Opinion
08-23-00034-CR
08-23-2024
THE STATE OF TEXAS, Appellant, v. ISAIAS BURCIAGA Appellee.
Do Not Publish
Appeal from the 327th Judicial District Court of El Paso County, Texas (TC# 20220D03763)
Before Alley, C.J, Palafox, and Soto, JJ Alley, CJ, concurring Soto, J., dissenting
OPINION
GINA M. PALAFOX, Justice
Appellee Isaias Burciaga was indicted on three counts of smuggling of persons with intent to obtain a pecuniary benefit. Challenging a portion of the statute, Burciaga moved to quash the indictment on multiple constitutional grounds based on facial and as-applied challenges. After a brief hearing, the presiding judge of the 41st Judicial District Court granted Burciaga's motion by written order. The State appealed from the trial court's ruling as authorized by Article 44.01(a)(1) of the Code of Criminal Procedure. Because we conclude the challenged portion of the statute is not facially unconstitutional, and because we also conclude the as-applied challenges were prematurely brought, we reverse the trial court's order quashing the indictment and remand the cause for further proceedings.
See Tex. Code Crim. Proc. art. 44.01(a)(1) (authorizing the State's appeal of an order dismissing an indictment).
I. Factual and Procedural Background
Following a traffic stop, Burciaga was charged by indictment with three counts of smuggling of persons. See Tex. Penal Code Ann. § 20.05(a)(1)(A). Specifically, the charging instrument alleged Burciaga had knowingly used a motor vehicle to transport three individuals with intent to conceal them from a peace officer and to obtain a pecuniary benefit. The allegation that Burciaga committed the offense with the intent to obtain a pecuniary benefit enhanced the charge to a second degree felony with a minimum term of imprisonment of ten years. See id. § 20.05(b)(1)(C). The case was initially assigned to the 41st District Court of El Paso County.
Burciaga moved to quash the indictment on multiple constitutional grounds challenging a portion of the smuggling of persons statute on which charges were brought. He argued § 20.05(a)(1)(A) was preempted by several clauses of the U.S. Constitution, including its Supremacy Clause, Equal Protection Clause, and Due Process Clause, and further claimed the challenged provision was overbroad and vague in violation of the Fourth Amendment.
On December 9, 2022, the Honorable Annabell Perez, judge of the 41st Judicial District Court, presided over a hearing on Burciaga' motion to quash indictment. Predominately, Burciaga presented argument focusing on the constitutional grounds he raised by his motion: (1) that the State's prosecution was preempted by federal law; (2) that the State was selectively enforcing the law based on the defendant's race, ethnicity, or national origin, in violation of the Equal Protection Clause; and (3) that the challenged provision was overbroad and vague in violation of the Fourth Amendment. The State responded in opposition. When the court asked for a proffer about probable cause, defense counsel responded, "[i]t was a speeding." The State added that probable cause was further developed after Border Patrol officers confirmed that the individuals who were being transported in Burciaga's vehicle were noncitizens. Before the court concluded the hearing and took the matter under advisement, the trial court indicated it considered the preemption argument as the strongest of Burciaga's challenges.
On January 5, 2023, Judge Perez signed a written order granting Burciaga's motion to quash indictment without specifying the basis for the ruling. Although the style heading of the order identified the case as then pending in the 327th District Court of El Paso County, the order's substance more particularly stated "[t]he hearing on the motion was held before the 41st Judicial District Court on the record when this case was pending in that court." The signature line thus provided for signature by Judge Annabell Perez. From that order, the State timely perfected its appeal. The State's notice identified the order by its January 5 date, but it identified the 327th Judicial District Court as the trial court from which the appeal was taken, not the 41st Judicial District Court.
After the State filed its opening brief, Burciaga filed in this Court a motion requesting an abatement and remand of the appeal for an evidentiary hearing. Like the State's appellate notice, the style of Burciaga's motion also identified the 327th Judicial District Court as the trial court from which the appeal originated. Addressing a point made by the State's brief, Burciaga's motion described that "the State raised the lack of evidence on record and claimed this lack of evidence allowed only a facial challenge to the constitutionality of the State statute." Although Burciaga pointed out that evidence had been received by proffer, he otherwise claimed an evidentiary hearing would assist the parties with briefing. And he further argued an evidentiary hearing would promote judicial economy by assisting this Court with the appeal. The State responded in opposition to Burciaga's motion. It argued that, because Burciaga had prevailed in the trial court, he was not entitled to a "do-over" to expand the evidence needed for his "as applied" challenges.
Given that constitutional challenges were raised, this Court abated the appeal and ordered the trial court to conduct a hearing within 30 days to allow for the presentation of evidence in support of Burciaga's motion to quash indictment and for development of the record. The abatement order further instructed as follows: "the trial court shall prepare findings of fact and conclusions of law regarding its ruling on Burciaga's motion to quash." (emphasis added) Consistent with the State's notice of appeal and Burciaga's request for an evidentiary hearing, the order was directed to the 327th Judicial District Court.
