The Texas SB 4 immigration law would make it a state crime to cross into Texas from a foreign country anywhere other than a lawful port of entry, and it would let state judges order people back to Mexico. Governor Greg Abbott signed it on December 18, 2023, but federal courts have kept it on hold since before its scheduled March 5, 2024 effective date. As of early 2026, SB 4 remains blocked, and no one has been arrested, prosecuted, or removed under it.
What SB 4 Would Criminalize
The law adds a new chapter to the Texas Penal Code creating two offenses. “Illegal Entry” applies to a non-citizen who enters or tries to enter Texas directly from a foreign country at any point other than a lawful port of entry. “Illegal Re-Entry” applies to a non-citizen who enters, tries to enter, or is found in Texas after having been deported, removed, or excluded from the United States, or after leaving while such an order was outstanding.1Texas Legislature Online. Texas SB 4 88(4) – Enrolled Version
Immigration enforcement has historically been a federal responsibility. SB 4 is an attempt by Texas to build a parallel state system, with its own charges and its own removal process.
Penalties
The punishment scales with the offense and the person’s history.
A first Illegal Entry charge is a Class B misdemeanor, carrying up to 180 days in county jail and a fine of up to $2,000. A second is a state jail felony, carrying 180 days to two years in a state jail facility and a fine of up to $10,000.1Texas Legislature Online. Texas SB 4 88(4) – Enrolled Version2Texas Attorney General. Texas Penal Code Offenses by Punishment Range
Illegal Re-Entry is tiered by what led to the prior removal:
- Base offense: Class A misdemeanor, up to one year in jail and a fine of up to $4,000.
- Third-degree felony (two to ten years) if the prior removal followed two or more misdemeanor convictions involving drugs or crimes against a person, or an exclusion on national security grounds.
- Second-degree felony (two to 20 years) if the prior removal followed a felony conviction.3Texas House Research Organization. SB 4 Bill Analysis
Refusing to comply with a state judge’s removal order is a separate second-degree felony, also punishable by two to 20 years in prison.4Supreme Court of the United States. United States v. Texas, 23A814
Who Can Arrest, and Where
SB 4 authorizes Texas peace officers, including local police and state troopers, to arrest people suspected of either offense on probable cause. The officer does not have to have personally witnessed the crossing. Critics have argued that the standard is loose enough that people could be detained anywhere in the state on circumstantial evidence rather than direct observation of a border crossing.3Texas House Research Organization. SB 4 Bill Analysis
The law bars arrests for these offenses at certain locations:
- Public or private schools
- Churches and other places of worship
- Health care facilities
Officers and local government employees are given immunity from state civil suits arising from enforcement, and local governments must cover the costs of any federal civil rights claims.
State-Ordered Return to Mexico
The most novel feature of SB 4 is that it lets a state judge order a person to return to the foreign country they entered from. Nothing like that has existed in the U.S. legal system before. There are two pathways.
Dismissal Before Conviction
A magistrate or judge can dismiss the criminal charge and order the person to return to Mexico before any conviction, but only if all of the following are true:
- The person agrees to the order.
- The person has no prior conviction under the Illegal Entry or Re-Entry statutes and has not previously received a dismissal under this process.
- The person is not charged with any other offense at the Class A misdemeanor level or higher.
- The arresting agency has collected the person’s identifying information and run it through criminal and national security databases.1Texas Legislature Online. Texas SB 4 88(4) – Enrolled Version
Mandatory Removal After Conviction
If a person is convicted of Illegal Entry or Illegal Re-Entry and finishes any jail or prison sentence, the judge must issue a removal order. There is no discretion to skip it.4Supreme Court of the United States. United States v. Texas, 23A814
In both cases, the order sends the person back to the country they crossed from. In practice that is Mexico in almost every case, regardless of nationality. A person from Guatemala, Venezuela, or elsewhere who came through Mexico would be ordered back to Mexico.
Mexico’s foreign ministry has said it will not accept people returned under state removal orders, calling immigration a matter between federal governments. That leaves the mechanism with no working destination even if the law were allowed to operate.
Asylum, DACA, and TPS
SB 4 contains no exception for people seeking asylum. Someone fleeing persecution who crosses between ports of entry, which is how many asylum seekers arrive, could be arrested and charged like anyone else. The pre-conviction dismissal pathway only offers a return to Mexico, not access to the federal asylum process.
This is where the law runs hardest against federal obligations. The United States is party to the Refugee Convention and the Convention Against Torture, both of which prohibit returning people to countries where they face persecution or torture. In her dissent when the Supreme Court briefly addressed SB 4, Justice Sonia Sotomayor said the law could result in Texas removing or incarcerating non-citizens with valid asylum claims.4Supreme Court of the United States. United States v. Texas, 23A814
The law is also silent on people who hold federal statuses like Temporary Protected Status or Deferred Action for Childhood Arrivals. DACA recipients are not in “lawful immigration status” under federal law, but they are authorized to remain and are not subject to removal while their deferred action is in effect.5U.S. Citizenship and Immigration Services. Frequently Asked Questions – Consideration of Deferred Action for Childhood Arrivals (DACA) Whether Texas courts would treat federal deferred action as a defense to a state Illegal Entry charge is an open question.
Why Federal Courts Have Blocked It
The core legal problem is federal preemption. Under the Supremacy Clause, federal law overrides conflicting state law, and immigration is one of the clearest areas of federal authority. In Arizona v. United States (2012), the Supreme Court struck down most of Arizona’s SB 1070, which had tried to create state-level immigration enforcement tools. The Court held that a state law fails if Congress meant to occupy the field, and it also fails if it obstructs how Congress designed the federal system, whether by criminalizing conduct Congress chose not to criminalize or by letting state officers make immigration arrests that interfere with federal removal discretion.6Justia. Arizona v. United States, 567 U.S. 387
SB 4 goes further than Arizona’s law did. Arizona tried to piggyback on federal enforcement. Texas has built an independent criminal and removal system. Federal courts reviewing SB 4 have found it likely conflicts with federal authority on several fronts: it criminalizes conduct already covered by federal immigration law, it sets up a state removal process that bypasses federal immigration courts, and it interferes with executive discretion over when and how to remove non-citizens.
Where the Case Stands
The Justice Department under President Biden sued in January 2024, arguing SB 4 violated the Supremacy Clause and the Foreign Commerce Clause.7United States Department of Justice. Justice Department Files Lawsuit Against the State of Texas Regarding Unconstitutional SB 4 Immigration Law A federal district court issued a preliminary injunction, and the Supreme Court weighed in on March 19, 2024, leaving that injunction in place.4Supreme Court of the United States. United States v. Texas, 23A814
In March 2025, after the change in administration, the Trump Justice Department voluntarily dropped the federal challenge. Civil rights organizations and local governments that had joined the litigation kept pressing the case. In July 2025, a three-judge Fifth Circuit panel ruled that SB 4 was preempted and kept the injunction in place.
Texas asked for rehearing before the full Fifth Circuit. The en banc court granted the request, vacated the July 2025 panel opinion, and scheduled oral argument.8Fifth Circuit Court of Appeals. United States v. Texas, No. 24-50149 As of early 2026, the en banc rehearing is underway and SB 4 remains blocked. If the full Fifth Circuit rules for Texas, the case will almost certainly reach the Supreme Court, and the ruling would be the most significant statement on state immigration authority in decades.