“[A] dangerous game of political Russian roulette.” That’s how Texas Gov. Greg Abbott described Travis County Sheriff Sally Hernandez’s immigration policy, which was released Friday. And, this morning, Abbott told Fox News that he's directing lawmakers to draft a bill that would penalize similar policies and threatened to remove Hernandez from office.
Hernandez’s policy pivots significantly from that of her predecessor. It states that the sheriff’s office will no longer recognize requests from U.S. Immigration and Customs Enforcement (ICE) to detain people booked into the county jail.
On Fox News today, Abbott proposed penalizing so-called "sanctuary cities" and removing elected officials with policies similar to Travis County's.
“We are working on laws that will, one, ban sanctuary cities, remove from office any officeholder who promotes sanctuary cities [and] impose criminal penalties, as well as financial penalties,” he said. “If she doesn’t, we will remove her from office.”
Hernandez's policy is not illegal. It’s clear from a plain-language reading of the law that complying with ICE’s detention requests is not mandatory, said Stephanie Taylor, an immigration lawyer with Hansen & Taylor, PLLC.
In other words, detainment requests from the federal government are often simply that: requests. Some local entities have even faced lawsuits for following them.
“The detainers do not require any evidence that someone’s actually deportable,” said Robert Painter, interim executive director for American Gateways, a legal aid nonprofit. “It’s basically ICE sending a memo over to the Travis County Sheriff’s Office and saying, ‘Hey, we want to check on this guy. Can you hang onto them for a while until we can come get them?’”
In 2014, an appeals court judge sided with a man who had been detained per ICE’s request in Lehigh County, Pennsylvania. After he posted bail, the man was held for three days – until the federal agency realized he was indeed a U.S. citizen.
“When you are complying with a request, you are instituting a second arrest or extending an arrest at the request of ICE without any probable cause,” Painter said.
In a letter to Hernandez on Monday, Abbott said he has serious public safety concerns about releasing a person charged with a crime who may also be an undocumented immigrant. Part of Hernandez’s policy, though, would be to recognize ICE detainer requests for people charged with murder, aggravated sexual assault and human trafficking. The policy also recognizes detainer requests accompanied by a warrant – per law.
But Abbott’s letter was more than just a slap on the wrist. It was to remind Travis County of a change he made in 2015 to grants awarded by the state’s Criminal Justice Division. At the time, Abbott said compliance with ICE detainer requests would be a condition of those grants.
Currently, Travis County receives $1.8 million in grants from the Criminal Justice Division. None of them fund anything to do with immigration; instead, they pay for things like the county’s Prostitution Prevention Program and Drug Diversion Court. Nearly 18 employees draw their salaries from these grants.
Taylor said it’s uncertain that cutting this funding would be legal. It was not the county that made the policy, she said; it was the sheriff.
“The sheriff is beholden to her constituents, those who elected her," Taylor said. "For the state to threaten to cut county funds based on a sheriff’s policies seems questionable, legally.”
Travis County Judge Sarah Eckhardt appealed to Abbott today to reconsider his threat to cut state funding to the county. In a letter, she told the governor she admired his history of putting public service above politics, but noted that many of the programs targeted are not connected to immigration or managed by the sheriff’s office.
Abbott’s fellow Republicans in the Senate came out in support of him.
In a letter, the Senate Republican Caucus characterized the Travis County policy as a “reckless and blatant political stunt” and suggested Senate Bill 4, filed by Sen. Charles Perry (R-Lubbock), would provide an enforcement mechanism for Abbott’s threat.
— Patrick Svitek (@PatrickSvitek) January 25, 2017
In a letter to Abbott, the Travis County delegation of the Texas House of Representatives called the proposed policy "draconian" and urged the governor to let Hernandez do her job.
While we support your commitment to protecting the people of our state, we strongly disagree with your strategy to achieve that end. Threatening Sheriff Hernandez with removal from office and withholding much-needed funding from the County is a vast overreach of executive authority.
Austin Congressman Lloyd Doggett also released a statement in Hernandez's defense, calling Abbott’s actions unconstitutional and unlawful.
Neither Governor Abbott nor the Legislature have any authority to remove a duly elected Sheriff, whose office is established by the Texas Constitution. The Governor shows contempt for both the Texas Constitution and the Bill of Rights in the United States Constitution. Ours is not a ‘sanctuary’ city or county, but a refuge from anti-immigrant hysteria, with a strong commitment to effective law enforcement.
This post has been updated throughout.