At the start of the ordered hearing, the State objected on roughly the same procedural grounds as it had raised in its opposition to the hearing, which the trial court overruled. The parties agreed to the admission of multiple documentary exhibits. The State admitted a copy of Burciaga's indictment and a multi-page exhibit reflecting bar charts and pie charts of active and disposed cases in El Paso County involving smuggling charges during calendar year 2023. Burciaga admitted governmental records and press releases pertaining to prosecutorial efforts aimed at combatting human smuggling and trafficking networks. As for live witnesses, the State presented testimony from three law enforcement officers involved in Burciaga's traffic stop and arrest, and as well from an assistant district attorney who supervised the border prosecution unit of the District Attorney's office. Narrowing the scope of witness testimony, Burciaga expressly abandoned his Equal Protection argument during the hearing. After taking the matter under advisement, the Honorable Monique Velarde, judge of the 327th Judicial District Court, issued Findings of Fact and Conclusions of Law, as directed by the abatement order, but she rendered no ruling on Burciaga's motion to quash indictment.
Among Judge Velarde's conclusions of law, she determined the challenged statute did not regulate or infringe upon federal immigration law, and because she also found it was not being enforced in a manner to do so, it was not preempted by federal law. She found it did not violate the Equal Protection clause of the United States Constitution. And she concluded that the overbreadth challenge lacked merit. Otherwise, she concluded it was unconstitutionally vague because it failed to establish determinate guidelines for law enforcement. Also, she concluded it was facially invalid because it violated the Fourth Amendment by authorizing arrest and prosecution for constitutionally protected behavior. Because the evidentiary hearing was held by a different judge from the judge who rendered the ruling being challenged on appeal, and because the questions before us are questions of law, we decline to consider the substantive evidence of the transcript or the findings of fact and conclusions of law.
After the appeal was reinstated, the parties filed supplemental briefing.
II. Issues on Appeal
The State presents five issues on appeal. The State asserts that, because the trial court's ruling could be sustained on any of Burciaga's independent grounds, and for it to avoid procedural default on appeal, it intentionally attacked each of the constitutional claims raised by Burciaga's motion to quash indictment. See State v. Copeland, 501 S.W.3d 610, 612-13 (Tex. Crim. App. 2016) (holding failure to argue a "theory of law" applicable to the case on appeal results in procedural default). As earlier stated, Burciaga's motion challenged a portion of the human smuggling statute on the following grounds: (1) that it is unconstitutional because it is preempted by federal law, (2) that it is unconstitutional because it violated the Equal Protection Clause and his Due Process rights, (3) that it is unconstitutionally overbroad, (4) that it is unconstitutionally vague, and (5) that it violates the Fourth Amendment. In the issues advanced on appeal, the State argued the trial court erred in granting Burciaga's motion to quash the indictment on each of the initial grounds asserted. In his appellee's brief, Burciaga stood firmly on three of his original theories of law, but he expressly abandoned the following two: (1) that the statute was unconstitutionally overbroad, and (2) that it violated the Equal Protection clause.
In its amended briefing the State asserted the original order by Judge Perez remained intact as the challenged ruling of this appeal. We agree.
On review, we only address the contested theories of the case-that is, preemption, vagueness, and violation of the Fourth Amendment-to determine whether the trial court's ruling can be upheld on any of these theories. See Copeland, 501 S.W.3d at 612-13 (stating appellate courts can uphold the trial court's ruling if it is correct under any "theory of law" applicable to the case, even if the trial court did not rely on that theory in making its ruling). Because Burciaga concedes that two of his theories are not applicable to the case, we only address State's issues one, four and five. We conclude there is no need to reach issues two and three as they are not applicable to the case and are unnecessary to the final disposition of the appeal. See Copeland, 501 S.W.3d at 612-13; Tex.R.App.P. 47.1.
III. Overall Standard of Review
A trial court may not quash an indictment without the State's consent unless authorized by constitution, statute, or common law. State v. Terrazas, 962 S.W.2d 38, 40-41 (Tex. Crim. App. 1998) (en banc); State v. Hill, 558 S.W.3d 280, 284 (Tex. App.-Dallas 2018, no pet.) (citing State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003) ("It is well established that there is no general authority that permits a trial court to dismiss a case without the prosecutor's consent."). "A trial court may dismiss a charging instrument to remedy a constitutional violation, but such dismissal is a drastic measure only to be used in the most extraordinary circumstances." Hill, 558 S.W.3d at 284.
"We review a trial court's ruling on a motion to dismiss a charging instrument for an abuse of discretion." Id. In doing so, we apply a bifurcated standard of review. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)). We apply a "de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations." Id. Otherwise, we must give almost total deference to a trial court's findings of facts that are supported by the record, as well as mixed questions of law and fact that rely upon the credibility of a witness. Id.
IV. As Applied Challenges
Burciaga asserts on appeal that his "claims of unconstitutionality may be assessed as both facial and as applied challenges." As a preliminary statement, however, the State urges that because Burciaga's case has not yet gone to trial, and because he raised his constitutional challenges only by way of a motion to quash, his as-applied challenges are not yet ripe for review and should not be considered at this time. Based on the briefing and record presented, we agree with the State.
Because an as applied challenge most often requires a recourse to evidence, it has remained a long-standing principle that such challenges cannot be properly raised by a pretrial motion. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.4 (Tex. Crim. App. 2006)). Rather, as the Court of Criminal Appeals directed, an as-applied challenge should be "brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner." Id. Indeed, the Court of Criminal Appeals reiterated two years thereafter that as-applied claims "must be reserved for another day," given that "the record is undeveloped and thus we do not yet know what evidence the State will present at trial to support its allegations." State v. Rosseau, 396 S.W.3d 550, 558 n.9 (Tex. Crim. App. 2013).
