Full Fifth Circuit Nixes Block on Texas SB 4 — the ‘Border Crimes’ Law
Concurrence says measure is within Texas’s ‘war power’
By Andrew R. Arthur on May 1, 2026
The full U.S. Court of Appeals for the Fifth Circuit recently issued an opinion in U.S. v. Texas, reversing a three-judge circuit panel decision and a district court injunction blocking implementation of SB 4, a Texas state law that criminalizes illegal entries over the Rio Grande and into the United States. Not since the Alamo has the Lone Star State seen so many shots fired as in this protracted litigation — and circuit Judge Jim Ho reserved some fireworks for his concurrence.
SB 4
In late 2023, the Texas legislature passed, and Gov. Greg Abbott (R) signed, Senate Bill (SB) 4, which was set to go into effect in March 2024.
That law would make it a state crime for an alien to illegally enter Texas “directly from a foreign nation at any location other than a lawful port of entry”.
Given there’s only one “foreign nation” an illegal entrant could cross into Texas from without going through a port of entry, the focus of that provision is on migrants crossing the Rio Grande illegally from Mexico into the state.
That crime would be a class B misdemeanor under Texas law — carrying a penalty of up to 180 days in jail and a $2,000 fine — for a first offense, and a felony with a possible penalty of two years or more and a fine up to $10,000 for aliens who illegally reenter after a prior conviction.
The most important part of that bill, however, is a provision that would allow state magistrates to dismiss first-offense charges if the alien agrees to return voluntarily back across the border.
Texas lacks the authority to deport aliens itself, and as a practical matter it would hand those aliens over to CBP for immigration officers to do with them what it wanted — preferably removal or return.
The Biden Administration’s Response
https://cis.org/Arthur/Full-Fifth-Circuit-Nixes-Block-Texas-SB-4-Border-Crimes-Law
