Motion to file brief out of time due on 02/08/2018 for Appellee Mexican American Legal Defense and Education Fund [17-50763] (CMB) [Entered: 01/29/2018 02:34 PM]

01/29/2018
2 pg, 133.81 KB

DISMISSAL NOTICE ISSUED for failure to submit sufficient paper copies of the record excerpts [8690819-2] DIS-1 Remedy due on 02/05/2018 for Appellants Ken Paxton and Texas. [1750763] (CMB) [Entered: 01/29/2018 03:04 PM]

01/30/2018

Paper copies of Record Excerpts [8675416-2] received as sufficient. Sufficient Paper Copies of Record Excerpts due deadline satisfied. [17-50763] (NFD) [Entered: 02/01/2018 07:58 AM]

02/01/2018

APPEARANCE FORM received from Mr. Michael Siegel for City

1 pg, 111.72 KB of Austin, Texas for the court's review. Lead Counsel? Yes. [17-

50763] (Michael Siegel ) [Entered: 02/01/2018 10:08 AM]

02/01/2018
1 pg, 104.84 KB

APPEARANCE FORM received from Mr. Christopher Coppola for City of Austin, Texas, Mr. Steve Adler, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter and Ms. Elaine Hart for the court's review. Lead Counsel? No. [17-50763] (Christopher Coppola ) [Entered: 02/01/2018 10:13 AM]

02/01/2018
1 pg, 111.72 KB

APPEARANCE FORM received from Mr. Michael Siegel for City of Austin, Texas Ora Houston, Delia Garza, Ann Kitchen, Sabino Renteria, Gregorio Casar, Jimmy Flannigan, Leslie Pool, Ellen Troxclair, Kathie Tovo, Alison Alter, Steve Adler, and Elaine Hart for the court's review. Lead Counsel? Yes. [17-50763] (Michael Siegel ) [Entered: 02/01/2018 10:26 AM]

02/02/2018

APPEARANCE FORM FILED by Attorney Christopher Coppola for Appellee Elaine Hart in 17-50763, Attorney Christopher Coppola for Appellee Steve Adler in 17-50763, Attorney Christopher Coppola for Appellee Alison Alter in 17-50763, Attorney Christopher Coppola for Appellee Kathie Tovo in 17-

50763, Attorney Christopher Coppola for Appellee Ellen Troxclair in 17-50763, Attorney Christopher Coppola for Appellee Leslie Pool in 17-50763, Attorney Christopher Coppola for Appellee Jimmy Flannigan in 17-50763, Attorney Christopher Coppola for Appellee Ann Kitchen in 17-50763, Attorney Christopher Coppola for Appellee Gregorio Casar in 17-50763, Attorney Christopher Coppola for Appellee Sabino Renteria in 17-50763, Attorney Christopher Coppola for Appellee Delia Garza in 17-50763, Attorney Christopher Coppola for Appellee Ora Houston in 1750763, Attorney Christopher Coppola for Appellee City of Austin, Texas in 17-50763 [17-50763] (PAC) [Entered: 02/02/2018 09:39 AM]

02/02/2018

APPEARANCE FORM FILED by Attorney Michael Siegel for Appellee City of Austin, Texas in 17-50763, by Attorney(s) Michael Siegel for party(s) Appellee Ann Kitchen Appellee Gregorio Casar Appellee Jimmy Flannigan Appellee Leslie Pool Appellee Ora Houston Appellee Elaine Hart Appellee Delia Garza Appellee Ellen Troxclair Appellee Steve Adler Appellee Kathie Tovo Appellee Alison Alter Appellee Sabino Renteria, in case 1750763 [17-50763] (PAC) [Entered: 02/02/2018 09:41 AM]

02/12/2018
2 pg, 138.42 KB

FILING OVERDUE BRIEF NOTICE dated 01/29/2018 issued to Appellee Mexican American Legal Defense and Education Fund. No response received. E/Res's Brief deadline canceled. Motion due deadline satisfied. [17-50763] (CMB) [Entered: 02/12/2018 07:38 AM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.39 KB [17-50763] (Spencer Amdur ) [Entered: 02/14/2018 05:31 PM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.37 KB [17-50763] (Cody Wofsy ) [Entered: 02/14/2018 05:48 PM]

02/14/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.4 KB [17-50763] (Omar C. Jadwat ) [Entered: 02/14/2018 05:53 PM]

02/16/2018

Attorney Spencer Amdur is advised to resubmit an appearance

1 pg, 128.75 KB form using the correct short title. [17-50763] (LBM) [Entered:

02/16/2018 09:03 AM]

02/16/2018
1 pg, 128.5 KB

Attorney Cody Wofsy is advised to resubmit an appearance form using the correct short title. [17-50763] (LBM) [Entered: 02/16/2018 09:39 AM]

02/16/2018

Attorney Omar Jadwat is advised to resubmit an appearance form

1 pg, 129.22 KB using the correct short title [17-50763] (LBM) [Entered:

02/16/2018 10:33 AM]

02/16/2018

SUFFICIENT APPELLEE'S BRIEF FILED Sufficient Brief

60 pg, 688.99 KB deadline satisfied. Paper Copies of Brief due on 03/05/2018 for

Appellees Steve Adler, Alison Alter, Gregorio Casar, City of

Austin, Texas, City of El Cenizo, Texas, Jimmy Flannigan, Delia

Garza, Elaine Hart, Mario A. Hernandez, Sally Hernandez, Ora

Houston, Ann Kitchen, League of United Latin American Citizens,

Maverick County, Texas, Leslie Pool, Sabino Renteria, Raul L.

Reyes, Tom Schmerber, Texas Organizing Project Education Fund,

Kathie Tovo, Travis County, Texas and Ellen Troxclair. [17-

50763]

REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: APPELLEE'S BRIEF FILED by Mr. Steve

Adler, Ms. Alison Alter, Mr. Gregorio Casar, City of Austin,

Texas, Mr. Jimmy Flannigan, Ms. Delia Garza, Ms. Elaine Hart,

Ms. Sally Hernandez, Ms. Ora Houston, Ms. Ann Kitchen, Ms.

Leslie Pool, Mr. Sabino Renteria, Texas Organizing Project

Education Fund, Ms. Kathie Tovo, Travis County, Texas and Ms.

Ellen Troxclair. Brief is INSUFFICIENT: Incorrect Caption.

Instructions to Attorney: PLEASE READ THE ATTACHED

NOTICE FOR INSTRUCTIONS ON HOW TO REMEDY THE

DEFAULT. E/Res's Brief deadline satisfied. Sufficient Brief due

on 03/07/2018 for Appellees Steve Adler, Alison Alter, Gregorio

Casar, City of Austin, Texas, City of El Cenizo, Texas, Jimmy

Flannigan, Delia Garza, Elaine Hart, Mario A. Hernandez, Sally

Hernandez, Ora Houston, Ann Kitchen, League of United Latin

American Citizens, Maverick County, Texas, Leslie Pool, Sabino

Renteria, Raul L. Reyes, Tom Schmerber, Texas Organizing

Project Education Fund, Kathie Tovo, Travis County, Texas and

Ellen Troxclair.. Reply Brief due on 03/02/2018 for Appellants

Ken Paxton and Texas [17-50763] REVIEWED AND/OR

EDITED - The original text prior to review appeared as follows:

APPELLEE'S BRIEF FILED by City of El Cenizo, Texas, Mr.

Mario A. Hernandez, League of United Latin American Citizens,

Maverick County, Texas, Mr. Raul L. Reyes and Mr. Tom

Schmerber. Travis County, Texas, Sally Hernandez, City of Austin,

Texas, Ora Houston, Delia Garza, Sabino Renteria, Gregorio

Cesar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Ellen

Troxclair, Kathie Tovo, Alison Alter, Steve Adler, Elaine Hart,

TOPAF. Date of service: 02/16/2018 via email - Attorney for

Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for

Appellees: Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt,

Hicks, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel,

Thomas, Trigilio, Vera; US mail - Attorney for Appellees:

Champion, Marziani [17-50763] (Lee P. Gelernt ) [Entered:

02/16/2018 04:55 PM]

02/16/2018

SUFFICIENT APPELLEE'S BRIEF FILED Sufficient Brief

51 pg, 646.78 KB deadline satisfied. Paper Copies of Brief due on 03/05/2018 for

Appellees El Paso County, Texas and Richard Wiles. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: APPELLEE'S BRIEF FILED Brief is

INSUFFICIENT: brief needs Mr. Moran signature as he is the one

who electronically filed the brief.. Instructions to Attorney:

PLEASE READ THE ATTACHED NOTICE FOR

INSTRUCTIONS ON HOW TO REMEDY THE DEFAULT.

E/Res's Brief deadline satisfied. Sufficient Brief due on 03/07/2018

for Appellees El Paso County, Texas and Richard Wiles. [17-

50763] REVIEWED AND/OR EDITED - The original text prior to

review appeared as follows: APPELLEE'S BRIEF FILED by El

Paso County, Texas and Mr. Richard Wiles. Date of service:

02/16/2018 via email - Attorney for Appellants: Hacker, McCarty,

Nimocks, Sullivan; Attorney for Appellees: Bono, Coppola,

Dummer, Eiserloh, Garza, Gelernt, Hicks, Moran, Nelson,

Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio,

Vera; US mail - Attorney for Appellees: Champion, Marziani [17-

50763] (Michael Patrick Moran ) [Entered: 02/16/2018 08:46 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.44 KB [17-50763] (Omar C. Jadwat ) [Entered: 02/20/2018 04:55 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.41 KB [17-50763] (Cody Wofsy ) [Entered: 02/20/2018 04:57 PM]

02/20/2018

APPEARANCE FORM for the court's review. Lead Counsel? No.

1 pg, 107.41 KB [17-50763] (Spencer Amdur ) [Entered: 02/20/2018 05:02 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Omar C. Jadwat for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (NFD) [Entered: 02/21/2018 04:02 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Cody Wofsy for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County, Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (NFD) [Entered: 02/21/2018 04:04 PM]

02/21/2018

APPEARANCE FORM FILED by Attorney(s) Spencer Amdur for party(s) Appellee City of El Cenizo, Texas Appellee Mario A. Hernandez Appellee Tom Schmerber Appellee Maverick County,

02/21/2018
0 pg, 0 KB
02/22/2018
0 pg, 0 KB
02/28/2018
4 pg, 57.46 KB
03/01/2018
1 pg, 141.4 KB
03/02/2018

Texas Appellee Raul L. Reyes Appellee League of United Latin American Citizens, in case 17-50763 [17-50763] (NFD) [Entered: 02/21/2018 04:05 PM]
PROPOSED SUFFICIENT BRIEF filed by Appellees Travis County, Texas, City of Austin, Texas, League of United Latin American Citizens, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas in 17-50763 [8705673-2] Date of service: 02/21/2018 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Champion, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; US mail Attorney for Appellees: Champion, Marziani [17-50763] (Lee P. Gelernt ) [Entered: 02/21/2018 06:22 PM]
PROPOSED SUFFICIENT BRIEF filed by Appellees El Paso County, Texas and Mr. Richard Wiles in 17-50763 [8705701-2] Date of service: 02/22/2018 via email - Attorney for Appellants: Hacker, McCarty, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Champion, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (Michael Patrick Moran ) [Entered: 02/22/2018 02:06 PM]
UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas, to extend time to file reply brief until 03/16/2018 [87147392]. Date of service: 02/28/2018 [17-50763] REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellants Mr. Ken Paxton and Texas for filing Appellants' Reply Brief until 03/16/2018 at 11:59 pm JCS. [1750763] (John Clay Sullivan ) [Entered: 02/28/2018 01:51 PM]
CLERK ORDER granting Motion to extend time to file reply brief filed by Appellants Mr. Ken Paxton and Texas [8714739-2] Reply Brief deadline updated to 03/16/2018 for Appellants Ken Paxton and Texas [17-50763] (MVM) [Entered: 03/01/2018 03:41 PM]
Paper copies of Appellee Brief filed by Appellees Travis County, Texas, City of Austin, Texas, League of United Latin American