Burciaga acknowledges this established principle but, in citing to Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016), he argues an exception applies to his case. In Perry, former Texas Governor Rick Perry argued that the abuse-of-official-capacity statute, under which charges were brought against him, was unconstitutional as applied to him because it violated the Texas Constitution's Separation of Powers provision. Id. at 890. In his case, the intermediate court of appeals had held that the Governor's separation of powers claim was not cognizable on pretrial habeas. Id. at 895. In reversing the appellate court's decision, the Court of Criminal Appeals held that pretrial habeas was an available vehicle for a government official to advance an as-applied separation of powers claim alleging the infringement of his own power as a government official. Id. at 898.
Although Perry permitted an as-applied claim in a pretrial habeas setting, the Court of Criminal Appeals particularly noted it had only allowed certain types of claims to be raised when "the rights underlying those claims would be effectively undermined if not vindicated before trial." Id. at 895 (citing Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). The Court explained that recognized exceptions involved double jeopardy claims or complaints regarding bail. Id. For an exception to apply in a habeas posture, it further instructed that the key question is whether "the resolution of the claim in the applicant's favor would result in his 'immediate release'; and whether the rights at issue 'would be effectively undermined' if the claim were not cognizable." Id. at 921.
Despite Burciaga's assertion otherwise, we conclude that Perry is unavailing. Putting aside the procedural distinction between a motion to quash and a habeas application, Perry reaffirms that as-applied challenges are not cognizable at pretrial except in carefully limited exceptions. Id. at 895-98. Specifically, Perry concluded that criminal charges arising from an elected official's performance of his duties and implication of the separation of powers qualified for such exception. Id. at 989. But public officeholder concerns are not at issue here. Burciaga's charges neither arise out of his duties as an elected official, nor do they implicate any separation of powers claim. The charges instead stem from his conduct as a private citizen. Accordingly, Burciaga has not shown his as-applied challenges brought before trial are based on a recognized exception.
In support of his as-applied claims, Burciaga also argues the record of his case "was fully developed in the trial court," citing London v. State, 490 S.W.3d 503 (Tex. Crim. App. 2016). However, London is similarly distinguishable and other reasons undercut his argument. In London, the Court of Criminal Appeals considered whether the appellate court erred in not addressing a defendant's as-applied challenge on direct appeal when that challenge was not raised during trial. Id. at 506. Factually, London did not involve a pretrial setting, nor did it more specifically consider whether a pretrial hearing equated with a developed record at trial. See London, 490 S.W.3d at 508 (explaining the principle that an as-applied challenge should not generally be raised prior to trial "has more to do with an appellate court's ability to resolve a claim rather than whether that claim was properly brought to the trial court's attention").
Here, in contrast with London, the State neither announced ready for trial nor did it otherwise present its case against Burciaga. Thus, for this Court to hold the statute is unconstitutional as-applied would require that we speculate about the evidence the State would present at trial in support of the allegations. See State v. Flores, 679 S.W.3d 232, 243-44 (Tex. App.-San Antonio 2023, pet. ref'd) (holding that an as applied challenge to § 20.05(a)(1)(A) could not be addressed because courts cannot speculate about the evidence the State would present at trial). Additionally, Burciaga has not pointed us to any authority, and we find none, showing that a pretrial evidentiary hearing amounts to a fully developed record for which an as-applied challenge can be raised. And finally, as applicable to this case, the evidentiary hearing on which Burciaga relies was not presided over by the same judge who actually rendered the challenged ruling. We thus conclude that Burciaga's as-applied claims are all premature as they cannot be addressed at this stage of the proceeding and no recognized exception applies to these circumstances.
The dissent remarks that Burciaga's as-applied challenge can be addressed pretrial because there was a "fully developed record . . . with undisputed facts." In support, Justice Soto points out that Article 28.01 of the Texas Code of Criminal Procedure allows a trial court to hold a pretrial evidentiary hearing. In general, we agree a trial court may hold a pretrial evidentiary hearing. See, e.g., State v. Hill, 499 S.W.3d 853 (Tex. Crim. App. 2016) (permitting a pretrial evidentiary hearing on defendant's motion to quash, which alleged that prosecutorial vindictiveness or selective prosecution had led a district attorney to bring an indictment in violation of defendant's due process rights). More specifically, however, we disagree that Hill can be read as broadly permitting or otherwise implying that as-applied constitutional challenges can be similarly addressed by an Article 28.01 hearing, or that a fully developed record results therefrom.
Accordingly, on this record, we hold that Burciaga's as-applied constitutional challenges, as raised by his motion to quash indictment, were premature and not cognizable as presented. To this extent, we sustain in part the State's first, fourth and fifth issues.
V. Facial Challenges
A. Standard of review
"A facial challenge is an attack on a statute itself as opposed to a particular application." City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 415 (2015). When resolving a facial challenge to the constitutionality of a statute, we focus "on the language of the statute itself rather than how it operates in practice." McGruder v. State, 483 S.W.3d 880, 883 (Tex. Crim. App. 2016) (internal quotation marks omitted). Whether a statute is facially constitutional is a question of law we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). "When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid[,] and that the legislature has not acted unreasonably or arbitrarily." Id. at 14-15. "The burden normally rests upon the person challenging the statute to establish its unconstitutionality." Id. at 15. We "seek to interpret a statute such that its constitutionality is supported and upheld" and "make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown." Peraza, 467 S.W.3d at 514 (citations omitted); Tex. Gov't Code Ann. § 311.021 (stating that courts presume "compliance" with the Texas and United States Constitutions)).
