Criminal Defense, Hot Takes

Texas SB 4 Goes Live May 15: What Defense Lawyers and Their Clients Need to Know Right Now

On April 24, 2026, the en banc Fifth Circuit vacated the preliminary injunction that had kept Senate Bill 4 (the 2023 statute creating new state criminal offenses for unlawful entry into Texas) on ice for nearly three years. The 10–7 ruling did not decide whether SB 4 is constitutional. It held that the plaintiffs (Las Americas Immigrant Advocacy Center, American Gateways, and El Paso County) lacked Article III standing to bring the challenge.

After the 14-day rehearing window and the clerk’s seven-day window to issue the formal mandate, the law is scheduled to take effect on May 15, 2026, unless another court intervenes. On May 4, 2026, the ACLU of Texas, the Texas Civil Rights Project, and other civil rights groups filed a new lawsuit seeking to block four key provisions. As of publication, no order has issued.

This is the largest expansion of state criminal jurisdiction in Texas in a generation. For DFW defense counsel, what follows is the practical primer: the new offenses, the magistration process unique to SB 4, the federal-detainer interaction, and the preemption issues that need to be preserved at every stage.

The Three New State Crimes

SB 4 added Chapter 51 to the Texas Penal Code, titled Illegal Entry Into This State, and a new Chapter 5B in the Code of Criminal Procedure. Three new offenses now appear on the books:

Texas Penal Code §51.02 — Illegal Entry From Foreign Nation

A person who is an alien commits this offense by entering or attempting to enter Texas directly from a foreign nation at any location other than a lawful port of entry. The base offense is a Class B misdemeanor (up to 180 days county jail; fine up to $2,000). A second conviction is enhanced to a state jail felony.

Affirmative defenses under §51.02(c): (1) the federal government has granted lawful presence or asylum under 8 U.S.C. §1158; (2) the conduct does not constitute a violation of 8 U.S.C. §1325(a); or (3) the defendant was approved for DACA benefits between June 15, 2012, and July 16, 2021. DAPA and post-2021 successor programs are expressly excluded.

Texas Penal Code §51.03 — Illegal Reentry by Certain Aliens

Applies to a person previously denied admission, excluded, deported, or removed who enters, attempts to enter, or is found in Texas. The base offense is a Class A misdemeanor, with sharp enhancements:

  • Class A misdemeanor — up to 1 year in jail and a fine up to $4,000.
  • Third-degree felony (2–10 years) — if the prior removal followed two or more misdemeanors involving drugs or crimes against a person, or if the defendant was excluded on national-security grounds.
  • Second-degree felony (2–20 years) — if the prior removal followed a felony conviction.

Texas Penal Code §51.04 — Refusal to Comply With Order to Return to Foreign Nation

A second-degree felony (2–20 years) for refusing to comply with a magistrate’s or judge’s removal order under CCP Article 5B.002. Critically, this offense applies to the order itself and not to the underlying immigration status. A defendant who later turns out to have been a U.S. citizen, or who could not physically comply, is still on the hook under the plain text of the statute.

No probation, no parole, no mandatory supervision. The 2025 amendments to Chapter 42A eliminated community supervision for Chapter 51 offenses. SB 4 also expressly bars parole and mandatory supervision. A conviction under §51.03 or §51.04 means flat time.

The Magistration Trap: Article 5B.002

This is the provision that changes the day-to-day mechanics of every Class B misdemeanor docket along the border and, increasingly, in interior counties as well.

Under CCP Art. 5B.002, at the defendant’s Article 14.06 or 15.17 appearance, the magistrate may make a probable-cause determination on a §51.02 or §51.03 charge and issue a written order requiring the person to return to the foreign nation from which the person entered. If the person agrees, the case is dismissed. If the person later refuses to comply, the conduct is prosecutable as a second-degree felony under §51.04. On conviction, the order is mandatory and the trial judge shall issue it as part of the judgment.

Defense counsel needs to be present at magistration. Period.

