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Turning Up the Heat on the Immigration Issue in the Texas Legislature

By Michael W. Fox, Esq.

Those who follow Texas legislature know it is not really until April and May that the legislative process really kicks into high gear. Although it meets in regular session only five months every 2 years, most voting on substantive legislation occurs in that two month period. Highly contentious matters that take a lot of legislative time can block others from consideration.

My guess is that the legislative calendar just got a lot "tighter" as the state attorney general, Greg Abbott issued an opinion that two controversial measures that would crack down on employer's for hiring illegal aliens would not be pre-empted by the federal immigration law.

The question presented was:

"If Texas legislation (1) provided for the suspension or revocation of the business licensure of employers of unauthorized aliens; (2) relied solely upon a federal determination of immigration status; and (3) did not impose civil or criminal sanctions, would the law be permissible under the U.S. Constitution?"

Attorney-General Abbott was not having to go too far out on a limb since he only opined that if the closely followed an Arizona law that did the same and the 5th Circuit Court of Appeals followed the 9th Circuit's holding in Arizona Contractors Association, Inc. v. Candelaria the law would be permissible. (GA-0695).

The Texas legislature has a host of bills dealing with immigration. Among them are:

• HB 48, Relating to the suspension of certain licenses held by employers for the knowing employment of persons not lawfully present in the United States;
• HB 254, Relating to restricting illegal immigrants to certain geographic regions;
• HB 261, Relating to the enforcement of state and federal laws by certain governmental entities;
• HB 266, Relating to regulating the provision of benefits and services to, and the verification of the employment status of, immigrants and to enforcing laws relating to immigrants; providing civil and criminal penalties;
• HB 276, Relating to the requirement that state agencies report the cost of services and benefits provided to unlawful immigrants;
• HB 404, Relating to the enforcement of state and federal laws governing immigration by certain governmental entities;
• HB 416, Relating to a requirement that a recipient of money from the Texas Enterprise Fund participate in a federal work eligibility verification program;
• HB 622, Relating to the suspension of certain licenses held by employers for the knowing employment of persons not lawfully present in the United States;
• HB 658, Relating to requiring governmental entities to participate in the federal electronic verification of work authorization program;
• HB 1061, Relating to the requirement of citizenship or lawful presence in the United States for issuance or renewal of certain occupational licenses, driver's licenses, and identification certificates;
• HB 1278, Relating to the proof of identity and residency required of an applicant for a driver's license or personal identification certificate;
• HB 2222, Relating to a prohibition on law enforcement inquiries regarding the nationality or immigration status of a victim of or witness to a criminal offense;
• SB 357, Relating to a prohibition against the knowing employment of persons not lawfully present in the United States and the suspension of licenses held by certain employers for the knowing employment of those persons;
• SB 358, Relating to the enforcement of state and federal laws governing immigration by certain governmental entities.

Some of these will no doubt be among the heated issues being fought at the end of the session.

Hat tip to DLR ($) for the story on the AG's opinion.

Full post as published by Jottings By An Employer's Lawyer on March 09, 2009 (boomark / email).