Citizens, Mr. Steve Adler, City of El Cenizo, Texas, Mr. Raul L. Reyes, Mr. Tom Schmerber, Mr. Mario A. Hernandez, Ms. Sally Hernandez, Ms. Ora Houston, Ms. Delia Garza, Mr. Sabino Renteria, Mr. Gregorio Casar, Ms. Ann Kitchen, Mr. Jimmy Flannigan, Ms. Leslie Pool, Ms. Ellen Troxclair, Ms. Kathie Tovo, Ms. Alison Alter, Ms. Elaine Hart, Texas Organizing Project Education Fund and Maverick County, Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (MRW) [Entered: 03/02/2018 12:34 PM]

03/05/2018

Paper copies of Appellee Brief filed by Appellees El Paso County, Texas and Mr. Richard Wiles in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (NFD) [Entered: 03/05/2018 03:45 PM]

03/16/2018

APPELLANT'S REPLY BRIEF FILED # of Copies Provided: 0

30 pg, 340.95 KB Reply Brief deadline satisfied. Paper Copies of Brief due on

04/02/2018 for Appellants Ken Paxton and Texas. [17-50763]

REVIEWED AND/OR EDITED - The original text prior to review

appeared as follows: APPELLANT'S REPLY BRIEF FILED by

Mr. Ken Paxton and Texas. J. Sullivan Date of service: 03/16/2018

via email - Attorney for Appellants: Hacker, McCarty, Nimocks,

Sullivan; Attorney for Appellees: Amdur, Bono, Coppola,

Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson,

Olivares, Saldivar, Sanchez, Segura, Siegel, Thomas, Trigilio,

Vera, Wofsy; US mail - Attorney for Appellees: Champion,

Marziani [17-50763] (John Clay Sullivan ) [Entered: 03/16/2018

04:06 PM]

03/28/2018

Paper copies of Appellant Reply Brief filed by Appellants Mr. Ken Paxton and Texas in 17-50763 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [17-50763] (SDH) [Entered: 04/05/2018 09:23 AM]

04/05/2018

ATTORNEYS NOT PARTICIPATING. Cassandra L. Champion and Darren L. McCarty is designated as inactive in this case. Reason: No Appearance form filed/not listed on brief. [17-50763] (PFT) [Entered: 04/05/2018 11:08 AM]

05/14/2018

APPEARANCE FORM Jack Salmon for the court's review. Lead

1 pg, 107.64 KB Counsel? Yes. [17-50763] (John Paul Salmon ) [Entered:

05/14/2018 04:41 PM]

05/21/2018

APPEARANCE FORM FILED by Attorney(s) John Paul Salmon for party(s) Appellee Mexican American Legal Defense and Education Fund, in case 17-50763 [17-50763] (SDH) [Entered: 05/21/2018 10:04 AM]

05/22/2018
9 pg, 49.77 KB

UNOPPOSED MOTION filed by Appellee Mexican American Legal Defense and Education Fund for partial dismissal of appeal as to Mexican American Legal Defense and Educational Fund. Date of service: 05/22/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Bono, Coppola, Dummer, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Moran, Nelson, Olivares, Saldivar, Salmon, Sanchez, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; US mail - Attorney for Appellee: Marziani [17-50763] (John Paul Salmon ) [Entered: 05/22/2018 09:13 AM]

05/25/2018
4 pg, 178.14 KB

COURT ORDER granting Motion for partial dismissal of appeal filed by Appellee Mexican American Legal Defense and Education Fund [8781591-2] Involvement terminated for Appellee Mexican American Legal Defense and Education Fund in 17-50763. Judge(s): PEH, EHJ and GJC. [17-50763] (MVM) [Entered: 05/25/2018 11:44 AM]

07/09/2018

CASE TENTATIVELY calendared for oral argument for the week

2 pg, 140.68 KB of 09/03/2018. [17-50763] (GAM) [Entered: 07/08/2018 11:13

AM]

07/16/2018
4 pg, 50.99 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas(J. Sullivan) to continue oral argument [8826133-2]. Date of service: 07/16/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (John Clay Sullivan ) [Entered: 07/16/2018 05:40 PM]

07/27/2018

CASE CALENDARED for oral argument on Wednesday, 09/05/2018 in New Orleans in the En Banc Courtroom -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [17-50763] (KMP) [Entered: 07/27/2018 02:43 PM]

08/03/2018

COURT ORDER granting Motion to continue oral argument filed

3 pg, 194.88 KB by Appellants Mr. Ken Paxton and Texas [8826133-2] [17-50763]

(MVM) [Entered: 08/03/2018 07:33 AM]

08/03/2018

CALENDARED CASE CONTINUED. See court order of this date.[17-50763] (GAM) [Entered: 08/03/2018 08:46 AM]

08/03/2018

CASE TENTATIVELY calendared for oral argument for the week

2 pg, 155.47 KB of 11/05/2018. [17-50763] (GAM) [Entered: 08/03/2018 03:39

PM]

09/05/2018
6 pg, 75.33 KB

MOTION filed by Attorney Mr. Michael Patrick Moran for Appellees El Paso County, Texas and Mr. Richard Wiles to withdraw as counsel [8867406-2]. Date of Service: 09/05/2018 via email - Attorney for Appellants: Hacker, Nimocks, Sullivan; Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Moran, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy [17-50763] (Michael Patrick Moran ) [Entered: 09/05/2018 04:05 PM]

09/06/2018

CLERK ORDER granting Motion to withdraw as counsel filed by

1 pg, 155.99 KB Mr. Michael Patrick Moran [8867406-2] [17-50763] (MVM)

[Entered: 09/06/2018 10:58 AM]

09/25/2018

CASE CALENDARED for oral argument on Monday, 11/05/2018 in Houston -- AM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [17-50763] (PFT) [Entered: 09/25/2018 04:07 PM]

10/15/2018

ATTORNEY NOT PARTICIPATING. David Nimocks is designated as inactive in this case. Reason:no longer with AG's office. [17-50763] (MBC) [Entered: 10/15/2018 10:22 AM]

11/05/2018

ORAL ARGUMENT HEARD before Judges Reavley, Elrod, Higginson. Arguing Person Information Updated for: Spencer Amdur arguing for Appellee Texas City of El Cenizo, Appellee Mario A. Hernandez, Appellee League of United Latin American Citizens, Appellee Texas Maverick County, Appellee Raul L. Reyes; Arguing Person Information Updated for: Jose Garza arguing for Appellee Texas El Paso County; Arguing Person Information Updated for: John Clay Sullivan arguing for Appellant Ken Paxton [17-50763] (PFT) [Entered: 11/05/2018 11:09 AM]

12/12/2018

PUBLISHED OPINION FILED. [17-50763 Affirmed ] Judge:

8 pg, 254.85 KB TMR , Judge: JWE , Judge: SAH. Mandate issue date is

01/03/2019 [17-50763] (NFD) [Entered: 12/12/2018 04:33 PM]

12/12/2018
2 pg, 40.07 KB

JUDGMENT ENTERED AND FILED. Costs Taxed Against: plaintiffs-appellants. [17-50763] (NFD) [Entered: 12/12/2018 04:37 PM]

12/19/2018
4 pg, 63.88 KB

UNOPPOSED MOTION filed by Appellants Mr. Ken Paxton and Texas to extend the time to file a rehearing until 01/25/2019 [8946124-2]. Date of service: 12/19/2018 via email - Attorney for Appellees: Amdur, Coppola, Eiserloh, Garza, Gelernt, Hicks, Jadwat, Marziani, Nelson, Olivares, Saldivar, Segura, Siegel, Thomas, Trigilio, Vera, Wofsy; Attorney for Appellants: Hacker, Sullivan [17-50763] (John Clay Sullivan ) [Entered: 12/19/2018 06:09 PM]

12/20/2018
3 pg, 209.89 KB

COURT ORDER granting Motion to extend the time to file a petition for rehearing filed by Appellants Mr. Ken Paxton and Texas [8946124-2] until 01/25/2019 Case Management deadline satisfied.. Mandate issue date updated to 01/28/2019 [17-50763] (MVM) [Entered: 12/20/2018 10:30 AM]

01/28/2019

MANDATE ISSUED. Mandate issue date satisfied. [17-50763]

9 pg, 241.94 KB (DTG) [Entered: 01/28/2019 09:21 AM]

 
 Case 5:17-cv-00404-OLG Document 241 Filed 04/22/19 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

APR 222019

FOR THE WESTERN DISTRICT OF TEXALERL,

SAN ANTONIO DIVISION

WESTER BY

COURT

ELERK

CITY OF EL CENIZO, et al.
Plaintiffs

V
)
CIVIL ACTION NO. 5:1 7-CV-404-OG

[Consolidated/lead case]

STATE OF TEXAS, et. al. Defendants
ORDER
This case involves the constitutionality of Senate Bill 4, which relates to immigration
enforcement by local governmental entities, imposes duties and liabilities on certain persons in the criminal justice system, provides civil penalties, and creates a criminal offense. SB 4 was passed by the 85th Texas legislature, signed into law on May 7, 2017, and became effective on
September 1, 2017. The original complaint in this case was filed by the City of El Cenizo on or about May 8, 2017. Several other plaintiffs subsequentlyjoined in the lawsuit by intervention or
consolidation and the case moved expeditiously to the preliminary injunction stage. At that time, Plaintiffs asserted, inter alia, that SB 4, on its face and as applied, is preempted by federal law and violates the Supremacy Clause, the First Amendment, the Fourteenth Amendment, the Fourth Amendment, the Ninth Amendment, and the Tenth Amendment. They also asserted that
SB 4 violates Section 2 ofthe Voting Rights Act and the Texas Constitution's separation of powers, due course of law, freedom of speech, and home rule provisions. As the Court noted in

Case 5:17-cv-00404-OLG Document 241 Filed 04/22/19 Page 2 of 4

its preliminary injunction order:

Because SB 4 does not take effect until September 1, 2017, the Court has limited its analysis to those claims that may be construed as facial challenges. There are numerous claims that the court does not address, either because it is unnecessary to reach them or because they are "as applied" challenges. The Court's findings herein are preliminary,
based on the "likelihood of success" standard, and may be revised at the merits stage of
the litigation.

Docket no. 189, p. 5.
After an extensive review of the facts and the law, the Court entered a preliminary

injunction enjoining some, but not all, of the law's provisions. Specifically, the Court enjoined

the implementation and enforcement of the following provisions:

1. The enforcement provision in Tex. Gov't Code § 752.053(b)(3) and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under

§ 752.055, 752.056, and 752.0565 arising therefrom; 2. The endorsement prohibition in Tex. Gov't Code § 752.053(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under

§ 752.055, 752.056, and 752.0565 arising therefrom;

3. The prohibition against adoption or enforcement of policies "that materially limit" the enforcement of immigration laws in Tex. Gov't Code § 752.053(a)(1), and any action
(including but not limited to corrective, disciplinary, retaliatory, or punitive action) under

§ 752.05 5, 752.056, and 752.0565 arising therefrom;

4.

The prohibition against a pattern or practice that "materially limits" the

enforcement of immigration laws in Tex. Gov't Code § 752.053(a)(2), and any action

(including but not limited to corrective, disciplinary, retaliatory, or punitive action) under

2

Case 5:17-cv-00404-OLG Document 241 Filed 04/22/19 Page 3 of 4
§ 752.055, 752.056, and 752.0565 arising therefrom; 5. The requirement that law enforcement agencies "comply with, honor, and fulfill" any immigration detainer request issued by United States Immigration and Customs Enforcement, Tex. Code Crim. Proc. Art. 2.25 1(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under Tex. Gov't Code § 752.055, 752.056, and 752.0565; Tex. Loc. Gov't Code § 87.03 1(c); and Tex. Penal Code § 39.07 arising therefrom. Docket no 189. Again, this Court did not reach several claims, did not make findings on the
constitutionality of the statute in its entirety, and did not enter a preliminary injunction enjoining enforcement ofthe statute in its entirety.
The State appealed the injunction, and Plaintiffs cross-appealed the Court's refusal to issue a broader injunction. After considering the issues on appeal, the Fifth Circuit determined "[w]ith one exception, SB4's provisions do not, on their face, violate the Constitution." Docket no. 238, p. 6. The Fifth Circuit further stated "we uphold the statute in its entirety except for the application of the 'endorsement' prohibition, Tex. Gov't Code 752.053(a)(1), to elected officials." Id. at p. 6. In the judgment, the Fifth Circuit affirmed in part this Court's preliminary injunction, vacated "in large part," and "remand[ed] with instructions to dismiss the vacated injunction provisions." Docket no. 238, p. 31 With the other provisions now vacated, the injunction is limited to the endorsement prohibition in Tex. Gov't Code § 752.05 3(a)(1), and any
1 The appeal was decided by a quorum (JONES and SMITH, Circuit Judges) because the third member of
the panel had retired and "did not participate in [the] decision." Id.
3

Case 5:17-cv-00404-OLG Document 241 Filed 04/22/19 Page 4 of 4

action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under

§ 752.055, 752.056, and 752.0565 arising therefrom.