We also note that when a party challenges the constitutionality of a statute, the Office of the Attorney General for the State of Texas must be notified and given the opportunity to enter an appearance in the case. See Tex. Gov't Code Ann. § 402.010. Burciaga duly notified the Attorney General in this case, but no counsel from the Office of the Attorney General entered a formal appearance.
"[T]o prevail on a facial challenge" the challenger "must establish that the statute always operates unconstitutionally in all possible circumstances." State v. Rosseau, 396 S.W.3d at 557. The United States Supreme Court set out this no-set-of-circumstances standard in United States v. Salerno, 481 U.S. 739, 745 (1987). See Ex parte Ellis, 309 S.W.3d 71, 80 n.50 (Tex. Crim. App. 2010). The Supreme Court further explained in Patel that when assessing whether a statute meets the Salerno no-set-of-circumstances standard, it "has considered only applications of the statute in which it actually authorizes or prohibits conduct." Patel, 576 U.S. at 418.
B. Preemption
In the remaining part of its first issue, the State contends that the challenged portion of the statute is not facially unconstitutional due to preemption by federal law.
(1) Applicable law
A claim that a state statute is preempted by federal law is based on the Supremacy Clause of the United States Constitution, which provides that the laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any state to the Contrary notwithstanding." Arizona v. United States, 567 U.S. 387, 398 (2012) (quoting U.S. Const. art. IV, § 2). A state law is preempted and without effect if it falls within an area reserved to federal law. Maryland v. Louisiana, 451 U.S. 725, 746, (1981); Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1, 4 (Tex. 1998). With respect to immigration issues, the Constitution gives Congress the authority and power to "establish a uniform Rule of Naturalization." U.S. Const. art. I, § 8, cl. 4. It is therefore well-established that the federal government has "broad, undoubted power over the subject of immigration and the status of aliens[.]" Arizona, 567 U.S. at 394. Congress has exercised that power in enacting the Immigration and Naturalization Act (INA) found in Chapter 12, Title 8 of the United States Code.
In the immigration context, the United States Supreme court established three criteria under which state regulation affecting noncitizens is preempted: (1) if it regulates immigration-i.e., if it is "essentially a determination of who should or should not be admitted into the country"; (2) if the clear and manifest purpose of Congress was to completely oust state power in the area of regulation; or (3) if it is an obstacle to the accomplishment of the purposes of Congress. DeCanas v. Bica, 424 U.S. 351, at 355-69 (1976).
Because the constitutionality of a statute presents a question of law, we review the facial constitutionality of a criminal statute de novo. See Casey v. State, 349 S.W.3d 825, 828 (Tex. App.-El Paso 2011, pet. ref'd) (citing Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009)).
(2) Analysis
Burciaga challenged a portion of the human smuggling statute by asserting it was facially unconstitutional because every application of it had the potential to conflict with federal immigration policy.
The INA provides that a person commits a criminal offense when, in "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, [he] transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law." 8 U.S.C.A. § 1324 (a)(1)(A)(ii). The same section also makes it an offense for a person who in "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation." Id. at § (a)(1)(A)(iii). The INA allows local law enforcement to make arrests for violations of immigration law, but "the federal courts maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute." Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250, 1263-64 (11th Cir. 2012) (citing 8 U.S.C. § 1329). Courts generally agree that a state regulation that specifically targets the smuggling of noncitizens is deemed preempted because the clear and manifest purpose of Congress was to completely oust state power from this area of regulation leaving no room for analogous state crimes. See id. at 1263-64; see also Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524, 531 (5th Cir. 2013) (holding that a state law criminalizing the "harboring" of undocumented people was preempted by federal law).
Burciaga asserts that a case from the Western District of Texas supports his preemption argument. See Cruz v. Abbott, 177 F.Supp.3d 992, 1021 (W.D. Tex. 2016), rev'd on other grounds, 849 F.3d 594 (5th Cir. 2017). There, individuals and groups who provided legal services, food, clothing, and shelter to noncitizens filed suit. Id. at 999. The court analyzed Texas Penal Code § 20.05(a)(2), which is not the same provision at issue in this appeal. Id. at 1007. At issue here, § 20.05(a)(1)(A) applies to any "person" who transports any "individual" with the intent to conceal that individual from law enforcement. Although there is some overlap between certain applications of § 20.05(a)(1)(A) and the federal scheme, we do not agree that the clear and manifest purpose of the federal law barred state prosecutions for criminal smuggling of all persons. DeCanas, 424 U.S. at 357-58. "Whatever the purpose or purposes of the state law, pre-emption analysis cannot ignore the effect of the challenged state action on the pre-empted field." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 107 (1992). "The key question is thus at what point the state regulation sufficiently interferes with federal regulation that it should be deemed preempted under the Act." Id. The legislative history of the human smuggling statute does show an intent on the part of Texas legislators to facilitate the prosecution of criminal traffickers who prey upon vulnerable persons-citizens or not-which, as all parties here agree, is a legitimate realm of state criminal law. House Comm. on Crim. Just., Tex. H.B. 260, 82nd Leg., R.S. (2011). Accordingly, despite Congress's possible intent to preempt state criminal statutes that directly criminalize the smuggling of noncitizens, we conclude that Congress did not intend to preempt neutral state smuggling statutes like § 20.05(a)(1)(A).
