SB 552 proposes a categorical policy change that would make individuals classified as “illegal aliens” ineligible for all forms of community supervision under Texas law, including judge-ordered, jury-recommended, and deferred adjudication. The bill introduces a new statutory definition of "illegal alien" and applies that status as an automatic disqualifier from alternative sentencing programs. While framed as a measure to enhance public safety and assert state-level consequences for those in the country unlawfully, the bill raises substantial constitutional, legal, fiscal, and procedural concerns. For these reasons, Texas Policy Research recommends that lawmakers vote NO on SB 552.
Crucially, this position should not be misconstrued as advocating leniency for undocumented individuals who commit crimes. The current Texas legal system already permits courts to deny community supervision based on a range of factors, including offense severity, prior criminal history, flight risk, and overall threat to public safety. Nothing in current law requires judges or juries to offer deferred adjudication or probation to any defendant, regardless of their immigration status. The issue with SB 552 is not about whether undocumented individuals should be held accountable—it’s about whether judges and juries should retain discretion to make case-specific sentencing decisions or whether the law should impose a one-size-fits-all incarceration mandate based on civil immigration status.
SB 552 removes that discretion entirely. It substitutes legislative judgment for judicial decision-making, requiring incarceration for undocumented defendants even in low-level or non-violent cases, regardless of mitigating circumstances or rehabilitative potential. This approach conflicts with longstanding principles of proportional justice, individualized sentencing, and limited government. Rather than reinforcing accountability, it risks imposing excessive or inappropriate punishment driven more by immigration status than criminal conduct.
The bill also raises serious constitutional concerns. Under the 14th Amendment to the U.S. Constitution, all "persons" within the jurisdiction of a state are entitled to due process and equal protection of the laws—regardless of immigration status. This principle was affirmed in Plyler v. Doe (1982), where the U.S. Supreme Court explicitly recognized that undocumented immigrants are protected by the 14th Amendment. In Zadvydas v. Davis (2001), the Court further held that non-citizens within U.S. borders have substantive due process rights. By categorically denying access to community supervision for undocumented individuals, SB 552 risks violating these protections by imposing criminal consequences without an individualized process.
Texas’s own Constitution mirrors these guarantees. Article I, Section 19 guarantees that “no citizen of this State shall be deprived of life, liberty, property… except by the due course of the law of the land.” Although this section references “citizen,” Texas courts have interpreted it to provide the same fundamental protections as federal due process, including for non-citizens in criminal cases. Additionally, Article I, Sections 3 and 3a guarantee equality under the law and prohibit discrimination based on national origin—an issue relevant to this bill, given its disproportionate effect on certain immigrant populations. While SB 552 is framed as a status-based policy, its real-world impact may be subject to legal scrutiny under these provisions.
There is also a separation of powers concern. Under Article II, Section 1 of the Texas Constitution, the powers of government are divided among the legislative, executive, and judicial branches. Sentencing decisions, including whether to grant community supervision, are traditionally the province of the judiciary. SB 552’s blanket ban intrudes on that role by eliminating the ability of judges and juries to tailor sentences based on individual facts. While the legislature can define sentencing frameworks, it must not entirely foreclose judicial discretion in a way that undermines core adjudicative functions.
From a fiscal perspective, SB 552 also presents risks. According to the Legislative Budget Board, the bill could lead to a significant increase in state and local incarceration costs due to a higher number of individuals being confined rather than supervised in the community. The fiscal note emphasizes that the number of individuals affected is unknown, but the cost implications may be considerable. Community supervision is generally more cost-effective than incarceration and has been shown in many cases to reduce recidivism when properly administered.
Finally, SB 552 potentially invites federalism concerns by using the state criminal justice system as a tool for enforcing federal immigration priorities. While Texas has the authority to define its own sentencing policies, immigration status is ultimately a matter of federal law. By tying criminal sentencing decisions to civil immigration classifications, the bill risks entangling state and federal jurisdictions in ways that may not be legally sustainable or administratively practical.
In summary, SB 552 is not required to hold offenders accountable—current law already allows courts to impose incarceration in appropriate cases. Rather, the bill eliminates the flexibility to consider alternatives when warranted by the facts of the case. This inflexible approach undermines constitutional protections for all persons, limits judicial discretion, increases costs to taxpayers, and risks litigation under both state and federal law. Support for robust immigration enforcement can—and should—coexist with a commitment to proportional, constitutional justice.
- Individual Liberty: At its core, individual liberty is about protecting the natural rights of all people from arbitrary or excessive government intrusion. The bill directly undermines this principle by categorically denying undocumented individuals the opportunity to be considered for non-carceral alternatives like community supervision or deferred adjudication, not based on the nature of their offense but solely on their immigration status. Texas’s criminal justice system is designed to deliver punishment proportionate to the crime and to allow judges and juries to weigh mitigating circumstances. This bill removes that mechanism for a specific group of defendants, thus stripping them of individualized justice. The result is an erosion of due process protections, contrary to the spirit of both the U.S. Constitution’s 14th Amendment and Article I, Section 19 of the Texas Constitution, which are designed to ensure liberty for all persons under Texas’s jurisdiction. Liberty does not mean impunity—it means being judged fairly and individually, not collectively or categorically.
- Personal Responsibility: On the surface, supporters of the bill might argue that it reinforces personal responsibility by ensuring that individuals who violate the law face mandatory incarceration if they are also in the country unlawfully. However, Texas law already allows for full accountability through existing judicial processes, where courts may deny supervision based on the facts of the offense or the defendant’s character. The bill does not enhance personal responsibility in a meaningful or constructive way—it shifts accountability away from a personalized evaluation of conduct toward a status-based exclusion. In doing so, it weakens the link between a person’s actions and the consequences they face, which is a departure from true personal responsibility grounded in moral and legal choice.
- Free Enterprise: While the bill does not directly regulate businesses or the marketplace, it can indirectly harm free enterprise by increasing the cost and size of the criminal justice system. More incarceration leads to higher taxpayer burdens, pulling resources away from other priorities like workforce development, education, and infrastructure—all essential components of a strong, free economy. Additionally, increasing incarceration rates for low-level offenders can have ripple effects on labor markets, especially in communities where undocumented individuals play a significant economic role. Removing alternatives to incarceration can also disrupt families and local economies, which undermines the stable social environment necessary for enterprise to thrive.
- Private Property Rights: This bill does not implicate private property rights directly. There are no provisions in the bill that relate to property seizure, land use, zoning, or eminent domain. However, the broader expansion of the criminal justice system may intersect with property issues when it comes to housing detained populations, increased local taxation, or impacts on families who lose a working family member to incarceration. These are indirect pressures, but the bill itself does not infringe on private property in a direct way.
- Limited Government: Limited government means that the government should do only what is necessary to protect rights and maintain order without unnecessary overreach. The bill expands the role of government by imposing a rigid sentencing mandate and transferring discretion from the judiciary (where it belongs in sentencing matters) to the legislature. It prevents courts from exercising judgment, even in cases where community supervision may be safer, more efficient, and more just. Furthermore, the bill blurs the line between state criminal justice functions and federal immigration enforcement, effectively using the state’s criminal laws to advance federal civil policy objectives. That entanglement contradicts principles of federalism and undermines Texas’s tradition of restrained, constitutionally bounded government.