This Court received the Fifth Circuit's judgment and mandate in May 2018. Since that
time, none of the parties have taken steps to proceed with this litigation. Therefore, the parties are

ORDERED to confer and file within 30 days the following:

1. A written advisory (joint or sole) stating each claim or defense set forth in their

live pleading(s) that they still intend to pursue and any claim or defense that they

are no longer pursuing as a result ofthe Fifth Circuit's ruling. If any party decides

to voluntarily dismiss all or some of their claims, they need to simultaneously file

a motion to dismiss those claims.

2. A proposed scheduling order to control future deadlines and set a trial date. The

parties are instructed to submit a joint proposed scheduling order, if possible. If

they are unable to reach an agreement, each side may file a proposed scheduling

order with a brief written advisory stating why they could not agree and the Court

will determine the deadlines.

If any party does not participate in this process (conferring and submitting the necessary documents to get this case moving), their claims may be dismissed for want of prosecution and failure to comply with the Court's orders.

It is so ORDERED this

day of April, 2019.

ORLANDO L. GARCIA CHIEF U.S. DISTRICT JUDGE

 
 Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants.

CIVIL ACTION NO. 5:17-cv-404-OG
[Consolidated/Lead Case]

EL CENIZO PLAINTIFFS, TRAVIS COUNTY PLAINTIFFS, AND THE CITIES OF DALLAS AND HOUSTON’S JOINT ADVISORY AND UNOPPOSED MOTION FOR
VOLUNTARY DISMISSAL WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 41(a)(2)
In compliance with the Court’s April 22, 2019 Order1 in this matter the El Cenizo
Plaintiffs,2 Travis County Plaintiffs,3 and the Cities of Houston and Dallas file the following Joint
Advisory and Unopposed Motion for Voluntary Dismissal with Prejudice pursuant to Fed. R. Civ.
P. 41(a)(2) with respect to the status of their claims and causes of action as a result of the Fifth
Circuit’s opinion and mandate in City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018) (“Fifth
Circuit Opinion”). After careful consideration and deliberation, and upon conferring with counsel
for the State of Texas Defendants, the El Cenizo Plaintiffs, Travis County Plaintiffs, and the cities
1 See, ECF No. 241. 2 El Cenizo Plaintiffs consist of City of El Cenizo, El Cenizo Mayor Raul L. Reyes, Maverick County, Maverick County Sheriff Tom Schmerber, Maverick County Constable Mario A. Hernandez and Texas State League of United Latin American Citizens (“LULAC”). 3 “Travis County Plaintiffs” consist of Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Sally Hernandez.
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 1 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 2 of 9
of Dallas and Houston hereby advise the Court that as a result of the Fifth Circuit Opinion the El Cenizo Plaintiffs, Travis County Plaintiffs, and the cities of Houston and Dallas do not wish to further pursue their claims asserted in this matter, and accordingly file simultaneously herewith their Joint Unopposed Motion for Voluntary Dismissal With Prejudice pursuant to Fed. R. Civ. P. 41(a)(2), seeking dismissal of all of the El Cenizo and Travis County Plaintiffs’ and cities of Houston’s and Dallas’ claims asserted in this action. El Cenizo Plaintiffs’, Travis County Plaintiffs’, and the cities of Houston’s and Dallas’ Joint Motion for Voluntary Dismissal with Prejudice is UNOPPOSED by the State of Texas Defendants and the remaining Plaintiffs in this case. The advisory and motion are brought without prejudice to the rights, claims, and defenses to any other party.
Joint Advisory of El Cenizo Plaintiffs, Travis County Plaintiffs, and the Cities of Houston and Dallas
Summary of Live Pleadings 1. The El Cenizo Plaintiffs’ live pleading is their Second Amended Complaint for Declaratory and Injunctive Relief, ECF No. 31 (“El Cenizo Complaint”); the Travis County Plaintiffs live pleading is the Complaint in Intervention of Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Sally Hernandez, ECF No. 78 (“Travis County Complaint”); the City of Houston’s live pleading is the City of Houston’s Complaint in Intervention, ECF No. 139 (“Houston Complaint”); the City of Dallas’ live pleading is the City of Dallas’ Complaint in Intervention, ECF No. 96 (“Dallas Complaint”). 2. The El Cenizo, Travis County, Houston, and Dallas Complaints raised facial challenges under the United States and Texas Constitutions and federal law to the validity of certain provisions of Senate Bill 4, enacted by the 85th Texas Legislature, signed into law by the Texas Governor on May 7, 2017, and codified in various parts of the Texas Codes. More specifically, El Cenizo, Travis County, Houston, and Dallas allege that:
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 2 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 3 of 9
(a) the “endorsement” provision of Senate Bill 4, codified as Tex. Gov’t Code § 752.053(a)(1), violates the First Amendment, through the Due Process Clause of the Fourteenth Amendment, see El Cenizo Complaint ¶¶ 31-32, Travis County Complaint ¶¶ 45-47; Houston Complaint ¶¶ 69-73; Dallas Complaint ¶ 59.
(b) the “materially limits” provisions of Senate Bill 4 violate the Fourteenth Amendment’s Due Process Clause as being too vague, see El Cenizo Complaint ¶¶ 33-38, Travis County Complaint ¶¶ 48-51; Houston Complaint ¶¶ 78-83; Dallas Complaint ¶¶ 56-57.
(c) Senate Bill 4’s provisions concerning requirements for local authorities’ honoring federal detainer requests violate the Fourth Amendment, through the Due Process Clause of the Fourteenth Amendment, see El Cenizo Complaint ¶¶ 39-42, Travis County Complaint ¶¶ 52-54; Houston Complaint ¶¶ 74-77; Dallas Complaint ¶ 61.
(d) Senate Bill 4 violates the Supremacy Clause because it is preempted by federal immigration law, see El Cenizo Complaint ¶¶ 43-45, Travis County Complaint ¶¶ 55-61; Houston Complaint ¶¶ 58-68; Dallas Complaint ¶ 54.
(e) Senate Bill 4 violates the Ninth4 and Tenth Amendments in its provisions imposing certain requirements on local governments and their officials, see El Cenizo Complaint ¶¶ 46-47, Travis County Complaint ¶¶ 66-68; and Dallas Complaint ¶ 69.
(f) Senate Bill 4 violates the Fourteenth Amendment’s Equal Protection Clause, see El Cenizo Complaint ¶¶ 48-49, Travis County Complaint ¶¶ 62-65; Houston Complaint ¶¶84-90; Dallas Complaint ¶ 63.
(g) Senate Bill 4 violates the Fourteenth Amendment’s substantive Due Process Clause and the Texas Constitution’s Due Course of Law Provision. Houston Complaint ¶¶ 7883.
(h) Senate Bill 4 violates the Texas Constitution’s home-rule provision, Houston Complaint ¶¶ 94-101; Dallas Complaint ¶¶ 71-72.
(i) Senate Bill 4 violates the delegation doctrine. Houston Complaint ¶¶ 91-93.
(j) Senate Bill 4 violates the Contract Clause. Dallas Complaint ¶65.
(k) Senate Bill 4 violates the Voting Rights Act of 1965 Dallas Complaint ¶ 67.
(l) Senate Bill 4 violates art. I, §§ 11, 11a, 30; art. 3, § 1; and the unfunded mandate
4 Travis County Plaintiffs did not assert Ninth Amendment claims.
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 3 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 4 of 9
provisions of the Texas Constitution. Dallas Complaint ¶¶ 73-80. For these violations, the El Cenizo and Travis County Plaintiffs and the cities of Houston and Dallas requested declaratory and injunctive relief. They also sought an award of attorney fees. See El Cenizo Complaint, Prayer for Relief ¶¶ A-B (second one), Travis County Complaint, Prayer for Relief, A-D; Houston Complaint at 35; Dallas Complaint ¶ 81. Advisory Regarding Proposed Scheduling Order
3. Subject to their Joint Motion for Voluntary Dismissal with Prejudice filed herewith, the El Cenizo and Travis County Plaintiffs and the cities of Houston and Dallas do not submit proposals for a scheduling order inasmuch as, under this joint motion, all of their pending claims and causes of action would be finally adjudicated upon the Court granting their unopposed motion. Further, the failure to submit a proposal for scheduling order does not prejudice any other party to this action, or the Court’s determination of how to proceed in this matter.
El Cenizo and Travis County Plaintiffs’ and the Cities of Houston’s and Dallas’ Unopposed Joint Motion for Voluntary Dismissal with Prejudice Pursuant to FED. R. CIV. P. 41(a)(2)
4. Consistent with the foregoing matters and with the Court’s Order, the El Cenizo and Travis County Plaintiffs and the cities of Houston and Dallas jointly move for an Order of Dismissal with prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
5. The El Cenizo and Travis County Plaintiffs and the cities of Houston and Dallas respectfully move that the judgment entered with respect to their claims reflect that the El Cenizo and Travis County Plaintiffs and the cities of Houston and Dallas are only dismissing their claims set forth in their live pleadings, and that such voluntary dismissal and judgment does not affect any as- applied claims or challenges that may thereafter arise or be filed in the future. Further,
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 4 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 5 of 9
such order should reflect that the parties shall bear their own costs and no costs of other parties.
6. The El Cenizo and Travis County Plaintiffs, the cities of Houston and Dallas and the State
of Texas Defendants further agree and stipulate that the El Cenizo and Travis County Plaintiffs
and the cities of Houston and Dallas and the State of Texas Defendants shall not seek any award
of costs or attorneys’ fees from the other as result of the claims and causes of action to be dismissed
pursuant to this Joint Motion for Voluntary Dismissal With Prejudice, and further stipulate that
entry of any order granting voluntary dismissal of their claims does not entitle El Cenizo Plaintiffs,
Travis County Plaintiffs, or the cities of Houston and Dallas or the State of Texas Defendants to
an award of costs or attorneys’ fees against any other party herein.
Conclusion
WHEREFORE, PREMISES CONSIDERED, The El Cenizo and Travis County Plaintiffs,
the cities of Houston and Dallas respectfully request that their Unopposed Motion for Voluntary
Dismissal with Prejudice pursuant to Fed. R. Civ. P. 41(a)(2) be in all respects GRANTED.
Dated: September 12, 2019
Respectfully Submitted,
DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY P.O. Box 1748 Austin, TX 78767 (512) 854-9415 (512) 853-4808 FAX
By: ___________________________ Sherine Thomas State Bar No. 00794734 sherine.thomas@traviscountytx.gov Sharon Talley State Bar No. 19627575
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 5 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 6 of 9
sharon.talley@traviscountytx.gov Anthony J. Nelson State Bar No. 14885800 tony.nelson@traviscountytx.gov Laurie R. Eiserloh State Bar No. 06506270 laurie.eiserloh@traviscountytx.gov Tim Labadie State Bar No. 11784853 Tim.labadie@traviscountytx.gov Assistant County Attorneys
ATTORNEYS FOR TRAVIS COUNTY PLAINTIFFS
s/ Luis Roberto Vera, Jr._____ Luis Roberto Vera, Jr. LULAC National General Counsel SBN: 20546740 THE LAW OFFICE OF LUIS ROBERTO VERA, JR. & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Phone: (210) 225-3300 Fax: (210) 225-2060 lrvlaw@sbcglobal.net
Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS P.O. Box 303187 Austin, TX 78703 Phone: (512) 480-8231 rhicks@renea-hicks.com
Andre Segura Edgar Saldivar AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 5225 Katy Street, Suite 350 Houston, TX 77007 Phone: (713) 325-7011 asegura@aclutx.org esaldivar@aclutx.org
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 6 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 7 of 9
Lee Gelernt Omar C. Jadwat Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY10004 Phone: (212) 549-2600 Fax: (212) 549-2654 lgelernt@aclu.org ojadwat@aclu.org asegura@aclu.org samdur@aclu.org
Cecillia D. Wang Cody H. Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 cwang@aclu.org cwofsy@aclu.org
ATTORNEYS FOR EL CENIZO PLAINTIFFS
By: RONALD C. LEWIS City Attorney State Bar No. 12305450 ronald.lewis@houstontx.gov Judith L. Ramsey Chief, General Litigation Section State Bar No. 16519550 judith.ramsey@houstontx.gov Collyn A. Peddie Senior Assistant City Attorney State Bar No. 15707300 collyn.peddie@houstontx.gov Fernando De Leon ** Senior Assistant City Attorney State Bar No. 24025325 fernando.deleon2@houstontx.gov 900 Bagby, 4th Floor Houston, Texas 77002 Telephone: 832.393.6462
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 7 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 8 of 9
Facsimile: 832.393.6259 ATTORNEYS FOR PLAINTIFF CITY OF HOUSTON OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS CHRISTOPHER J.CASO Interim City Attorney s/ Charles S. Estee ________________ CHARLES S. ESTEE Assistant City Attorney State Bar of Texas No. 06673600 charles.estee@dallascityhall.com City Attorney’s Office 1500 Marilla Street, Room 7B North Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622
ATTORNEYS FOR INTERVENOR CITY OF DALLAS
CERTIFICATE OF CONFERENCE I hereby certify that through a series of verbal and written communications culminating on September 12, 2019, I conferred with Assistant Texas Attorney General Lesli Ginn, counsel for Defendants, and Defendants are unopposed to the filing of this Joint Advisory and Unopposed Motion for Voluntary Dismissal with Prejudice pursuant to Fed. R. Civ. P. 41(a)(2).
/s/ Anthony J. Nelson Anthony J. Nelson
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 8 of 9 742986v4/329.268