The federal statute restricts liability to situations in which the transportation is "in furtherance" of smuggling. See 8 U.S.C. § 1324(a)(1)(A)(ii). In addition, the federal statute sets out no mandatory minimum sentence and a five-year or ten-year maximum (depending on whether the offense was done for the purpose of commercial advantage or private financial gain); the current Texas statute sets out a two-year minimum sentence and a ten-year or 20-year maximum (depending on whether the offense was committed with the intent to obtain a pecuniary benefit). 8 U.S.C. § 1324(a)(1)(A)(ii), (iii), (B)(ii); Tex. Penal Code Ann. §§ 20.05(a), (b), (b)(1)(C), 12.23, 12.34. The Texas statute applies to any "person" who transports an "individual" with the intent to conceal that individual from the police, regardless of the citizenship status of either person. See Tex. Penal Code Ann. § 20.05(a)(1)(A). Although some applications of § 20.05(a)(1)(A) may conflict with the federal act's comprehensive scheme or with the federal government's discretion over immigration-related prosecutions, when the laws are applied to citizens, those concerns are simply not implicated. Accordingly, preemption cases involving statutory language that singles out the transporting or harboring of noncitizens are distinguishable and not controlling. See Flores, 679 S.W.3d at 247 (collecting cases).
Texas exercised its police powers in passing a statute that applies equally to those who smuggle citizens as to those who smuggle noncitizens. See Tex. Penal Code Ann. § 20.05(a)(1)(A). The fact that some applications of the law could implicate federal immigration priorities does not mean that the statute conflicts with federal law. See DeCanas, 424 U.S. at 355 ("[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.").
The statute, as written, does not regulate immigration, it was not enacted contrary to the clear and manifest purpose of Congress to occupy the field, and it does not operate as an obstacle to the accomplishment of the purposes of Congress. See Kansas, 140 S.Ct. at 806-07; DeCanas, 424 U.S. at 355-63. Thus, we reject Burciaga's facial preemption challenge to the statute and conclude the trial court's order cannot be upheld on this ground. Accordingly, we sustain the remaining part of the State's first issue.
(C) Vagueness
In the remaining part of the State's fourth issue, it contends the trial court's quashing of the indictment based on constitutional vagueness is without merit.
(1) Applicable law
"'The prohibition of vagueness in criminal statutes,' . . . is an 'essential' of due process, required by both 'ordinary notions of fair play and the settled rules of law.'" Sessions v. Dimaya, 584 U.S. 148, 155 (2018) (quoting Johnson v. United States, 576 U.S. 591, 595-96 (2015)). "The void-for-vagueness doctrine . . . guarantees that ordinary people have 'fair notice' of the conduct a statute proscribes." Sessions, 584 U.S. at 155-56. As the United States Supreme Court explained, "[t]he doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges." Id. Either a lack of fair notice or a lack of standards for law enforcement provides a basis for a facial vagueness challenge. Ex parte Jarreau, 623 S.W.3d 468, 472 (Tex. App.-San Antonio 2020, pet. ref'd). When a vagueness challenge involves First Amendment considerations, the criminal law can be held facially invalid even though it may not be unconstitutional when applied to the defendant's conduct. State v. Doyal, 589 S.W.3d 136, 144 (Tex. Crim. App. 2019). This is so because "[i]t has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-612 (1973). But there are recognized limits for other claims. "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Id. at 610. A facial challenge to the constitutionality of a criminal statute raises questions of law, which an appellate court reviews de novo. Ex parte Lo, 424 S.W.3d at 14.
(2) Analysis
In his motion to quash, Burciaga asserted that § 20.05(a)(1)(A) is facially vague because it fails to provide a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, and it fails to establish definite guidelines for law enforcement. He contends that, based on how the provision is written, the crime is accomplished the instant an individual desires any financial benefit and intends to conceal someone from a police officer. He argues that various hypotheticals illustrate his point. For example, he asks rhetorically, "[w]ould a game of hide and seek, with a monetary prize at stake, involving an off-duty police officer as the searcher, violate the statute?" And he asks, "would a taxi driver picking up a passenger who wants to avoid their friend, a police officer," also lead to a violation.
In Flores, the same hypotheticals were posed by multiple defendants, who were all charged with the same offense as Burciaga, and who similarly brought vagueness challenges. See Flores, 679 S.W.3d at 251. There, our sister court of appeals in San Antonio held that Broadrick was controlling of the case. Id. (citing Broadrick, 413 U.S. at 610-11). That is, as the United Sates Supreme Court explained, even if the outermost boundary of a challenged statute is imprecise, the resulting uncertainty has little relevance, where a charged defendant's conduct falls squarely within the "'hard core' of the statute's proscriptions." Broadrick, 413 U.S. at 610-11.
Burciaga also argues that the statute's vagueness allows for arbitrary enforcement because the offense is enforced in the singular context of transporting noncitizens. We disagree. The wording of the provision establishes minimal guidelines governing law enforcement. Flores, 679 S.W.3d at 251. As Flores determined, it conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Flores, 679 S.W.3d at 251.
