The new immigration law in Texas, Senate Bill 4, makes it a state crime to cross into Texas from another country anywhere other than an official port of entry, and it gives state judges the power to order someone to leave the country. Signed in late 2023 and originally set to take effect in March 2024, the law spent more than two years tied up in federal court. As of late May 2026, the Fifth Circuit Court of Appeals has lifted the injunction that had blocked it, so Chapter 51 of the Texas Penal Code is currently enforceable. Further appeals, likely including another trip to the U.S. Supreme Court, are still expected.
What Counts as Illegal Entry Under Texas Law
Under Section 51.02 of the Texas Penal Code, a noncitizen who crosses into Texas directly from a foreign country anywhere other than a lawful port of entry commits the offense of illegal entry. A first offense is a Class B misdemeanor, which carries up to 180 days in county jail and a fine of up to $2,000.1State of Texas. Texas Penal Code Section 51.02 – Illegal Entry From Foreign Nation2State of Texas. Texas Penal Code 12.22 – Class B Misdemeanor Punishment A second conviction becomes a state jail felony, with 180 days to two years in state jail and a fine of up to $10,000.3State of Texas. Texas Penal Code 12.35 – State Jail Felony Punishment
The statute lists affirmative defenses a defendant can raise at trial. You have a defense if the federal government has granted you lawful presence, if you have been granted asylum under federal law, or if you were approved under the Deferred Action for Childhood Arrivals program between June 15, 2012, and July 16, 2021. The law specifically excludes the Deferred Action for Parents of Americans program and any successor programs similar to DACA as valid defenses.1State of Texas. Texas Penal Code Section 51.02 – Illegal Entry From Foreign Nation
Illegal Reentry Is a Separate, Harsher Offense
Section 51.03 targets anyone who reenters or is found in Texas after being deported, removed, denied admission, or after departing while a removal order was pending. The baseline charge is a Class A misdemeanor, which carries up to one year in jail and a fine of up to $4,000.4State of Texas. Texas Penal Code Section 51.03 – Illegal Reentry by Certain Aliens
The charge rises to a third-degree felony (two to ten years in prison, up to a $10,000 fine) if the person was previously removed after two or more misdemeanor convictions involving drugs or crimes against a person, was excluded on national security grounds, or was removed under certain federal terrorism or criminal alien provisions. It rises to a second-degree felony (two to twenty years in prison, up to a $10,000 fine) if the person was removed after a felony conviction.5State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
One important detail: the reentry statute treats a state-level return order from a Texas judge as a form of “removal.” If you were ordered to leave through the state process and you come back, you can be charged with reentry, not just illegal entry.4State of Texas. Texas Penal Code Section 51.03 – Illegal Reentry by Certain Aliens
State Judges Can Order People to Leave the Country
The most unusual part of SB4 is the authority it gives state magistrates and judges to issue a “return order” sending a person to a port of entry on the Texas-Mexico border. It is not federal deportation, but it works the same way in practice.
A magistrate can issue a return order at a defendant’s initial appearance if there is probable cause for an illegal entry or reentry charge. A judge can also issue one later, dismissing the criminal charge in exchange for the person’s agreement to leave. The person must consent, must have no prior Chapter 51 convictions, and must not be facing other charges at the Class A misdemeanor level or above.6State of Texas. Texas Code of Criminal Procedure Article 5B.002 – Order to Return to Foreign Nation
Before any return order issues, the arresting agency must collect fingerprints, photographs, and other biometric data and cross-reference it against local, state, and federal criminal databases and federal national security watch lists. The order itself has to name the port of entry the person will be taken to and the law enforcement agency responsible for the transport.6State of Texas. Texas Code of Criminal Procedure Article 5B.002 – Order to Return to Foreign Nation
If a person is convicted under Chapter 51 instead of accepting a voluntary return order, the judge is required to include a return order in the judgment. That order kicks in once the jail or prison sentence is served.6State of Texas. Texas Code of Criminal Procedure Article 5B.002 – Order to Return to Foreign Nation
Places Where Officers Cannot Arrest
SB4 bars arrests for Chapter 51 offenses in several protected locations:
- Public and private primary and secondary schools, when the person is there for educational purposes.
- Churches, synagogues, and other established places of religious worship.
- Hospitals, clinics, and other healthcare facilities, but only if the person is there to receive medical treatment. Someone accompanying a patient does not get the same protection.
- SAFE-ready facilities and other sites providing forensic medical examinations to sexual assault survivors, and again only if the person is there to receive an examination.7LegiScan. Texas Senate Bill 4 Supplement
College and university campuses are not on the list. The protection covers K-12 schools only.
Why the Law Was Blocked and Where It Stands Now
Immigration enforcement has been treated as a federal responsibility for more than a century. In Arizona v. United States (2012), the U.S. Supreme Court struck down most of an Arizona law that tried to create state-level immigration crimes, holding that Congress has occupied this field so completely that even complementary state laws are preempted.8Legal Information Institute. Arizona v. United States
The federal government and civil rights groups sued to block SB4 on the same preemption theory. A federal district court agreed and enjoined the law. The case bounced between the Fifth Circuit and the Supreme Court through 2024 and 2025, with enforcement toggling on and off at times within hours.9Supreme Court of the United States. United States v. Texas
In August 2025, the full Fifth Circuit took the case en banc and vacated an earlier panel opinion.10United States Court of Appeals for the Fifth Circuit. United States of America v. State of Texas The en banc court later issued an opinion vacating the preliminary injunction. As of late May 2026, that injunction is lifted and the law is enforceable. The case is widely expected to return to the Supreme Court, so the enforcement picture can change again on short notice. The practical takeaway: when an injunction is in place, officers cannot arrest and prosecutors cannot charge under Chapter 51; when it lifts, enforcement can begin immediately.
Who Pays for Enforcement
A companion law, Senate Bill 8, created the Sheriff Immigration Law Enforcement Grant Program, administered by the Texas Comptroller. Sheriffs who have signed an immigration law enforcement agreement with the state can apply starting January 1, 2026.11Texas Comptroller of Public Accounts. Sheriff Immigration Law Enforcement Grant Program Senate Bill 8 Grant amounts are set by county population:
- Under 100,000 residents: $80,000
- 100,000 to 499,999: $100,000
- 500,000 to 999,999: $120,000
- 1 million or more: $140,00011Texas Comptroller of Public Accounts. Sheriff Immigration Law Enforcement Grant Program Senate Bill 8
The funds cover a two-year period and may be spent on personnel pay, equipment, training, inmate confinement costs, and administrative work tied to the enforcement agreement. Only costs not already reimbursed by the federal government qualify.