Is Texas a Sanctuary State?

Even before he entered the race for governor, Democrat Bill White faced attacks for running a “sanctuary city" as mayor of Houston, where officers don't inquire about immigration status during routine patrols and investigations.

In early December, the Republican Party of Texas posted a web ad that asked, “Like Sanctuary Cities? White’s Houston was one.” The charge again cropped up in a leaked February memo from Dave Carney, an adviser to Gov. Rick Perry's campaign, that defined White as “a big-city trial lawyer, anti-gun, sanctuary-city-promoting, Clinton protégé DC politician." Since then, Perry spokesman Mark Miner has casually thrown out the sanctuary city pejorative in campaign news releases. 

Houston officials, from former Police Chief Harold Hurtt to current Mayor Annise Parker, have rejected the label. And a comparison of Houston's policy under White and that of the Texas Department of Public Safety under Perry reveals little difference between the two — and their respective rationales are almost identical. So if Houston is a sanctuary city, is Texas a sanctuary state?

"Yes, it is," said Rebecca Forest, president of the Immigration Reform Coalition of Texas, a Tea Party-friendly group that, like Perry, criticizes sanctuary cities and promotes border security. "The governor, I'm sorry to say, is on the wrong track. He should be doing the same thing as Arizona."

Perry's campaign obviously disagrees. But Arizona's tough new law granting local police the power to question and detain suspected illegal immigrants has added a new twist to this ongoing quibble. Perry said on Friday that the Arizona law “would not be the right direction for Texas” because “some aspects of the law turn law enforcement officers into immigration officials by requiring them to determine immigration status during any lawful contact with a suspected alien, taking them away from their existing law enforcement duties, which are critical to keeping citizens safe.”

That comment echoes White's explanation of his position back in 2005, when local activists began passing around a petition seeking to repeal the police policy often cited as the evidence of its "sanctuary" status. "Diverting our police officers to enforce federal immigration law would reduce the time they can spend responding to citizens' calls and investigating crime," White said. 

While no legal definition exists, state GOP officials justify their shots at White by citing a 2007 report by the U.S. Justice Department that describes sanctuary cities as "jurisdictions that may have state laws, local ordinances, or departmental policies limiting the role of local law enforcement agencies and officers in the enforcement of immigration laws.” The report cites other cities for having sanctuary policies — but does not mention Houston, though it fell under the study's purview. Neither does it mention any of the major cities in Texas with similar policies, such as Austin and El Paso. It also does not mention the state DPS.

Yet the GOP insists White’s Houston should be considered one and that Perry’s public safety department shouldn’t. “There’s no question that Houston fits that definition,” said Bryan Preston, a spokesman for the Texas Republican Party.  

Preston points to General Order 500-5, an internal document signed by then-Houston Police Chief Sam Nuchia in 1992, more than a decade before White took office. Based on the premise that officers must rely on the cooperation of everyone in their jurisdiction — including illegal immigrants — to solve crimes and arrest suspects, the policy forbade officers from making inquiries "as to the citizenship status of any person" or detaining or arresting people solely on the belief that they are in the country illegally. The order, however, did not prevent them from contacting federal immigration officials about criminal aliens or assisting them with matters of "mutual concern.” In addition, the policy has since been clarified by another order outlining how local officers would cooperate with federal enforcement agencies, and specifically giving them permission to inquire into the immigration status of people arrested for other crimes.

“That’s ancient,” said Michael Moore, White's campaign manager and his chief of staff during his six-year term in office, of General Order 500-5. “I don’t know why they keep rolling that out.”

Is too! Is not!

Catherine Frazier, Perry's campaign spokeswoman, said his campaign cites the order because “that’s what separates Houston from the rest of Texas.”  

Preston agreed: “If that wasn’t on there,” he said of General Order 500-5, “we’d probably have less grounds to say it’s a sanctuary city. But with that policy being there, and the way it matches up against the DOJ’s definition, it’s a slam dunk.”

Why doesn’t state DPS policy and practice fit the same federal definition? The DPS “does not state that officers cannot inquire about immigration status. DPS can inquire status and report suspicion to [U.S. Customs and Border Protection] even if a suspect does not end up getting arrested,” Frazier said in an e-mail.