We conclude that Burciaga failed to establish the statute was facially vague. Thus, the trial court erred to the extent it granted the motion to quash on Burciaga's vagueness claim. Accordingly, we sustain the remaining part of the State's fourth issue.
(D) The Fourth Amendment
In the remaining part of its fifth issue, the State asserts § 20.05(a)(1)(A) is not unconstitutional based on violating the Fourth Amendment.
(1) Applicable law
The Fourth Amendment provides that, "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures shall not be violated ...." U.S. Const. amend. IV. As described by the United States Supreme Court, "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Terry v. Ohio, 392 U.S. 1, 9 (1968). Fundamentally, the Fourth Amendment prohibits unreasonable "seizures" to safeguard "[t]he right of the people to be secure in their persons." Torres v. Madrid, 592 U.S. 306, 309 (2021). In this context, the arrest of a person is the quintessential seizure of a person under our Fourth Amendment jurisprudence. Id. at 311.
"[F]acial constitutional challenges under the Fourth Amendment are not categorically barred or especially disfavored." Patel, 576 U.S. at 415. As in other facial challenges attacking a statute itself and not a particular application, Fourth Amendment challenges are "the most difficult." Id.
(2) Analysis
In challenging a portion of the human smuggling statute, Burciaga contends it criminalizes protected conduct, namely, the right of a person to assist another person to avoid police. Relying on Gurrola v State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (en banc), he urges that an individual protected by Fourth Amendment rights has a "constitutional right to walk away and not answer any questions put to him without such action [itself] creating reasonable suspicion in the mind of the officer that criminal activity was afoot." There, the Court of Criminal Appeal reiterated there is nothing unlawful about an individual walking away when an officer attempts to question him or her. Id. at 302. On this premise, he argues it follows that, because the challenged statute "does not require that the passenger that the driver intends to conceal (1) has committed a crime, (2) is under reasonable suspicion for committing a crime, or (3) is otherwise legitimately sought by police," its only function is to criminalize conduct protected by the Fourth Amendment. He contends it violates the Fourth Amendment by not requiring the police to have a legitimate or cognizable reason to discover the person being concealed. We disagree.
Generally, facial constitutional challenges under the Fourth Amendment are limited to statutes that authorize warrantless seizures, not to penal laws criminalizing conduct. Patel, 576 U.S. at 428 (holding facially invalid on Fourth Amendment grounds a municipal code provision). In Patel, the law at issue allowed police to inspect a hotel registry information on demand. Patel, 576 U.S. at 421. The provision made the failure to make the record available punishable as a criminal misdemeanor and it subjected the hotelier to immediate arrest. Id. at 421. A group of motel operators challenged the statute asserting it was facially unconstitutional because it did not provide the hotel operator with an opportunity to have a neutral decisionmaker review an officer's demand to search the registry before the operator faced penalties for failing to comply. Id. The U.S. Supreme Court held that, when applying the no-set-of circumstances standard to a statute authorizing warrantless searches, that in such case:
the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer's search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional "applications" that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.Id. at 418-19.
Burciaga asserts that, here, it would not matter if, in some cases, law enforcement had sufficient probable cause or consent to search because the law was facially invalid by authorizing seizures when police otherwise had no legitimate basis. Burciaga also complains that § 20.05(a)(1)(B) validly criminalizes the conduct of a driver who assists the escape of a passenger whom the police have a legitimate, constitutional reason to detain. In contrast to that provision, he points out that § 20.05 (a)(1)(A) does not pass constitutional muster because it criminalizes the mere act of transporting persons with intent to innocently conceal them. However, the State's ability to prosecute under another statutory provision does not necessarily undermine its ability to prosecute under a different provision. "In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [its] discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Ultimately, Patel, and the authority it relies on, address search regimes permitting searches or seizures without a warrant or probable cause. Patel, 576 U.S. at 416-17. Yet § 20.05(a)(1)(A) particularly defines the criminal conduct at issue. Under the actus reus requirement, a person charged must have transported another person. See id. Under the mens reus requirement, the defendant must have acted with the specific intent to conceal that person from police. See id.; see also United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978). Without probable cause to believe that both conditions have been met, no legal seizure is possible. State v. Espinoza, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023) ("Probable cause exists under Article 14.01(b) if, when the arrest is made, the facts, circumstances, and reasonably trustworthy information known to the arresting officer, are sufficient for a prudent person to conclude that an individual committed or was committing a criminal offense.").
Additionally, § 20.05(d) relatedly provides: "If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections." Tex. Penal Code Ann. § 20.05(d). The inclusion of this provision within the statutory scheme shows the legislature wanted the challenged provision to be available as a tool to punish proscribed conduct, even if other code sections also prohibited the same conduct. See Flores, 679 S.W.3d at 250 (collecting cases).
For all these reasons, we disagree that the challenged portion of the statute is facially unconstitutional in violation of the Fourth Amendment. Thus, we conclude the trial court erred in granting the motion to quash on Burciaga's Fourth Amendment claim. Accordingly, we sustain the remaining part of the States's fifth issue.
VI. Conclusion
We reverse the trial court's order quashing the indictment and remand the cause for further proceedings.