Case 5:17-cv-00404-OLG Document 260 Filed 09/12/19 Page 9 of 9 CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of September 2019, I served a copy of the foregoing document on all counsel registered to receive electronic notifications through this Court’s CM/ECF system.
/s/ Anthony J. Nelson Anthony J. Nelson
El Cenizo Plaintiffs, Travis County Plaintiffs, And The Cities Of Dallas And Houston’s Joint Advisory And Unopposed Motion For Voluntary Dismissal With Prejudice Pursuant To Fed. R. Civ. P. 41(A)(2) Page 9 of 9 742986v4/329.268

 
 Case 5:17-cv-00404-OLG Document 274 Filed 12/13/19 Page 1 of 29

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al.,
EL PASO COUNTY; RICHARD WILES, SHERIFF OF EL PASO COUNTY; JO ANNE BERNAL, COUNTY ATTORNEY OF EL PASO COUNTY, in their official capacity; the TEXAS ORGANIZING PROJECT EDUCATION FUND; and MOVE TEXAS
CITY OF SAN ANTONIO, et al.,
Plaintiffs,
v.
THE STATE OF TEXAS; et al.,
Defendants.

§ Civil Action No.: 5:17-CV-00404-OLG

§

(Lead Case)

§

§

§

§ Civil Action No: 5:17-CV-00459-OLG

§

(Consolidated case)

§

§

§

§ Civil Action No: 5:17-CV-00489-OLG

§

(Consolidated case)

§

§

§

§

§

§

§

CONSOLIDATED PLAINTIFFS EL PASO COUNTY, ET AL.’S SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
I. PRELIMINARY STATEMENT 1. Senate Bill 4 (“SB 4” or the “Law”) was enacted with the intent to discriminate against Latinos and Latin American immigrants.1 It creates draconian penalties, which have now been enforced against Plaintiffs, to silence those with contrary points of view. The Law establishes a legal framework that facilitates and encourages illicit discrimination and, indeed, has now been applied to do exactly that. SB 4 violates the U.S. Constitution and should be permanently enjoined.

1 As used here, “Latino” means a person of Latin American descent, born in any country. “Latin American immigrants” refer to immigrants from Spanish-speaking countries in the Americas and the Caribbean.
1

Case 5:17-cv-00404-OLG Document 274 Filed 12/13/19 Page 2 of 29
2. As described below, the Legislature’s racial stereotypes and animus fueled SB 4’s enactment, tainting the entire law with a discriminatory legislative purpose that is forbidden by the Fourteenth Amendment. The Law chills the speech of local decision-makers in violation of the First Amendment, using stiff penalties to silence public servants on a broad range of topics related to immigration law and immigrant families. SB 4’s framework facilitates and encourages racial profiling and disparate policing of Latinos and Latin American immigrant communities which, alongside the State of Texas’ aggressive tactics to enforce the Law and retaliate against perceived opponents of the Law, has already resulted in the violation of equal protection rights. Latinos and immigrants and their families, particularly those from Mexico, Central American and other Spanish-speaking countries, have been targeted. 3. This historic and unconstitutional attack on certain Texas communities is especially harmful to the County of El Paso — comprised of residents, employees, and visitors — and to the Texas Organizing Project Education Fund (TOPEF) and MOVE Texas (MOVE) and the populations they serve. For this reason, the County of El Paso, its Sheriff, Richard Wiles, its County Attorney, Jo Anne Bernal, TOPEF and MOVE on behalf of their employees and the people they serve (collectively, the “Plaintiffs”), seek declaratory and injunctive relief against the State of Texas, Texas Governor Greg Abbott, and Texas Attorney General Ken Paxton under the First and Fourteenth Amendments of the U.S. Constitution. In addition, El Paso County and Sheriff Wiles seek a declaratory judgment that El Paso’s current policies regarding federal immigration enforcement do not violate SB 4.
2

Case 5:17-cv-00404-OLG Document 274 Filed 12/13/19 Page 3 of 29
II. JURISDICTION AND VENUE 4. This action raises federal questions under the United States Constitution, particularly Article 1, and the First and Fourteenth Amendments. In addition, this court has jurisdiction over these constitutional claims pursuant to 42 U.S.C. § 1983. 5. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1346. This court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. 6. Venue lies in this district pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claim occurred in this district.
III. PARTIES 7. Plaintiff, El Paso County, Texas is, at all times relevant to this Complaint, a county located in Texas and is recognized as a legal subdivision of the State. Tex. Const. Art. 11 § 1. El Paso County has the constitutional and statutory authority to set policies and regulations, as well as administer programs for its residents in certain areas, including administering its county judicial system, and providing health and social services to many county residents regardless of their national origin. El Paso is unique among Texas counties: it is bilingual, bi-national, multicultural, and geographically distinct. For instance, El Paso has over 800,000 residents, is over 82% Latino and over 25% of its residents are foreign born. Over 72% of El Paso County households speak a language other than English at home. It is part of the largest border community in the United States, and one of the safest communities in the nation, leading the country in public safety. El Paso takes great pride in protecting all its residents and its values, and has been a leader in the fight against discrimination of all types for decades, with a special focus on protecting the civil rights of its immigrant communities. In its attack upon Latinos and Latin American immigrants, SB 4 stands in stark contrast to El Paso’s history and identity. The County is the seat of government for its
3

