Texas Senate Bill 4 is a 2023 state law that created Texas criminal offenses for entering the state from a foreign country outside an official port of entry, and it authorized state judges to order people charged under the law to return to Mexico. As of mid-2026, the entry and reentry crimes may be enforced by Texas peace officers after the Fifth Circuit lifted the main injunction, but a separate federal court order still blocks the judicial return-order provisions. The constitutional question of whether federal law preempts the Texas SB 4 immigration law has not yet been decided.
What SB 4 Makes a Crime
Two new offenses sit at the core of the law.
Section 51.02 of the Texas Penal Code makes it a crime for a noncitizen to enter or attempt to enter Texas directly from another country at any place other than a port of entry.1State of Texas. Texas Penal Code PENAL 51.02 – Illegal Entry from Foreign Nation A first offense is a Class B misdemeanor, carrying up to 180 days in county jail and a fine of up to $2,000.2Texas Attorney General. Texas Penal Code Offenses by Punishment Range A prior conviction under the same section bumps the charge to a state jail felony, punishable by 180 days to two years in a state jail and a fine of up to $10,000.3State of Texas. Texas Penal Code PENAL 12.35 – State Jail Felony Punishment
Section 51.03 targets people who enter or are found in Texas after previously being denied admission, deported, or removed, and anyone who left the country while a removal order was still outstanding.4State of Texas. Texas Penal Code 51.03 – Illegal Reentry by Certain Aliens The base charge is a Class A misdemeanor, up to one year in jail and up to a $4,000 fine. From there the penalties escalate:
- Third-degree felony, 2 to 10 years in prison and up to a $10,000 fine, when the earlier removal followed two or more misdemeanor convictions involving drugs or crimes against another person, or when the person was excluded on terrorism-related grounds or removed under certain federal enforcement provisions.5State of Texas. Texas Penal Code PENAL 12.34 – Third Degree Felony Punishment
- Second-degree felony, 2 to 20 years and up to a $10,000 fine, when the earlier removal followed any felony conviction.6State of Texas. Texas Penal Code PENAL 12.33 – Second Degree Felony Punishment
The second-degree enhancement applies after any felony, not only violent ones. A past drug possession felony or a property crime conviction counts.
Who Has a Defense Under the Law
Section 51.02 includes affirmative defenses, meaning a defendant can avoid conviction by proving one of them at trial. A person has a defense if the federal government has granted them lawful presence or asylum under 8 U.S.C. § 1158, if their conduct would not violate the federal improper entry statute at 8 U.S.C. § 1325(a), or if they were approved for the Deferred Action for Childhood Arrivals program between June 15, 2012, and July 16, 2021.1State of Texas. Texas Penal Code PENAL 51.02 – Illegal Entry from Foreign Nation
Two programs are explicitly excluded from counting as lawful presence: the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and any executive-branch program that succeeded or resembled the original DACA program but was not enacted by Congress. The defense turns on the source of the authorization, not just the existence of paperwork.
Because these are affirmative defenses rather than bars to arrest, a person who holds a green card or an approved visa petition could still be arrested under the statute and would have to assert the defense in court. The protection kicks in at trial, not at the roadside.
Judge-Ordered Returns to Mexico
SB 4 added Article 5B.002 to the Texas Code of Criminal Procedure, authorizing a magistrate or judge, at a defendant’s initial appearance on a Chapter 51 charge, to dismiss the case if the person agrees to leave Texas and the United States through a designated port of entry. The judge must first confirm the defendant is not facing other serious criminal charges in state or federal court. The order specifies how the person will travel and which port of entry they will use. The statute contemplates returns only to Mexico, which creates a practical gap for people who crossed from Mexico but are nationals of other countries.
Refusing to comply with a return order once it has been issued is a separate offense under Section 51.04, charged as a second-degree felony and punishable by 2 to 20 years in prison and up to a $10,000 fine.7State of Texas. Texas Penal Code 51.04 – Refusal to Comply With Order to Return to Foreign Nation The jump is sharp. A first entry charge caps at 180 days in county jail; refusing the judge’s order on that same case can expose the person to up to two decades in prison.
Mexico’s secretary of foreign relations has said Mexico “categorically rejects any measure that allows state or local authorities to detain and return nationals or foreigners to Mexican territory,” which raises questions about whether the ports of entry would accept people sent back under a Texas order even if the provision were in force.
Who Can Arrest You and Where They Can’t
Any Texas peace officer may make a warrantless arrest based on probable cause that someone committed a Chapter 51 offense. That includes local police, sheriff’s deputies, constables, and state troopers. The officer needs evidence of the entry itself, not a hunch about immigration status.
Certain locations are off-limits for arrests under Chapter 51 regardless of probable cause: schools, places of worship, healthcare facilities, and locations providing forensic medical examinations for sexual assault survivors. The carveouts are meant to keep enforcement from deterring people from sending children to school, seeking medical care, or reporting a crime.
Section 2.132 of the Code of Criminal Procedure already prohibits racial profiling by Texas officers in stops, searches, and arrests, and it names “Hispanic” as a covered category. Whether that existing prohibition is enough to prevent profiling during SB 4 enforcement has been contested, with critics arguing the nature of the law creates tension with those protections.
Where the Law Stands in Court
SB 4 has been in litigation since it was signed. The U.S. Department of Justice and several advocacy groups sued, arguing that immigration enforcement is a federal power and that the law is preempted under the Supremacy Clause. A federal district court issued a preliminary injunction blocking the law before it took effect, and that injunction held for more than two years.
On April 24, 2026, the full Fifth Circuit Court of Appeals vacated the injunction in a 10-7 decision, ruling that the plaintiffs lacked standing. The court said it was not addressing the constitutional merits, so the preemption question remains open.
A separate challenge in the Western District of Texas has blocked the provisions that let state magistrates issue return orders and the related felony for refusing to comply. The court’s concern was that state judges lack the immigration-law expertise needed to issue what function as deportation orders.
The practical picture as of mid-2026: the criminal offenses under Sections 51.02 and 51.03 may be enforced by Texas peace officers, while the judicial return-order mechanism under Article 5B.002 and the refusal felony under Section 51.04 remain blocked. The underlying constitutional question has not been decided by any court, and the status of each provision can shift as the cases continue.