  • The ‘agreement’ is the legal pivot. The order may issue only if the person agrees. There is no statutory mechanism for verifying that agreement is knowing or voluntary, and no right to appeal the determination. A defendant who ‘agrees’ at magistration without counsel is, in practical effect, accepting a state-court removal order and exposing themselves to a 2–20 year felony if they ever return.
  • Counsel can demand fingerprinting and biometric cross-referencing on the record. 5B.002(c)(4) requires the arresting agency to collect fingerprints and biometric data and cross-reference them against local, state, and federal criminal databases and federal national-security lists before the order issues. A failure to comply with that condition voids the order and should be objected to contemporaneously.
  • Citizenship and lawful presence are issues from the first appearance. DACA recipients (within the 2012–2021 window), people granted asylum, lawful permanent residents, and U.S. citizens have affirmative defenses or are not ‘aliens’ at all under §51.01. Magistrates do not have direct access to federal immigration databases. Counsel should be prepared with documentation at magistration when at all possible.
  • The federal-status bar. Under CCP Art. 5B.003, a Texas court may not abate prosecution because a federal immigration determination is pending. A pending asylum claim, a pending U-visa petition, or a pending federal removal proceeding does not stop the state case from moving.

Where SB 4 Cannot Be Enforced

CCP Art. 5B.001 prohibits arrest or detention to enforce Chapter 51 on the premises or grounds of:

  • Public or private primary or secondary schools, while present for educational purposes;
  • Churches, synagogues, or other established places of religious worship;
  • Health care facilities, including a provider’s office, while present for medical treatment; and
  • SAFE-ready facilities and other facilities providing forensic medical examinations to sexual assault survivors.

An arrest made on those premises in violation of §5B.001 is a statutory illegality and a basis for a CCP Art. 38.23 suppression motion as to anything obtained after the unlawful seizure. This is a defense argument that should be raised in every case where the arrest occurred at or near a covered location.

Bail and Pretrial Issues

SB 4 did not amend the Texas bail statutes. Bail for a Class B misdemeanor §51.02 charge is set under CCP Chapter 17 like any other Class B. But several practical pressure points deserve attention:

  • Federal detainers are the practical bail killer. If ICE has lodged an I-247 detainer against a defendant, posting state bond does not result in release. Rather, it results in transfer to ICE custody. Counsel needs to know the detainer status before negotiating bond, because a $500 misdemeanor bond can be the most expensive money a family ever wastes if the client is going to be transferred to a federal facility three counties away.
  • Local cooperation policies have shifted in DFW. In April 2026, Dallas, Austin, and Houston all revised general orders to expand cooperation with ICE after the Governor’s office threatened to withhold state grants. Dallas removed the prior limitation against prolonging detention to hold someone for ICE. Tarrant, Denton, Collin, Ellis, and Rockwall counties have reportedly entered 287(g) agreements, which means jail intake is doing immigration screening on every booking.
  • Conditions of release should be scrutinized. Travel restrictions, GPS monitoring, and reporting conditions imposed on a §51.02 misdemeanant can collide with federal immigration appearances. Counsel should request bond conditions that allow the client to appear in federal immigration court without violating state pretrial conditions.
  • Padilla obligations are heightened. Under Padilla v. Kentucky, defense counsel has a Sixth Amendment duty to advise non-citizen clients of immigration consequences. With a state crime that is itself an immigration consequence, the analysis runs in both directions: any plea on a non-Chapter 51 case (DWI, drug possession, theft) now also has to be evaluated for whether the conviction triggers a §51.03 enhancement on a future reentry charge.

The Preemption Fight Is Not Over — Preserve It

The April 24 ruling is only about Article III standing. The en banc majority expressly declined to reach the merits. As Judge Jerry Smith wrote: “Because the plaintiffs that are challenging the new statute lack standing, we vacate the preliminary injunction without addressing the merits of the preemption claim.”