Case 5:17-cv-00404-OLG Document 274 Filed 12/13/19 Page 4 of 29
public officials, who face the injury of removal from office for adopting a policy in violation of SB 4. 8. El Paso County faces injury in fact from SB 4 in the form of substantial civil penalties for non-compliance with the law, as well as tremendous budget uncertainty due to SB 4’s unclear standards and imminent full enforcement, including fines of $25,000 per day of violation excluding the first day of that violation. The County faces the threat of mandamus and injunction actions for violating SB 4. In addition, it has created unbudgeted costs associated with training its deputy sheriffs and administrative staff about complex federal immigration rules and laws. 9. The threat of the State’s aggressive and imminent full enforcement of SB 4 against El Paso county officials is real, as underscored by the State of Texas’ retaliatory suit against opponents of SB 4, including the El Paso Plaintiffs and by the State’s recent lawsuit against the City of San Antonio. 10. For all of these reasons — the budgetary uncertainty created by SB 4, its imminent full enforcement, and the Attorney General and Governor’s threats against the opponents of SB 4 — El Paso County is already injured by SB 4’s unconstitutional mandates. 11. Plaintiff Richard Wiles is the Sheriff of El Paso County. He is a judicial officer imbued with judicial discretion derived from the Texas Constitution. Sheriff Wiles is responsible for the enactment and enforcement of El Paso County’s law enforcement policies and practices, including those governing compliance with Texas law and federal immigration detainers. He faces removal from office for violating SB 4, including by “endors[ing]” any policy that “materially limit[s]” the enforcement of immigration laws. Sheriff Wiles, as a law enforcement officer, also faces criminal sanction under SB 4 for failing to honor a civil detainer request. Finally, Sheriff Wiles’ authority
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and discretion to administer the law and to ensure the public safety of the residents of El Paso is greatly diminished by SB 4. Sheriff Wiles is injured by SB 4’s unconstitutional mandates. 12. Plaintiff Jo Anne Bernal is the County Attorney for El Paso County. In November of 2009, Jo Anne Bernal became the first female County Attorney in El Paso County’s history. Before Commissioners Court appointed her, Ms. Bernal had been working with the County Attorney’s Office for 16 years, 14 years as First Assistant County Attorney. As County Attorney, Ms. Bernal manages an office with an annual budget of $7.5 million and supervises more than 100 employees. In addition to handling complex litigation, she oversees 39 attorneys who practice both civil and criminal law in areas that range from civil rights litigation to juvenile prosecution. 13. It is the duty of the County Attorney to enforce the laws of the State of Texas regardless of the immigration status of the victim. The County Attorney’s office is statutorily responsible for obtaining legal protections on behalf of all victims of family violence, and elder and child abuse. As an elected official, she faces removal from office for violating SB 4. This violation may include the endorsement of a policy that limits the enforcement of immigration laws. Endorsement is undefined by the statute and may include expression for a policy in violation of SB 4. County Attorney Bernal testified against SB 4 during the committee hearings in both the Texas House and Senate. The threat of civil penalties and the need to train the County’s staff, attorneys, and investigators regarding SB 4’s requirements and federal immigration enforcement have created budgetary uncertainty for the County Attorney’s office. 14. Plaintiff, TOPEF, is an education organization that promotes social, racial and economic justice for all Texans by conducting strategic, year-round community organizing, focusing efforts within working class neighborhoods in San Antonio, Houston, and Dallas. TOPEF is incorporated in San Antonio and keeps its principal place of business there.
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15. TOPEF and the community members it serves have already been injured by SB 4’s unconstitutional mandates. TOPEF organizes Black and Latino communities across several cities in the state with the goal of transforming Texas into a state where working people of color have the power and representation they deserve. SB 4 directly impairs TOPEF’s mission by making Latinos more afraid of the police and, therefore, negatively affecting their power and willingness to organize. 16. TOPEF has also been forced to divert funding and other resources to counteract the effects of SB 4. For example, in response to SB 4, TOPEF has had to conduct “know your rights” presentations, and given out “know your rights” cards; applied for and obtained grants for projects related to SB 4 and immigration issues; and even expanded its immigration program — including creating at least one position — to more effectively tackle immigration issues locally and statewide such as SB 4. TOPEF has also suffered a decrease in the number of community members willing to participate in TOPEF’s organizing activities because the families it serves, which are mostly Latino, are scared to do so for fear of being targeted by local law enforcement. The fear of racial targeting, leading to a chilling of participation, will only amplify if SB 4 goes into effect in full, further stifling TOPEF’s ability to accomplish its organizational goals. 17. Given TOPEF’s mission, the forced diversion of resources, and the harms to the racially and ethnically diverse community it serves, TOPEF has organizational standing. 18. Plaintiff, MOVE, is a grassroots, nonpartisan organization that builds political power in underrepresented youth communities through civic engagement, leadership development, and progressive issue advocacy. MOVE operates primarily within the San Antonio area, organizing students on the 13 largest college campuses in San Antonio and promoting participation in political
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and social causes. MOVE is incorporated in San Antonio and keeps its principal place of business there. 19. MOVE and the community members it serves have already been injured by SB 4’s unconstitutional mandates. MOVE is a nonpartisan, nonprofit, grassroots organization working to build power in underrepresented youth communities through civic engagement, leadership development, and issue advocacy. SB 4 directly impairs MOVE’s mission by making Latino youth more afraid of the police, and therefore, negatively affecting their willingness to mobilize, organize, and build power through the organization. 20. MOVE has also been forced to divert funds and change its programming priorities in order to address the needs of Latino students at the colleges it serves. For example, in response to SB 4, MOVE has had to: conduct “know your rights” trainings and activities to raise awareness about SB 4 on college campuses after it was passed; co-found and participate in a coalition designed to combat the effects of SB 4; and dedicate multiple staff members and dozens, if not hundreds, of hours toward these and similar efforts. Moreover, the students who participate and organize with MOVE fear racial profiling on their college campuses; some are now afraid that local law enforcement and/or campus police will inquire about their personal immigration status or that of family members. Heightened fear chills participation in campus activities and deeply impacts MOVE’s ability to mobilize college students and fulfill its organizational mission. 21. Given MOVE’s mission, the forced diversion of resources, and the harms to the racially and ethnically diverse community it serves, MOVE has organizational standing. 22. Defendant, the State of Texas, is a free and independent sovereign state of the United States.
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23. Defendant, Greg Abbott, is the Governor of the State of Texas and signed SB 4 into law on May 7, 2017. He is the Chief Executive officer of the State of Texas and is responsible for the appointment of officials who administer state law enforcement. Governor Abbott is sued in his official capacity. 24. Defendant Ken Paxton is the Attorney General of the State of Texas, which is an executive office that represents the State of Texas in all actions in which the State may be a party. He is the officer who shall seek mandamus or injunction if and when local entities violate SB 4. He is also the officer given the sole authority to seek a quo warranto or a removal action against a public official who has violated SB 4. Attorney General Paxton is sued in his official capacity.
IV. FACTUAL BACKGROUND A. SB 4 Imposes Unconstitutional Mandates on Local Governments and Facilitates
Discriminatory Policing Tactics 25. Over the past several decades, the federal government has had a history of creating and enforcing immigration law at the expense of civil rights laws and the Constitution. 26. In the past two decades, federal immigration enforcement has increasingly co-opted local resources in border jurisdictions like El Paso County, placing a strain on local police resources and relationships with communities of color. 27. Texas cities and counties, such as El Paso, have used their traditional police powers to adopt a variety of policies and measures to guide their cooperation with federal immigration enforcement initiatives in a way that best advances the needs of their communities. Jurisdictions like El Paso also rely on their traditional police power to allocate scarce resources to balance their commitment to federal immigration priorities with public safety, due process, and accountability. 28. In recent years, certain politicians, including Defendant Greg Abbott, have labeled at least some of these cities and states as “sanctuary jurisdictions” — a pejorative, imprecise term.
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29. Indeed, since 2010, spurred by anti-immigrant sentiments, at least five other state legislatures have attempted to enact laws with requirements to regulate local police stops, questioning, and detention policies. Each of these laws has either failed or judges have voiced concerns about the civil rights implications on the basis of race. 30. Nonetheless, Texas followed suit. The Texas legislature considered so-called “Sanctuary Cities” and “Show Me Your Papers” bills over several legislative cycles, continuing even as similar laws were enjoined. 31. Then, after a contentious legislative process, described below, SB 4 was signed into law on May 7, 2017. As Governor Greg Abbott said, immediately after signing the bill, the Law was meant to “ban[] sanctuary cities.” It is codified at Tex. Gov’t Code Ann. §§ 402.0241, 752.051– 752.057, 772.0073 (West), Tex. Code Crim. Proc. Ann. Art. 2.13, 2.251, 17.16 (West), Local Gov’t Code Ann. § 87.031 (West), Tex. Penal Code Ann. § 39.07 (West). 32. As is relevant here, SB 4 prohibits local entities from adopting, enforcing, or endorsing a policy that prohibits or materially limits the enforcement of “immigration laws,” a term without meaningful definition, or, as demonstrated by pattern or practice, materially limiting or prohibiting enforcement of such laws. 33. SB 4 prohibits law enforcement agencies, as demonstrated by pattern or practice, from refusing to comply with an immigration detainer request issued by the federal government. An immigration detainer, also known as an “ICE hold,” is a document by which United States Immigration and Customs Enforcement (ICE) requests a local law enforcement agency to hold a person ICE suspects has violated civil immigration laws, so that ICE may gain custody, even if there are no underlying criminal charges to justify continued detention.
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34. In addition, SB 4 provides that local entities may not prohibit or “materially limit” a police officer — including safety officers on college campuses — from inquiring into the immigration status of a person under lawful detention or under arrest; inquiring into the detainee’s place of birth; sending that information to United States Citizenship and Immigration Services (USCIS), ICE, or any other federal agency; assisting or cooperating with a federal immigration officer; or allowing the federal government access to a jail to enforce federal immigration law. 35. Any “citizen” residing in the jurisdiction of a local entity may file a complaint with the attorney general alleging that a jurisdiction has violated SB 4. The Attorney General may then seek a writ of mandamus or injunction to compel the jurisdiction to comply with SB 4. 36. Jurisdictions that intentionally violate SB 4 face severe, escalating civil penalties, including fines of $25,000 per day of violation, excluding the first day of a violation. 37. Public officials who violate SB 4 face removal from office via quo warranto. A public statement made by a public official is evidence for removal. 38. Sheriffs, chiefs of police, constables, or anyone with primary authority for administering a jail is criminally liable for knowingly failing to comply with a detainer request. 39. In total, SB 4 forces local government to divert resources to federal immigration priorities as envisioned by the State of Texas. Law enforcement officials who do not comply will have committed crimes. Public officials who do not abide by federal immigration priorities face removal. All law enforcement agencies and jurisdictions that opt to focus on community policing and stay out of immigration enforcement face stringent civil liability. 40. Latinos and Latin American immigrants and their families, bear the brunt of this unjust law.
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B. Procedural History 41. Before SB 4 could go into effect, several Texas cities, counties, local law enforcement and city officials, and advocacy groups challenged the law in three consolidated actions. Plaintiffs sought a preliminary injunction, and the district court found Plaintiffs likely to prevail on certain of their claims. 42. Following the district court’s order, Texas moved this court to stay the injunction pending appeal. The stay panel granted the motion in part, finding Texas likely to prevail on the Fourth Amendment and preemption claims, and stayed the injunction as to Article 2.251’s ICE-detainer mandate and Section 752.053(b)(3)’s assistance-cooperation provision. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, at *2 (5th Cir. Sept. 25, 2017). 43. The stay panel left the injunction in place as to the “endorse” and the “materially limits” prohibitions, concluding that possible limiting constructions of these terms “are best left for the time when this court’s ruling would have more finality.” Texas appealed the preliminary injunction, and Plaintiffs cross-appealed the district court’s refusal to enjoin SB 4 completely. 44. Plaintiffs ultimately succeeded on the merits of their constitutional claims as to the enforcement of Section 752.053(a)(1)’s “endorse” provision against elected officials. 45. Plaintiffs now seek final determination on their remaining claims.
C. SB 4 was Enacted with the Intent to Encourage and Facilitate Discrimination Against Latinos and Latin American Immigrants
46. Circumstantial evidence surrounding SB 4’s enactment raises a strong inference of an illicit purpose, in light of the teachings of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 (1977).
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Background and Events Leading to Enactment, and the Mindset of the Legislative Leaders 47. For more than one-hundred years, facially neutral laws and ordinances have unconstitutionally discriminated on the basis of race and national origin against Latinos and Latin American immigrants. 48. In Texas, Latinos and Latin American immigrants have suffered routine racial profiling, discrimination, and violation of their civil rights at every stage of interaction with law enforcement, spanning from being disproportionately subject to traffic stops to being disparately impacted by the use of ICE detainers while held in local jails. As discussed below, the disparate impacts on these communities continue to-date, despite some localities’ attempts to ameliorate these effects by banning racial discrimination. 49. For the past decade, Texas lawmakers have relied on racially charged statements against Latin American immigrants in their campaigns. Since his 2006 campaign, Lieutenant Governor Dan Patrick, one of the main architects of SB 4, has called immigration into Texas an “invasion” and said that immigrants coming to Texas bring “third world diseases,” such as leprosy. Without factual data, Patrick blamed Latin American immigrants for “a rising crime rate, overcrowded schools, an overburdened health-care system, and runaway growth in the state budget,” and characterized undocumented Latin American migrants as “terrorists and drug runners.” In 2014, he affirmed these anti-immigrant statements. 50. Since the passage of SB 4, Lt. Gov. Patrick’s dangerous and irresponsible rhetoric toward Latin American immigrants has continued unmoored from reality or reason. In 2018, Lt. Gov. Patrick erroneously suggested that undocumented people had committed 566,000 crimes in the last six years. The claim was called a “pants on fire” lie by a fact-checking entity. This statement and
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others like it are provably false. More relevant here, these statements elucidate a legislative intent that is based on lies, misstatements, racial panic, and impermissible invidious discrimination. 51. Just like Lt. Gov. Patrick, Governor Greg Abbott has made it clear that he considers undocumented people to be a danger to the citizens of Texas. In June of 2013, Gov. Abbott stated that “[f]or the first time in more than a decade the front line of illegal immigration has shifted from Arizona to Texas… A surge of illegal crossings is a threat to the safety of Texas families.” Even before SB 4 was enacted, Gov. Abbott began to take action against the jurisdictions he wrongly believed were not cooperating with the federal government’s enforcement of immigration laws. On February 6, 2017, Gov. Abbott tweeted that Sherriff Sally Hernandez of Travis County had refused to enforce certain provisions of federal immigration law and was “not giving ICE info about drugs cartels [sic] & armed robbers.” The non-compliance of Travis County with federal immigration law became a driving force behind the State’s obsession with passing SB 4. Similar to nearly every justification for this law, it was false that Travis County was refusing to honor federal immigration laws. However, the rhetoric used by the Governor before the enactment of SB 4 illustrates a mindset that all undocumented immigrants are dangerous criminals who must be stopped using legislative means. This rationale is irrational, unfounded, and is clear evidence of an impermissible legislative purpose. 52. Nor can SB 4 be separated from the racially charged context of recent federal immigration enforcement. The 2016 election both in Texas and in the United States was riddled with nativist and anti-immigrant appeals. For instance, then-candidate Trump repeatedly claimed that “illegal immigrants” were “rapists” and “criminals” roaming the streets, killing people and stealing jobs from American workers. In response to a question about immigration, he even used the term “bad hombres” to describe the specific target of his proposed immigration plan, in the process conflating
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crime and undocumented immigration with Latinos, and Latino men in particular, and furthering the stereotype that the two are synonymous. He also publicly attacked Latinos, including by questioning the impartiality of a Latino United States federal judge presiding over a lawsuit related to Trump University. In 2017, the Trump administration issued several Executive Orders to ban immigrants of color, initiatives that were twice enjoined for discriminatory intent.
Procedural and Substantive Departures from Normal Processes 53. SB 4 flew through the legislative process with unusual speed, despite a chorus of public cries against it. 54. Senator Charles Perry filed SB 4 on November 16, 2016, as a pre-filed bill. 55. On February 2, 2017, the Senate State Affairs Committee held a daylong committee hearing in which hundreds of people testified in person. Despite the volume of testimony, less than 3% testified in person in support of the bill, only one of whom was a law enforcement member. 56. During the testimony, the State Affairs Committee Chair refused to allow extra chairs for Democratic State Senators who were not part of the Committee, causing State Senators to shuttle between the two seats for Democrats. 57. On February 8, 2017, SB 4 was passed to engrossment and sent to the House. SB 4 was referred to the House Committee on State Affairs and was heard on March 15, 2017. Again, hundreds of people testified in person against the bill. Again, only about 3% testified in favor. 58. On April 12, 2017, the bill was voted out of the House State Affairs Committee as substituted and sent to the Calendars Committee on April 20, 2017 at 2:22 PM. Just 48 minutes later, the bill was placed on the Emergency Calendar, moving with extraordinary speed. 59. The House considered SB 4 on April 26, 2017. Chairman Charlie Geren was the House sponsor for SB 4. In all, the House considered 145 amendments, of which fewer than 10% were
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adopted, accompanied by emotional debate, in a session that extended until 4:30 AM on April 27, 2017. 60. The House debate contained many peculiar deviations from normal procedure. For instance, several points of order were overruled that under normal operating procedures would have been sustained. This included a point of order concerning the validity of a witness affirmation, which is the same category of point of order that was sustained against a previous “sanctuary cities” bill. Moreover, rather than cut off debate utilizing the House rules to move to the previous question, the House moved to have the vote for “Record Vote 456” used for all amendments that remained on the Speaker’s desk. This rule suspension has not been used or adopted by the Texas House for any legislation other than bills on the local and consent calendars. This effectively cutoff debate without meaningful consideration of any amendment numbered 76 to 145. 61. The tenor of the debate was also a major departure from the normal practices of the Texas House. The Texas House Rules in effect during the 85th Legislature state “the speaker shall preserve order and decorum” in the House and “shall see that the members of the house conduct themselves in a civil manner in accordance with accepted standards of parliamentary conduct.”2 62. Despite this, the proponents of the bills defined the problem that the legislation was meant to address not as local cooperation, but as “illegals,” using a term widely considered specifically pejorative to the Latino community, not only undocumented immigrants. Chairman Geren said that the bill was aimed at “bad people,” suggesting animas toward the targets of the law. Legislators were often heard laughing at the demise of ameliorative amendments, and heckling at their legislative colleagues who voiced opposition to the bill. The disrespectful behavior and racially charged undertones of the debate led one lawmaker to conclude: “I can’t speak to what was in their
