Unlike Other States, Texas E-Verify Law Operating Under Honor System

After former Gov. Rick Perry issued an executive order in December 2014 mandating the use of E-Verify for state agencies, some lawmakers noted the directive lacked a mechanism to ensure compliance.

But more than nine months after Gov. Greg Abbott signed a separate E-Verify bill, some of those gaps still exist. 

Perry's order required state agencies under the purview of the governor's office, along with any contractors and subcontractors those agencies hired, to use E-Verify to ensure all potential new hires were legally eligible to work in the United States. 

The federal E-Verify system screens for undocumented workers by comparing the information that applicants submit to an employer with records maintained by the Department of Homeland Security and the Social Security Administration.

But Perry's directive didn’t assign a state agency to ensure compliance or prescribe penalties for agencies or contractors that don’t use the system. While the new law, Senate bill 374 by state Sen. Charles Schwertner, R-Georgetown, expands the requirement to all state agencies, it also doesn’t spell out any penalties for agencies that don’t comply. And it doesn’t assign anyone to make sure the law is being followed.

While SB 374 directed the Texas Workforce Commission to implement the bill's provisions, a spokesperson for the agency said that doesn't put the commission in charge of enforcement.

“There is no provision in this law for TWC to enforce, monitor or report or track other agencies’ compliance,” said spokesperson Lisa Givens. “We have provided ongoing technical assistance when requested.”

There's hasn’t been an indication that agencies weren't already cooperating with Perry's 2014 order, which was noted during debate on the bill last year. 

But while Texas, whose GOP lawmakers often focus their re-election campaigns on promises to crack down on illegal immigration, operates on the honor system, other states back up their laws with harsh penalties for non-compliance.

For example, Virginia prohibits an employer from contracting with the state for a year if they don’t comply with the state’s E-Verify law. Georgia performs annual audits to make sure contractors are complying. And in Mississippi, penalties for noncompliance include canceling public contracts and revoking a  business license for up to a year.

Schwertner didn’t seem concerned about the lack of oversight in his bill, but he did say lawmakers could modify the law if that’s needed next year.

“At this point, I have no reason to suspect our state agencies would have any difficulty following SB 374's clear directive to utilize the federal E-Verify system when hiring new state employees,” he said in an email. “As with all new policy changes, the legislature will continue to monitor the implementation of SB 374, and if additional changes are needed to insure compliance, I'm sure we'll address those concerns in the upcoming session."

Abbott, who supported SB 374 during the 84th Legislature, said he stands by the legislation.

“Gov. Abbott supports the law, and expects state agencies to comply with it,” spokesperson John Wittman said.

Schwertner’s bill did expand the scope of Perry’s requirement to include all state agencies and not just those under the direction of the governor. It didn’t include the provision covering contractors and subcontractors but that issue was addressed this month by an opinion issued by Texas Attorney General Ken Paxton. Paxton ruled contractors and subcontractors hired by executive agencies must also comply with E-Verify.

Even without an enforcement provision, analysts argue that the legislation mandating E-Verify use provides enough of a deterrent.

“Well on the one hand, it would be ideal to have some kind of enforcement mechanism,” said Jessica Vaughan, the director of policy studies at the Center for Immigration Studies, a Washington-based think tank that takes a hard-line approach to illegal immigration. “But by simply requiring the use of E-Verify itself, then you are going to get many agencies doing their due diligence that weren’t before.”