CONCURRING OPINION
JEFF ALLEY, Chief Justice
I join Justice Palafox's majority opinion and write separately only to address arguments advanced by the dissent and to distance myself from one case (and its progeny) cited in the majority opinion. It would be bad enough for a court to tell a sovereign state that it cannot protect its citizens from a dangerous crime. It is doubly so when done only by reading the tea leaves of Congressional intent to find field preemption. The 11th Circuit did just that in Georgia Latino All. for Hum. Rts. v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012) (GLAHR). Other courts have followed. Texas should not.
I. THE AS-APPLIED FACTS
If we were forced to assume that the factual record at the hearing below contains all that is necessary for the as-applied preemption challenge, these are the relevant facts:
On the morning of August 9, 2022, a task force of Department of Public Safety officers watched two major east-west arteries in the upper valley of El Paso that were known conduits for drug and human smuggling (Artcraft and Country Club roads). Both roads connect Texas to a border area in New Mexico often used for smuggling persons and drugs into the United States.
U.S. Border patrol officers alerted the task force that persons were seen entering a white Impala that was spotted heading East (into Texas and the City of El Paso). At the time, Officer Martin Sanchez from the El Paso Police Department was patrolling in marked unit. He was asked by the Texas DPS to stop of the Impala because it was speeding. He located the Impala and confirmed for himself that the vehicle was traveling 46mph in a 30mph zone (in a part of Country Club that bisects a residential neighborhood). The Impala had darkened windows. After pulling the Impala over, its driver, Burciaga, appeared nervous as he interacted with Officer Martin.
Burciaga had three passengers in the vehicle. U.S. Border Patrol agents, who soon arrived at the scene, confirmed that Burciaga's three passengers were in the country illegally. Border Patrol took them into custody. Burciaga, after being read his Miranda rights, admitted to DPS officers that he knowingly picked up the three persons and was taking them to a motel. He was to receive an undisclosed amount of money later that day for doing so. He knew his passengers had entered the country illegally and he was transporting them to avoid detection of law enforcement. Burciaga himself has a Texas Drivers License and a federal Social Security number.
Gabriel Nava, a Captain with the DPS who supervises officers from El Paso to the Big Bend region, testified that criminal cartels from Mexico are behind the human smuggling in this area. Human smuggling is now their number one source of revenue. He described another "disturbing trend" where "one criminal organization is responsible for the smuggling" persons over the border and then "another organization . . . take custody of those people and charge them a separate fee for passage." Not all persons being transported are illegal immigrants, others include people in forced servitude, unaccompanied children, and those in prostitution rings. Captain Nava testified that "a lot" of these smugglers have now armed themselves, and they tend to be reckless drivers and "really don't have any regard for the safety of our motor public either." In his words, "So, it's a profit and it's in anything for a profit, and these people are not seen as people to the organizations. They are dollar signs, so they don't care[.]"
Other sources agree: "Migrant smuggling on the U.S. southern border has evolved over the past 10 years from a scattered network of freelance "coyotes" into a multi-billion-dollar international business controlled by organized crime, including some of Mexico's most violent drug cartels." New York Times Smuggling Migrants at the Border Now a Billion-Dollar Business 7/25/2022 (Smuggling Migrants at the Border Now a Billion-Dollar Business-The New York Times (nytimes.com) (last visited March 29, 2024) (also recounting the story of an abandoned tractortrailer found near San Antonio with most of the 64 smuggled people inside already dead).
Based on this record, the trial court concluded that Tex. Penal Code § 20.05(a)(1)(a) was not preempted by federal law, either on its face or as applied.
II. How We Must View Federal Preemption
"Dual sovereignty is a defining feature of our Nation's constitutional blueprint." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 751 (2002). The Federal Government and the several States each balance the other's powers. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."). Accordingly, federal preemption should therefore never be viewed lightly, as it vests control in one sovereign to the exclusion of the other. See Schwartz v. Texas, 344 U.S. 199, 202-03 (1952) ("The exercise of federal supremacy is not lightly to be presumed.").
"When acting within its enumerated powers, 'Congress's choices range from complete reliance on state policy to complete preemption of state law, with many iterations of 'cooperative federalism' between these extremes.'" Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 846 (Tex. 2020), (quoting Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 761 (4th Cir. 2018)). Congress may completely preempt state law through an express statement of that intent on the face of its statutes. See Horton v. Kansas City S. Ry. Co., 692 S.W.3d 112, 120 (Tex. 2024). No one makes that claim here. Instead, here we deal with the murkier area of "field" preemption where we try to discern Congress's intent. The guideposts that we must follow for that inquiry sometimes get lost in the paragraph structure, so I set them out separately:
• "A party arguing for implied preemption has the burden on that issue." Horton, 692 S.W. at 132 (citing Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 (Tex. 2009)).
• Courts should hesitate to infer field preemption unless "the nature of the regulated subject matter permits no other conclusion" or "Congress has unmistakably so ordained." De Canas v. Bica, 424 U.S. 351, 356 (1976).
• "[Implied preemption], like all preemption arguments, must be grounded 'in the text and structure of the statute at issue.'" Kansas v. Garcia, 589 U.S. 191, 208 (2020) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).
• "The purpose of Congress is the ultimate touchstone in every pre-emption case." Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks omitted).
• Implied preemption analysis does not justify a "free wheeling judicial inquiry into whether a state statute is in tension with federal objectives"; such an endeavor "would undercut the principle that it is Congress rather than the courts that pre-empts state law." Gade v. National Solid Wastes Management Assn, 505 U.S. 88, 111, (1992) (Kennedy, J, concurring in part and concurring in judgment).