2 TEX. LEGIS. COUNCIL, TEX H. RULES, 85TH LEG. 3-4 (2017), available at https://lrl.texas.gov/scanned/rules/850/85_house_rules.pdf.
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hearts and why — what motivated them to file this legislation, but I can speak to the fact that we raised concerns about its impact on the Latino community and they were disregarded.” 63. Consideration of the so-called “Schaeffer Amendment,” an amendment proposed by Representative Matt Schaffer, was also a substantive departure from the normal procedures. The Schaeffer Amendment sought to re-draft the House version of the bill and revert to certain language of the Senate version, including language permitting law enforcement to make immigration inquiries during any “lawful detention,” rather than only after an arrest. This amendment was hotly contested and controversial. A legislative trade proposal was raised that, essentially, would have removed the Schaeffer Amendment from consideration in exchange for allowing multiple other amendments to be considered, in response to concerns that the public and other lawmakers had raised about the bill. After some time, however, it became clear that a true deal was never on the table, as Representative Schaeffer showed no serious inclination to remove his amendment from consideration. 64. Accordingly, in one night, SB 4 made Texas legislative history in the worst possible way. Meaningful points of order were denied outright and not considered despite the traditional practice of the House. The bill spent less than an hour in the Calendars Committee. It was subject to a tremendous volume of negative witness testimony in both the Texas Senate and Texas House committees, all of which failed to impede its swift progress through the legislature. The House cut off debate by using a practice reserved only for bills on the local and consent calendar. A “deal” was offered that would have allowed the Speaker to choose which amendments would be considered but without any serious intention of compromise. 65. SB 4 passed the Texas House on April 27, 2017 and was sent to the Senate.
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66. The Senate concurred in House Amendments, and the Governor signed SB 4 into law on the evening of Sunday, May 7, 2017 in a private event not open to the media or the public. It became effective on September 1, 2017.
Evidence of Pretext in Stated Rationale 67. As noted above, the bill’s sponsor, Chairman Geren, announced from the House floor that SB 4 was meant to uphold the rule of law and get at “bad people.” He argued that SB 4 required local governments to enforce federal immigration law only to the extent it was requested by the federal government. He also misleadingly claimed that the “Show Me Your Papers” component of the bill applied only to people who were actually arrested and nearby bystanders. Finally, Chairman Geren claimed the bill simply requires jurisdictions to honor valid ICE immigration detainer requests. 68. But Chairman Geren admitted on the House Floor that he did not consult any studies to justify or inform his decision to champion SB 4. He further stated there was no inciting event that led to his sponsorship or drafting of SB 4. In fact, his use of the term “bad guys,” which is shockingly similar to Trump’s infamous reference to “bad hombres” — a term that perpetuates the stereotype conflating criminals and undocumented immigrants with Latino men — exemplifies an underlying intent to discriminate against Latinos and specifically target Latino men. Ultimately, too, each of the offered rationales is belied through a close examination of legislative history, particularly the repeated rejection of ameliorative amendments. 69. First, SB 4 cannot be justified by any true concern about public safety. For example, amendments were rejected that targeted violent or dangerous offenders to be held pursuant to ICE detainer requests. Other amendments that would have provided training to local law enforcement concerning the complexities of federal immigration law were likewise rejected. Similarly,
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amendments seeking to improve communication between immigrant communities and law enforcement were also rejected. 70. There was voluminous testimony by law enforcement officials in both the Texas House and Senate committees that SB 4 will make Texas less safe, but it was not given serious credit. 71. Chairman Geren, the House sponsor of SB 4, engaged in a colloquy with Chairman Rene Oliveira during the floor debate for SB 4. Chairman Geren admitted that out of the hundreds of testifying witnesses, only one law enforcement officer testified in favor the bill. (“Oliveira: …I think throughout the state based on the testimony we heard –– there was only one law enforcement officer, and he testified in the Senate as a sheriff in favor of this bill. Isn’t it true there was not one police chief, one police officer, one constable, one sheriff, or anybody else who testified in favor of this bill? Geren: That’s Correct.”) 72. Finally, the bill author and all proponents of the bill were made aware that the incidence of crime among the undocumented community was lower than that among U.S. citizens and Legal Permanent Residents. 73. Similarly, SB 4 was not structured to target only individuals who have been convicted of a crime, but a broader class of “bad people” and “illegals,” again suggesting impermissible discriminatory intent. Once the Schaeffer Amendment was adopted, the will of the House was to allow this bill to apply to anyone detained by law enforcement and not just to those who were arrested. Accordingly, SB 4 allows police officers and campus safety officers to make national origin inquiries at traffic stops and other commonplace interactions with Texas residents. 74. SB 4 bans racial profiling on its face, but the bill hamstrings one of the most effective tools that local jurisdictions use to combat racial profiling. For example, El Paso County, to address a
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history of racial profiling issues with officers, adopted a ban on inquiries into immigration status at stops. Hearings did not address how localities could find similarly effective alternatives. 75. This bill also cannot be justified by the need to mandate compliance with voluntary ICE detainer requests. For example, a floor amendment was offered that would have limited SB 4 to the detainer issue only, but it was rejected. Moreover, there was credible testimony in committee that local jurisdictions in Texas comply with almost all ICE detainers already. Chairman Geren in fact stated that he could not name a sanctuary city, county, or university that did not intend to honor ICE detainers. This bill was thus not passed to simply force compliance with ICE detainers, as such compliance is already the standard across Texas. 76. A fervent belief in the “rule of law” also cannot justify SB 4, which allows the Attorney General (AG) to seek mandamus or injunction for entities that allegedly violate SB 4 and allows the AG to defend local entities from suits against those jurisdictions for complying with SB 4. In stark contrast, SB 4’s perfunctory language regarding non-discrimination provides no authorization for the AG to enforce that non-discrimination policy. Instead of evidencing a serious concern with how to deal with the very likely discriminatory impact of SB 4, the presence of the non-discrimination policy without an enforcement mechanism reveals the policy as nothing more than a fig leaf provision intended to obscure impermissible discriminatory intent. 77. Accordingly, the policy rationales for this bill are pre-textual and belie a sub-rational, impermissible purpose based in racial or national origin animus or discriminatory intent.
Evidence of Disparate Impact 78. SB 4 removes critical checks on racial profiling across the entire spectrum of law enforcement interactions with individuals, leading to a cascading series of disparate impacts beginning at traffic stops and potentially ending in ICE detainers. For example, racial profiling has
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had a disparate impact on Latino drivers. Despite laws attempting to ameliorate the effects of racial profiling, from 2009 to 2015, in a review of 15 million records in Texas, Latino drivers in Texas were found to be “33% more likely to be stopped than Caucasians and much less likely to have any drugs, weapons, or illegal currency on them.”3 79. Data specialists have found that even this data may underestimate the extent of raciallymotivated stops. For example, in reviewing Texas racial profiling data, Stanford specialists confirmed that Texas DPS records a large percentage of the Latino population as white, causing data flaws in capturing racial profiling.4 80. The disparate impact goes beyond racial profiling. On information and belief, Latino communities in Texas are already less willing to report being victims of crimes due to fears of being asked about immigration status or detained. 81. The disparate impact of ICE detainers also falls heavily on undocumented Latino individuals. For example, in Texas, ICE detainers are used to hold predominately Latin American immigrants. Based on Syracuse University’s Transactional Records Access Clearinghouse (TRAC) data, in FY 2019, 21,180 ICE detainers were sent to Texas facilities; 95.6% (n=20,256)5 of those were for people from Latin American countries. In FY 2018, 35,429 detainers were sent to Texas facilities; at least 95.8% (n=33,958) were from Latin American countries. In contrast,
3 Elizabeth Wheat, Law Enforcement Profiling in Public Policy, in Global Encyclopedia of Public Administration, Public Policy, and Governance 1, 6 (A. Farazmand ed., 2016), available at https://www.researchgate.net/profile/Elizabeth_Wheat/publication/305420304_Law_Enforcement_Profiling_in_Pub lic_Policy/links/5b4a1989a6fdccadaecb5c6c/Law-Enforcement-Profiling-in-Public-Policy.pdf. 4 See Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, Stanford Computational Policy Lab (2019), (discussing the raw data issues in Texas racial profiling reporting) https://5harad.com/papers/100M-stops.pdf; Cindy Casares, Texas Misreports Latino Traffic Offenses as White, Impacting Racial Profiling Record, Latina (Nov. 25, 2015), http://www.latina.com/lifestyle/our-issues/texasmisreports-latino-traffic-offenders. 5 “N” denotes “sample size.”
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DHS estimates that, in FY 2015, just 71.4% of undocumented migrants residing in the U.S. were from Latin American countries.6 82. Additionally, the disparate impact of ICE detainers most impacts undocumented Latin American immigrants. For example, in FY 2018, in Texas, 93% of ICE detainers were issued for men (n=33,020), and in FY 2019, 92.4% were issued for men (n=19,582). Yet men make up just roughly half of all undocumented immigrants.7 83. History and logic supports that not all people will be equally subject to this harassment: Latinos and Latin American immigrants and their families will be targeted for both immigration questioning and for ICE detainers. Ultimately, the overwhelming majority of people deported are Latino men.8 Immigration enforcement efforts simply do not fall equally on all immigrants. 84. This information was easily accessible to proponents of the Law, and known to at least some of them. Indeed, even on the House floor, Chairman Geren admitted that most immigrants in Texas are of Latin American origin, essentially acknowledging that Latinos were more likely to be racially profiled under the law. 85. Chairman Green also admitted that ICE detainers are not always valid. It is widely known that, in Texas, invalid ICE detainers and unlawful detentions unequally affect Latinos and Latin American immigrants. 86. Chairman Geren also stated on the House floor that the immigrant community was not in favor of the bill, stating that members of this community had communicated with him about their concerns about being treated unfairly. He said, “most of their concerns were for their parents. Most
6 Bryan Baker, Estimates of the Illegal Alien Population Residing in the United States: January 2015, Dep’t of Homeland Sec’y (2018), https://www.dhs.gov/sites/default/files/publications/18_1214_PLCY_pops-est-report.pdf 7 Tanya Golash-Boza, The Deportation Crisis for Latino Immigrant Men and Their Families, SCHOLARS STRATEGY NETWORK (Apr. 9, 2014), https://scholars.org/brief/deportation-crisis-latino-immigrant-men-andtheir-families. 8 Id.
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of the immigrant community that approached me were citizens of the United States, but their parents’ status was questionable.” 87. Chairman Geren also acknowledged Texas’ long history of racial profiling, stating, “I agree with you that racial profiling does occur –– not just in law enforcement, and it’s not just against Hispanics.” 88. Upon information and belief, SB 4 was passed because of its foreseeable discriminatory impact upon Latinos and Latin American immigrants.
D. Chilling Speech, Association and other First Amendment Rights 89. On its face, SB 4 prohibits officials from “endors[ing]” any policy that would prohibit or materially limit the enforcement of immigration laws. Although the term “endorse” is not defined in statute, its common definition includes “a recommendation, suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is generally conveyed openly or publicly.” City of El Cenizo, Texas v. Texas, 890 F.3d 164, 183 (5th Cir. 2018). The definition of the term “endorse” also commonly includes the word “sanction,” as in “us[ing] … official authority to ratify or authorize.” Id. 90. SB 4 creates significant penalties for local officials who run afoul of certain provisions, including the endorsement rule. Among other penalties, it allows for the removal of public officials via quo warranto for the endorsement of a policy in violation of SB 4. SB 4 also subjects local entities and campus police who intentionally violate the endorsement rule to civil penalties of a minimum of $25,000 per day of violation, excluding the first day of a violation. 91. Moreover, SB 4 creates a chilling effect upon organizing, protesting, and other protected forms of speech and petition that occur in the public square. Community members from both
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TOPEF and MOVE are afraid to participate in the activities of those organizations, for fear of being targeted for looking “foreign” and being asked to produce proof of citizenship. 92. At the same time, TOPEF and MOVE have been stymied in their efforts to work with officials in establishing local reforms designed to serve the community, as officials have expressed severe reluctance to engage in speech that might run afoul of certain SB 4 provisions. 93. Further, in a remarkably retaliatory move, Texas sued Plaintiffs El Paso County, Sheriff Wiles and TOPEF in an advisory opinion action it filed in the Austin Division. Texas, et al. v. Travis County, et al., 5:17-CV-00425-SS (W.D. Tex.—Austin Division). 94. Texas did not allege any actions or omissions by TOPEF that may have justified its lawsuit; Texas stated plainly that it sued TOPEF because the organization challenged the constitutionality of SB 4. 95. While the suit was ultimately dismissed, Texas’ addition of Plaintiffs was a retaliatory, malicious action that served to chill and violate Plaintiffs’ First Amendment rights, including their right to petition the government and have access to the courts.
E. SB 4 Facilitates and Encourages Discriminatory Policing Practices 96. SB 4 allows the opportunity for unlawful detentions and the use of national origin, race, and gender for unlawful disparate treatment in policing, in violation of constitutional guarantees. 97. SB 4 allows law enforcement personnel, including college campus law enforcement officials, greater discretion to make inquiries into the national origin of any individual detained for any period of time. Jurisdictions are specifically disallowed from prohibiting law enforcement personnel from inquiring into national origin at the point of detention, arrest, or custody. 98. SB 4 allows and creates the opportunity for pre-textual vehicle stops or other investigation, which will form the basis for racial profiling by law enforcement personnel in Texas at every stage
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of interaction with law enforcement, spanning from stops and questioning, to searches, seizures, arrests, and detentions, and ultimately to being subject to ICE detainers while in local jails. Each of these potential points of contact provides the opportunity for disparate treatment along the lines of race, national origin, and gender, in violation of equal protection. 99. On information and belief, SB 4 has caused discriminatory policing acts in multiple jurisdictions since its implementation in its current form on May 8, 2018.
V. CAUSES OF ACTION / VIOLATIONS OF LAW A. SB 4 was Passed with a Discriminatory Intent in Violation of the Fourteenth
Amendment’s Equal Protection Clause 100. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 101. The Fourteenth Amendment to the United States Constitution guarantees persons the equal protection of the laws, and prohibits the government from treating persons differently than similarly situated individuals. 102. Discrimination based on race, national origin, and/or gender was a substantial or motivating factor behind SB 4. 103. The historical background, sequence of events, procedural deviations, substantive departures, and legislative history, as well as the foreseeable certainty of the disparate impact of SB 4 on a protected class — and the failure to adopt amendments that would have ameliorated that disparate impact, all indicate an intent to discriminate on the basis of race and/or national origin. 104. The stated justifications and policy rationales for SB 4 are pre-textual and meant to obfuscate an impermissible discriminatory purpose.
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B. SB 4 violates the First Amendment by Limiting Protected Speech, Chilling Public Assembly, and Retaliating Against Public Officials and Private Citizens SB 4 Unconstitutionally Burdens Protected Speech by Public Officials
105. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 106. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. Art. V, cl. 1. 107. The First Amendment, incorporated and made applicable to Texas by the Fourteenth Amendment to the United States Constitution, prohibits viewpoint discrimination by the government under certain circumstances. 108. SB 4 impermissibly limits speech by public officials based on the content of their speech about a range of issues — namely, immigration policy and law enforcement practices — that are of immense public concern. 109. SB 4’s regulation of speech to an elected public official’s constituency is not narrowly tailored to address a compelling government interest.
SB 4 Unconstitutionally Chills Public Assembly 110. The First Amendment, incorporated and made applicable to Texas by the Fourteenth Amendment to the United States Constitution, prohibits the abridging of the right to peaceably assemble. 111. SB 4 impermissibly chills the right of TOPEF, MOVE, and the communities they serve to peaceably assemble.
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Defendants Filed a Retaliatory Lawsuit against Plaintiffs 112. Defendants have violated Plaintiffs El Paso County, Sheriff Wiles, and TOPEF’s First Amendment rights by retaliating against them through a malicious action in the Austin Division. 113. Plaintiffs’ filing of this lawsuit challenging SB 4 constitutes protected speech under the First Amendment. 114. Texas’s retaliatory suit against Plaintiffs in the Austin Division violated Plaintiffs’ protected speech. Texas had no legitimate, non-retaliatory reason for suing Plaintiffs in the Austin Division action. Indeed, the lawsuit was ultimately dismissed. 115. The purpose of Texas’ action against Plaintiffs was to unlawfully deter TOPEF and others from exercising their own constitutionally protected speech, in the form of their lawsuit challenging SB 4. 116. Plaintiffs, including TOPEF, were forced to divert additional resources to defend against Texas’ malicious, retaliatory — and at heart, baseless — action in the Austin Division. 117. Texas’s retaliatory suit against Plaintiffs in the Austin Division violated and continues to chill their right to petition the government and access to the courts. C. In Application, SB 4 is Used to Discriminate on the Basis of Race, National Origin,
and Gender in Violation of the Fourteenth Amendment’s Equal Protection Clause 118. Plaintiffs incorporate by reference all factual allegations in paragraphs 1-99 as if set forth herein. 119. The Fourteenth Amendment to the United States Constitution guarantees persons the equal protection of the laws, and prohibits the government from treating persons differently than similarly situated individuals.
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120. As applied, SB 4 impermissibly discriminates against Plaintiffs on the basis of race, national origin, and gender in violation of the Fourteenth Amendment’s guarantee of equal protection. 121. Defendants intentionally and discriminatorily apply SB 4 on the basis of race, national origin, and gender as evidenced by disparate impact on Latinos and Latin American immigrants. 122. Upon information and belief, there is disparate impact based on race, national origin, and gender in who is stopped by law enforcement officers in traffic stops, who is questioned about immigration status as permitted by SB 4, and who is subject to ICE detainers in local jails. When taking into consideration the totality of the circumstances, the disparate impact on Latinos and Latin American immigrants in the past two years shows that SB 4 is applied with an impermissibly discriminatory purpose.
VI. DECLARATORY JUDGMENT 123. In the alternative, Plaintiffs El Paso County and Sheriff Wiles’ adherence to the County’s adopted policies in relation to federal immigration enforcement comply with SB 4. 124. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 125. Plaintiffs have no adequate remedy at law. 126. Absent declaratory relief, Plaintiffs will continue to be harmed.
VII. PRAYER FOR RELIEF 127. WHEREFORE, Plaintiffs pray that the Court grant the following relief:
1) Declare SB 4 unconstitutional and invalid on its face, or, in the alternative, as applied; 2) Enjoin Defendants from enforcing SB 4;
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3) In the alternative, declare that El Paso and its County officials and their policies comply with state law, including SB 4;
4) Award Plaintiffs court costs and reasonable attorneys’ fees and grant any other relief to Plaintiffs as allowed by law and that the Court should deem fit.