That means the central constitutional questions remain wide open:

  • Field preemption under Arizona v. United States. The Supreme Court held in 2012 that a similar Arizona provision (§3 of S.B. 1070), which made it a state misdemeanor for an alien to fail to register or carry registration documents, was field-preempted because Congress occupied the field of alien registration. Chapter 51’s entry and reentry offenses sit in the same federal field (8 U.S.C. §§1325 and 1326).
  • Conflict preemption with federal asylum and removal procedure. Under federal law, asylum-seekers who present themselves at the border have a statutory right to a credible-fear interview. A state criminal prosecution that proceeds in parallel with (and that under CCP Art. 5B.003 cannot be abated by) a pending federal asylum proceeding presents a direct conflict-preemption challenge.
  • State authority to issue removal orders. Removal is a federal power. Texas does not have authority to deport. They can only physically transport someone to a port of entry. The §51.04 enforcement mechanism, which makes refusal to leave the country a 20-year felony, is a state-imposed sanction tied to a state-issued order to depart. That structural problem has not been resolved.
  • Equal protection and racial profiling. Enforcement that turns on a peace officer’s suspicion that someone is an alien who recently entered Texas is, in practical reality, a determination based on appearance and language. As-applied challenges should be preserved through targeted discovery on enforcement patterns, dispatch records, and stop justifications.

How to preserve the issue at the trial level. File a written pretrial motion to dismiss or quash on Supremacy Clause grounds. Cite Arizona v. United States and the en banc Fifth Circuit’s express disclaimer that it did not reach the merits. Make a clean record on facts that bear on preemption (the federal proceeding status, federal database entries, prior removal documents). When the as-applied challenge is denied, the issue is preserved through the judgment for the Court of Appeals and, ultimately, for the Texas Court of Criminal Appeals or the Supreme Court.

What Changes for Everyday DFW Practice

SB 4 affects more than border-county dockets. A few practical points for the DFW market:

  • Traffic stops are the new front line. Most §51.02 and §51.03 charges are not going to come from a riverbank arrest. They are going to come from a traffic stop where the officer develops a reasonable suspicion (or asserts they did) that the driver or a passenger entered Texas unlawfully. Standard Fourth Amendment stop and prolongation challenges (Rodriguez v. United States, State v. Cortez) apply with full force.
  • Federal venue for the most serious cases. Dallas County and Tarrant County sit in the Northern District of Texas; Collin and Denton are in the Eastern District. A defendant charged under state §51.03 with a prior felony removal could simultaneously face a federal 8 U.S.C. §1326 indictment with materially different sentencing exposure. Coordination between state defense counsel and federal counsel (or one attorney admitted to both) matters from the first call.
  • Discovery requests should expand. In addition to the standard CCP Art. 39.14 demand, counsel should request: (1) the biometric and database cross-reference records required by §5B.002(c)(4); (2) the dispatch and vehicle stop records; (3) any 287(g) screening records from the booking jail; (4) the federal A-file or removal records, where applicable; and (5) any state-court 5B.002 order from a prior arrest, since that is the predicate for a §51.04 charge.
  • Family and collateral interview. Length of residence in Texas, place of birth, marriage to a U.S. citizen, parents’ status, prior immigration filings, and DACA status all matter under §51.02(c) and §51.01. These questions need to be asked at intake, before a plea offer is even on the table.

Bottom Line

SB 4 is going live on May 15, 2026, unless another court intervenes. The Fifth Circuit did not bless the law on the merits. It held the current plaintiffs could not sue. The constitutional issues that have driven this litigation since 2023 are still open, and a new lawsuit is already on file. Until those issues are resolved, every Chapter 51 case is also a preemption case, and every magistration on a Chapter 51 charge is a moment where a defendant can give up rights they may not understand.

For DFW criminal defense practitioners, the work starts at the first phone call: get to magistration, document immigration status, preserve preemption, and treat federal and state exposure as a single problem with two procedural tracks.

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If you or a family member has been arrested or charged under Chapter 51, or has a pending case where SB 4 enforcement is now an issue, call (214) 225-7117 for a free, confidential consultation. The first 24 hours after arrest, and the magistration hearing, are where this fight is won or lost. Or schedule online at texasdwisite.com