Attorney for El Paso County says it already may be in compliance with 'sanctuary cities' law

AUSTIN — Now that Texas is allowed to enforce most of its ban on so-called sanctuary cities, officials in El Paso County are grappling with how to implement the law while at the same time abiding by a federal court settlement preventing law enforcement officers from asking about people's immigration status. 

A three-judge panel of the U.S. Fifth Circuit Court of Appeals earlier this month said the state can enforce most of the controversial law, which targets local governments that dissuade law enforcement officers from enforcing federal immigration laws. 

The court's ruling means the law will go into effect while a larger case about its constitutionality is decided. 

More:Federal appeals court upholds Texas' 'sanctuary cities' ban

In El Paso, a 2006 settlement complicates things.

When the law was initially adopted, officials said, the county could not enforce both the law and the policies enacted after the settlement agreement. But on Monday, an attorney for the county said new interpretations of the law could mean that the county already is in compliance with the new law, the settlement notwithstanding.

“That is based on my current reading of the (Fifth Circuit) opinion and my cursory review of the county’s policies,” said Jose Garza, a private attorney representing the county in litigation against the ban. “It’s difficult to say completely that there is no conflict between our policies in the county and Senate Bill 4. My estimation, at least at this point, is that it is unlikely."

The sanctuary cities law, known as Senate Bill 4, was signed into law last year after a tense legislative session marked by sparring over the legislation. Its passage was a key victory for conservative lawmakers and Gov. Greg Abbott, who directed lawmakers to tackle the issue. 

The law prevents local governments from prohibiting law enforcement officers from following federal immigration law and allows officers to ask about a person's immigration status if they are detained or arrested. 

Law enforcement also is required to cooperate with federal immigration authorities and comply with detainers from U.S. Immigration and Customs Enforcement — requests for local authorities to keep people in custody long enough for them to be turned over to U.S. Immigration and Customs Enforcement if they are suspected of being in the country illegally.

More:Cities and counties prepare for ban on sanctuary cities that takes effect Sept. 1

After Abbott signed the law, it was challenged in court by El Cenizo, a small city on the U.S.-Mexico border, and the surrounding Maverick County. San Antonio, Houston, El Paso County and other entities soon joined the lawsuit, which is in U.S. District Court in San Antonio.

In the original legal complaint filed by Garza on behalf of the county, the Texas Organizing Project Education Fund and MOVE San Antonio, the settlement agreement is identified as a serious concern.

"Uniquely, El Paso is under a federal court settlement agreement agreeing to prohibit the discriminatory enforcement of civil immigration laws," the complaint reads. "El Paso has also adopted policies that may violate SB 4's unconstitutional mandates."

Federal settlement

The El Paso County Sheriff's Office was required to adopt a written policy preventing officers from enforcing immigration law after the county agreed to a settlement with El Paso resident Carl Starr. 

Starr sued the county in 2006, after officers pulled over the bus he was riding on and asked passengers for their identification, "without cause or reasonable suspicion," according to the lawsuit. 

Starr said officers asked him for his identification but didn’t want to see it when he started reaching for his wallet. 

The lawsuit claims they moved to a different area of the bus and asked the remaining passengers, who were Hispanic, for identification. 

The passengers did not have identification, so the deputies ordered them off the bus and then allowed the bus to leave. 

Almost two months after Starr filed the lawsuit, the county agreed to a settlement, which included a $500 payment to Starr and a $3,500 payment to the Texas Civil Rights Project — in addition to the required policy against enforcing immigration laws. 

The department also had to provide training to its officers about civil immigration law. 

More:2006 settlement might help county in SB 4 fight

After the settlement, new language was inserted into the El Paso County Sheriff’s Office Policies and Procedures Manual outlining how officers should behave when they stop vehicles on the road.

The language was added to the section of the manual that handles “stationary vehicle checks” — when officers stop cars on the road to check compliance with traffic laws.

"Stationary vehicle checks to determine the citizenship, residency, or immigration status of any person are prohibited," the policy reads.

The policy also states that officers are allowed to contact federal immigration authorities if these three things are true about a case: a person was detained or arrested with probable cause, that person committed the crime and officers believe that person is in the country illegally. 

The El Paso County Sheriff's Office declined to comment for this report.

Opposing the law

Early interpretations of Senate Bill 4 presented the law as a mechanism for individual law enforcement officers to enforce immigration laws, Garza said. 

But he said recent explanations of the law from the U.S. Fifth Circuit decision and the state have shown a shift in their view of the policy.

"A police officer or sheriff's deputy or a constable can't go rogue unilaterally enforcing immigration laws, and they've made that clear," Garza said.

He also said the law might allow for "discretionary policies the county has in place" based on available resources and similar factors — which could include the settlement agreement.

More:1,000 march in support of young immigrants, against sanctuary cities law

Bob Libel, executive director of Grassroots Leadership, a nonprofit watchdog organization, said there is room under the law for local officials to craft policies to protect their residents.

"Now is not the time for local officials to sit back,” he said during a call with reporters after the federal court ruling earlier this month. “Now is the time for bold action to protect immigrant community members from unnecessary and discretionary arrests that are all too often the first step on the deportation pipeline."

Garza said the legal teams for all the entities suing the state are determining their next steps in the lawsuit. 

Plaintiffs in the case, which include major cities like San Antonio, Houston and Austin, can ask the court to reconsider its decision or appeal it to the U.S. Supreme Court. 

"We’re still evaluating the full implication of the Fifth Circuit’s decision," Garza said. "It is a disappointing decision; I don’t want to mince words about it."

In the meantime, County Judge Ruben Vogt said El Paso will do "what is necessary to follow the law."

"We are evaluating all of the law enforcement policies that are in place and reconciling that just to ensure we are in compliance and following the law," he said. "We're evaluating all options we have moving forward." 

County commissioners met with Garza and the county attorney in executive session Monday to discuss their options. Vogt said he expects to revisit the issue in the coming weeks.

Madlin Mekelburg is a reporter with the USA Today Network Austin Bureau; she may be reached at 512-479-6606; mmekelburg@elpasotimes.com; @madlinbmek on Twitter.