DATED: December 13, 2019

Respectfully,
By: /s/ Mimi Marziani
GARZA GOLANDO MORAN Jose Garza Attorney-In-Charge garzpalm@aol.com State Bar No. 07731950 Michael Moran michael@ggmtx.com State Bar No. 2409285 Martin Golando martin.golando@gmail.com State Bar No. 24059153 115 E. Travis St., Ste. 1235 San Antonio, Texas 78205 (210) 892-8543 Attorneys for Plaintiffs EL PASO COUNTY; and RICHARD WILES, SHERIFF OF EL PASO COUNTY; JO ANNE BERNAL, COUNTY ATTORNEY OF EL PASO COUNTY, in their official capacity
Mimi Marziani State Bar No. 24091906 Texas Civil Rights Project 1405 Montopolis Dr. Austin, Texas 78741 T: (512) 474-5073 mimi@texascivilrightsproject.org

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Efrén C. Olivares State Bar No. 24065844 Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 T: (956) 787-8171 efren@texascivilrightsproject.org Attorneys for Plaintiff TEXAS ORGANIZING PROJECT EDUCATION FUND and MOVE TEXAS CERTIFICATE OF SERVICE I certify that, on December 13, 2019, I filed the foregoing Plaintiffs’ Second Amended Complaint for Declaratory Judgment and Injunctive Relief via the Court’s ECF/CM system, which will serve a copy on all counsel of record. Mimi Marziani Mimi Marziani
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 Case 5:17-cv-00404-OLG Document 273 Filed 12/13/19 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CITY OF EL CENIZO, et al,

§

Plaintiffs,

§

§

CITY OF AUSTIN,

§

Consolidated Plaintiff-Intervenor, §

§

v.

§

§

STATE OF TEXAS, et al.,

§

Defendants.

§

CIVIL ACTION NO. 5:17-cv-404

CITY OF AUSTIN’S FIRST AMENDED COMPLAINT IN INTERVENTION

The City of Austin (“Austin” or the “City’) files this Amended Complaint in Intervention

against the State of Texas (“Texas”), Governor Greg Abbott, and Texas Attorney General Ken

Paxton.

I. SUMMARY

1. The 2017 Texas Legislature enacted Senate Bill No. 4 (SB 4) to punish cities, counties and

college campuses that provide “sanctuary” to undocumented immigrants. SB 4 has been codified

as Texas Government Code § 752.051, et seq. The City challenges unconstitutional aspects of SB

4, seeking declaratory and injunctive relief under the First Amendment of the United States

Constitution.

2. SB 4 violates the U.S. Constitution’s right to free speech by penalizing the conduct of local

officials who “endorse” a policy that would contradict SB 4’s mandates.