Frazier is technically correct. The policy does not say an officer “cannot inquire” into immigration status. It says they “will not engage” in immigration law enforcement. Here’s the full policy citation: “Members of this Department will not engage in the enforcement of Federal Immigration Statutes by conducting road checks or business and residence searches unless assisting appropriate federal officers who have properly requested such assistance.”

That, again, mirrors the current policy in Houston, where officers do not take it upon themselves to check the immigration status of those not legally detained for other reasons or to enforce immigration laws. But they do work actively with federal authorities on enforcement, and they routinely check the immigration status of people arrested for other crimes.

In 2006, Hurtt, the former police chief, signed General Order 500-08, clarifying the previous order that is cited by the Perry campaign. The more recent order states that officers have the discretion to check the wanted status of anyone legally detained, and it outlines procedures for handing over to federal authorities anyone wanted for illegal immigration. It also requires jail personnel to ask the citizenship status of all arrested criminal offenders as part of the booking process and notes that Immigration and Customs Enforcement officials will be allowed full access to Houston jails. 

Anyone booked without valid identification is processed via an Automated Fingerprint Identification System. “We check everyone that comes through the system,” Moore said. “All the databases we have [now] weren’t always there,” he admitted, “but they are [there] now, and we use them.”

Perry's campaign also cites a 2006 Congressional Research Service report that lists Houston as one of more than 30 cities with sanctuary policies. A more recent report, however, notes Houston’s efforts to step up their collaboration with federal immigration officials.  

Also in 2006 — the same year Houston updated its policy — Bob Rutt, then a special agent in charge of U.S. Immigration and Customs Enforcement in Houston, told the Houston Chronicle, "Houston is not a sanctuary city, by the definition. They do cooperate with us.”

DPS: “We do not enforce federal immigration laws”

Much like Houston, the Texas Department of Public Safety doesn't allow its troopers to stop individuals solely based on the suspicion that they might be illegal immigrants. "We do not enforce federal immigration laws," said Tela Mange, a DPS spokeswoman. "If, for some reason, a trooper on a traffic stop suspects that someone may not be here legally, the trooper can contact ICE for assistance, but we can't detain that person solely because we think they may not be here legally."

The Texas Code of Criminal Procedure outlines situations in which arrests without warrants are lawful: Generally, they must have probable cause of a crime. Sometimes immigration cases are civil matters, which are addressed in federal immigration courts, and not violations of state penal code, said James McLaughlin Jr., general counsel and executive director of the Texas Police Chiefs Association. 

Of course, sometimes immigration violations are criminal. Police agencies have the authority, for instance, to arrest illegal immigrants if they are wanted for criminal violations, such as defying a deportation order or re-entering the country after deportation. Houston officers are required to check for such warrants during traffic stops and arrests. 

Even if local officers were granted more authority by the Legislature — and were trained in the complex task of determining suspects' immigration status, or "alienage" — there aren't enough of them to do the job, said Charley Wilkison, public affairs director with the Combined Law Enforcement Associations of Texas. "Generally speaking, officers on the street are stretched so thin that the only thing that they're doing is answering calls. There is no time for proactive law enforcement anymore," Wilkison said.

To the chagrin of some officers, White refused to support a repeal of General Order 500-5 in 2009, saying such a move might have a chilling effect on the willingness of immigrants to report crimes. His decision leaves him open to criticism in the governor's race: “Houston is missing one important tool because Bill White refused to repeal a statute that, to this day, prevents officers from inquiring into citizenship status,” Frazier said.

But the Houston policy is an internal police order, not a city ordinance or law. Moreover, troopers at DPS follow a similar written order.

White's spokeswoman, Katy Bacon, notes that some immigration enforcement tools that White put into place in Houston have yet to be implemented by state government. “He put E-Verify into place," she said, referring to an internet system that allows employers to check immigration status. "Does the state use E-Verify?” 

It does not. In a Republican primary debate, Perry said, “E-Verify would not make a hill of beans' difference when it comes to what's happening in America today. You secure the border first, then you can talk about how to identify individuals in an immigration situation." 

Regardless of who becomes the next governor, some immigration reform activists would like to see the state take a tougher tack on this issue. Jack Martin, the director of Special Projects for the Federation of American Immigration Reform, a national anti-immigration advocacy group that supports the Arizona law, said of Perry’s remarks: “There’s some legitimacy to that point of view, but if taken too far, it’s simply a pretext for avoiding an issue that’s controversial. “