II. PROCEDURAL HISTORY

3. Plaintiffs City of San Antonio, et al., filed suit against defendants Texas, Governor Greg

Abbott, and Attorney General Ken Paxton, seeking declaratory and injunctive relief to prevent

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implementation of SB 4. See Dkt. 1 in 5:17-cv-489-OLG (W.D. Tex.).1 Plaintiffs allege that SB 4 violates the United States Constitution and other federal constitutional and statutory provisions by invading the field of civil immigration enforcement, encouraging racial profiling, threatening local municipalities with fines and threatening local officials with removal from office for perceived non-compliance with state and federal immigration law. Id. at ¶¶ 104-143. Plaintiffs allege that the City of San Antonio, its officials, and its residents—along with organizational plaintiffs Texas Association of Chicanos in Higher Education (TACHE), La Union del Pueblo Entero (LUPE), and Workers Defense Project—will suffer substantial harms if the State is permitted to implement SB 4. Id. at ¶¶ 83-103. 4. The City of Austin intervened in that action, which was then consolidated into this current action. Dkt. 27. Currently, the plaintiffs in this action are the City of Austin; El Paso County; Richard Wiles, Sheriff of El Paso County in his Official Capacity; Jo Anne Bernal, County Attorney of El Paso County, in her Official Capacity; Texas Organizing Project Education Fund; City of San Antonio; Rey Saldaña; Texas Association of Chicanos in Higher Education; La Union del Pueblo Entero, Inc; Workers Defense Project; City of El Paso; MOVE Texas; Bexar County; and the Texas Association of Hispanic County Judges and County Commissioners.
III. PARTIES 5. Consolidated Plaintiff-Intervenor Austin is a home-rule city in the State of Texas. The City adopted its original Charter in 1909. In exercise of the City’s constitutional authority, the Charter describes the manner in which local officials, including a Mayor and Council, may be elected and removed from office. The Charter also reserves to the City all constitutional home-rule authority including the discretion to allocate resources and determine priorities in furtherance of the welfare,
1 The Court consolidated that case with the present case on June 6, 2017. Dkt. 27.
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health, morals, comfort, safety, and convenience of the City and its inhabitants. The Charter establishes the City’s governance structure: members of the governing body, the City Council, are elected from ten districts and a Mayor is elected at-large. The City Council appoints a City Manager who is the Chief Administrative Officer of the City. The City Manager nominates, and the City Council confirms, the Chief of Police. The City of Austin employs over 16,000 people. 6. Defendant State of Texas is a constituent political entity of the United States of America and subject to the laws and Constitution of the United States. 7. Defendant Greg Abbott (“Governor Abbott”) is the elected Governor of the State of Texas. Governor Abbott, who is sued in his official capacity, is the chief executive officer of the State of Texas and is responsible for the conduct of Texas agencies, officials, and personnel. Governor Abbott signed SB 4 into law on May 7, 2017. 8. Defendant Ken Paxton (“Attorney General Paxton” or “Paxton”) is the elected Attorney General for the State of Texas. The Attorney General is authorized “to institute proper court proceedings to enforce or protect any right of the public that is violated.” Agey v. Am. Liberty Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943). The Texas Constitution designates the Attorney General as the representative of the State in all suits and pleas to which the State may be a party. TEX. CONST. ART. IV, § 22. Attorney General Paxton is sued in his official capacity.
IV. JURISDICTION AND VENUE 9. The Court has jurisdiction under 28 U.S.C. § 1331 to decide the City’s claims under the United States Constitution. The Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., provides the Court with further remedial authority. 10. Venue properly lies within the Western District of Texas under 28 U.S.C. § 1391(b).
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V. FACTUAL ALLEGATIONS 11. The Texas Legislature has attempted on multiple occasions to pass laws that would punish “sanctuary” jurisdictions, including failed bills in 2011 and 2015. 12. At the beginning of the 2017 Texas legislative session, Governor Abbott made the punishment of “sanctuary” jurisdictions one of his top priorities. He complained that the federal government was not preventing undocumented immigrants from crossing the border and claimed that some law enforcement officials “are openly refusing to enforce existing law.” He then announced that “this is the session we will ban sanctuary cities.” 13. On or about February 6, 2017, Governor Abbott again announced that he would “hammer” the City of Austin. At an appearance on a radio talk show, Governor Abbott stated: “I’m putting the hammer down. This is offensive what is going on in Austin, Texas. It’s actually the county, which is Travis County, which is the county seat of Austin, Texas.” As part of his comments, Governor Abbott threatened to send public officials to jail—including sheriffs and mayors—if they fail to comply with civil detainer requests. 14. Between February 9 and February 12, 2017, U.S. Immigration and Customs Enforcement (“ICE”) began a series of raids that sent waves of terror through immigrant communities in Austin and across Central Texas. In the Austin and San Antonio areas, ICE conducted several dozen arrests, the majority of which concerned individuals who had committed no criminal offense. 15. On or about March 20, 2017, during a hearing in the United States District Court for the Western District of Texas, in the matter of U.S. v. Coronilla-Guerrero, Case No. 1:17-CR-132LY, U.S. Magistrate Judge Andrew W. Austin stated in open court to an ICE official:
There’s been questions about whether Austin’s being targeted. We had a briefing that your immediate supervisor, I guess, Agent Shaffer, came and briefed me and the magistrate judge, Judge Lane, at the very end of January that we could expect a big operation, agents coming in from out of town. There was going to be a specific
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operation, and it was at least related to us in that meeting that it was a result of the sheriff’s new policy that this was going to happen. A. SB 4 Increases Immigration Enforcement and Threatens to Penalize Municipalities and Policymakers Who Decline to Follow the State’s Unconstitutional Demands 16. Governor Abbott signed SB 4 into law on May 7, 2017, and the legislation became effective September 1, 2017. 17. SB 4 applies to the governing body of a municipality, as well as to officers or employees of the municipality. Tex. Gov’t Code § 752.051. SB 4 specifically states that its application includes municipal police departments and municipal attorneys. 18. SB 4 prohibits the City, and employees of the City, from endorsing any policy that would prohibit or limit the enforcement of federal immigration law. Gov’t Code § 752.053. The statute specifically states that “a local entity…may not… adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws.” Id. 19. The statute defines “local entity” as “the governing body of a municipality” and “an officer or employee of or a division, department, or other body that is part of a municipality[.]” Id. At 752.051.2 20. The law does not define endorsement but prescribes harsh penalties for this vague term. 21. If the City or an employee of the City does not comply with SB 4, he or she may be subject to gratuitous fines up to $25,500 for each day of noncompliance after the first day. The State may bring an action to impose these fines if any officer or employee of the municipality fails to comply with SB 4. Tex. Gov’t Code § 752.056. The 2019 Texas Legislature amended SB 4 to explicitly state that it waives governmental immunity for cities and counties.
2 Seemingly, the definition would include any employee of the City. 5

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22. If the State believes a local official holding elective or appointive office refuses to comply with SB 4—for example, by endorsing a policy that would limit the enforcement of federal immigration law—he or she will be subject to a quo warranto action seeking to remove the official from office. Tex. Gov’t Code § 752.056. 23. On multiple occasions, the City’s Mayor and City Council have adopted resolutions expressing the City’s intent to be a “Welcoming City” for immigrants and all communities, regardless of race, religion, ethnicity, status, or national origin. The City has also issued other resolutions expressing support for all in Austin and opposing harmful policies of the state and federal government.3 In support of this objective, the City provides social services and other support to local immigrant communities, without regard to perceived immigration status. SB 4’s vague description allows the State to criminalize these resolutions as prohibited “endorsements.” 24. Upon introduction of SB 4, multiple elected officials at the City publicly expressed their opposition to SB 4 and its likely negative impact on the local community. For example, Council Member Greg Casar, whose district includes many residents born outside of the United States, has participated in demonstrations against SB 4 and has given local and national media interviews highlighting the potential harms of this new law. Council Member Pio Renteria gave public testimony describing how the combined effects of SB 4 and recent ICE raids have led to immigrant communities avoiding public settings, including attendance at his church. This speech has been made since SB 4 was enacted. The City Council will continue to speak in support of residents of
3 See City of Austin Resolution 20180510-048 (identifying Austin as a welcoming city that serves and protects residents regardless of immigration status, and offering support of Austin Sanctuary Network and its residents denied asylum protections); Resolutions 20161215-066 and 20170276-018 (allocating funding to local organizations to provide legal services to immigrants); Resolution 20180628-124 (rejecting zero tolerance policy and emphasizing the City’s support for inclusivity); Resolution 20170518-045 (reacting to SB 4 as a deterrent to safety and cooperation with law enforcement, which disparately impacts safety for both the immigrant community and the community at large); Resolution 20170518-045 (directing City Manager to pursue litigation fighting both state and federal anti-immigrant policies); Resolution 20171005-034 (denouncing the 2017 federal administration’s Deferred Action on Childhood Arrivals rescission).
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the City of Austin. This includes opposing harmful punitive policies of the federal and state governments. 25. Beyond elected officials, the State could threaten its endorsement penalties against unelected City officials and employees, including the City Manager, Police Chief, and City Attorney for simply answering questions at town halls or in interviews, or carrying out their job duties as required by the City Charter or policy direction through the City Council. 26. As endorsement is not defined, the State can use the sword of enforcement to broadly restrict the speech of City officials and employees based on content and viewpoint. 27. In November 2018, Attorney General Paxton initiated an SB 4 enforcement action against the City of San Antonio, San Antonio’s City Manager Cheryl Sculley (“Sculley”), and its Police Chief William McManus (“McManus”).4 Among other claims (including claims that San Antonio officials limited federal immigration enforcement), Paxton claimed that the City of San Antonio, Sculley, and McManus endorsed a policy in violation of SB 4 by implementing San Antonio Police Department (“SAPD”) General Manual Procedure 618.11. Pursuant to the procedure, SAPD assists crime victims and witnesses in obtaining U-visas, officers will not detain and/or arrest individuals based on the fact or suspicion that they are in the United States illegally, and SAPD officers will not refer persons to ICE unless the person has a federal deportation warrant. 28. The City of Austin similarly expects that the State could bring such an action against Austin and its employees based on actions or the Austin Police Department’s policies concerning, for example, inquiring into immigration status or assisting people seeking to obtain U-visas. As such, the City faces a credible threat of enforcement of restrictions on speech.
4 This action is currently pending as Paxton v. McManus, et al., D-1-GN-18-007133 (345th Jud. Dist. Ct., Travis County).
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Case 5:17-cv-00404-OLG Document 273 Filed 12/13/19 Page 8 of 10 VI. CAUSE OF ACTION
FIRST AMENDMENT OF THE U.S. CONSTITUTION 29. The City hereby incorporates by reference the preceding paragraphs 1 through 28. 30. SB 4 violates the First Amendment of the United States Constitution by penalizing the protected speech of City of Austin officials, both elected officials and unelected employees, who “endorse” a policy that would contradict SB 4 mandates. Under federal law, any statute restricting protected speech is deemed to be overbroad and invalid. 31. The City of Austin and its officials and employees will suffer irreparable harm if SB 4’s endorsement provisions are not enjoined. 32. Additionally, SB 4 constitutes impermissible content-based, viewpoint discrimination, as it only applies to prohibit certain speech based on the viewpoint and content of the speech. 33. The City of Austin and its officials and employees will suffer irreparable harm if SB 4’s endorsement provisions are not enjoined.
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PRAYER WHEREFORE, the City of Austin seeks the following relief:
A. A declaration that the endorsement provisions of SB 4 are unconstitutional under the First Amendment of the United States Constitution;
B. A permanent injunction barring Texas from enforcing the endorsement provisions of SB 4; and
C. Any further relief that the Court deems fit and proper.
Respectfully submitted, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ Sameer S. Birring SAMEER S. BIRRING Assistant City Attorney State Bar No. 24087169 sameer.birring@austintexas.gov Telephone (512) 974-3042 ARIANE V. ARTH Assistant City Attorney State Bar No. 24098553 ariane.arth@austintexas.gov Telephone: (512) 974-3454 City of Austin Law Department P.O. Box 1546 Austin, Texas 78767-1546 Facsimile: (512) 974-1311
ATTORNEYS FOR CONSOLIDATED PLAINTIFF INTERVENOR CITY OF AUSTIN
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Case 5:17-cv-00404-OLG Document 273 Filed 12/13/19 Page 10 of 10 CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on attorneys of record for all parties, via the Court’s ECF/CM system, in compliance with the Federal Rules of Civil Procedure, on this 13th day of December, 2019.
/s/ Sameer S. Birring SAMEER S. BIRRING
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