• "[I]n all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth, 555 U.S. at 565 (internal quotation marks and alterations omitted).
As preemption is a question of law reviewed de novo, PHI Air Med, 610 S.W3d at 846, we must determine whether Congress intended to fill the entire field of human smuggling where the persons smuggled happen to be immigrants.
III. The As Applied Preemption Challenge Is One Of First Impression In Texas
An as-applied challenge to § 20.05(a)(1)(a) has not been resolved by any Texas court. The one Texas case that address the constitutionality of § 20.05(a)(1)(a) heard and rejected a facial challenge. State v. Flores, 679 S.W.3d 232, 243-44 (Tex. App.-San Antonio 2023, pet refd). No as applied challenge was made in that case. Id. And no Texas Court of Criminal Appeals or Texas Supreme Court case gives us direct guidance. We are of course bound to follow dictates from the United States Supreme Court on preemption. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (stating that lower Texas courts must follow only higher Texas courts and the United States Supreme Court in deciding the "appropriate federal rule of decision").
The most recent and relevant decision of the United States Supreme Court is Arizona v. United States, 567 U.S. 387 (2012), which analyzed field and conflict preemption for four sections of an Arizona statute. The closest analog in those four provisions is the Court's discussion of Section 3 of Arizona's S.B. 1070. That section punished a noncitizen's "willful failure to complete or carry an alien registration document." Arizona, 567 U.S.at 400. After cataloging the federal regulations in the "field of alien registration," the Court concluded that "[t]he framework enacted by Congress leads to the conclusion . . . that the Federal Government has occupied the field of alien registration." Id. at 401. The Court noted "[t]he federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance." Id. Given the federal government's extensive regulation in the filed of immigrant identification, the Court conclude that Arizona could not enter that same field. Id. at 403.
While respecting that opinion, I find its analogous support for preemption of § 20.05 tenuous. First, the most obvious difference. Arizona's statute was directed at the immigrants while § 20.05(a)(1)(a) of the Texas Penal Code is directed at the smugglers. The Court's discussion in Arizona dealt with state regulations of the aliens themselves, not the third-party smugglers who transport them. The distinction is stark. By definition, a law that punishes smugglers does not regulate aliens at all.
Second, the Court in Arizona chose its language carefully, and limited its holding to the field of alien registration. Fuentes-Espinoza v. People, 408 P.3d 445, 455 (Col. 2017) (Eid, J., dissenting) ("The Supreme Court in Arizona carefully limited its field preemption analysis to the particular field of alien registration."). When analyzing field preemption, the relevant field should be defined narrowly. De Canas, 424 U.S. at 360 n.8, (quoting Hines v. Davidowitz, 312 U.S. 52, 78-79 (1941) (Stone, J., dissenting)) ("Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its legislative history."). And here, we deal with a different field-criminal conduct that facilitates the transport of aliens who have illegally entered the United States.
A third distinction between the Arizona and Texas statutes is the scope of the federal government's involvement in the areas that each State was regulating. Arizona attempted to insert itself into the documents that immigrants must carry-an area Congress began regulating in 1940, even well before its comprehensive 1952 Immigration and Naturalization Act. Id. at 400 (citing Hines, 312 U.S. at 70 (referring to the 1940 Act as a "comprehensive scheme a complete system for alien registration"). The current registration enactment is also comprehensive, with requirements for fingerprinting, application, reporting changes of address, and requirements to carry proof of registration. Arizona, 567 U.S. at 401. By contrast, the federal crime for transporting illegal aliens is found in a single section of Title 8, and the specific subsection criminalizing the transport of those persons consumes a mere 53 words. 8 U.S.C. § 1324(a)(ii).
Aside from Arizona v. U.S., several federal circuit of appeals cases and one out-of-state decision have preempted of state smuggling statutes. And while we might consider those opinions for their persuasive value, we need not follow them. See Pidgeon v. Turner, 538 S.W.3d 73, 83 (Tex. 2017) (holding that court of appeals erred in directing trial court to conduct proceeding consistent with a federal 5th Circuit precedent); Penrod Drilling, 868 S.W.2d at 296 ("While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court) (emphasis original); Barstow v. State, 742 S.W.2d 495, 500-01 (Tex. App.-Austin 1987, writ denied) (stating that decisions of the federal courts of appeal do not "bind any Texas court, even on federal questions, although they are of course received with respectful consideration[.]") (emphasis original).
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013);Georgia Latino All. for Hum. Rts. v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012); Fuentes-Espinoza v. People, 408 P.3d 445, 446 (Colo. 2017).
For the reasons discussed next, I find those opinions unpersuasive.
IV. Field Preemption
Field preemption precludes States, "from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Arizona, 567 U.S. at 399. As our governing standards dictate, we must first define the "field" and determine whether "Congress has unmistakably so ordained" that Texas is excluded from that field. De Canas, 424 U.S. at 356. We answer those questions from "the text and structure of the statute at issue.'" Kansas, 589 U.S. at 208 (quoting, CSX Transp., Inc., 507 U.S. at 664).
Immigration itself is an expansive field as Title 8 and the several federal agencies that administer it attest. In broad brush, it regulates who may enter the country, who may stay and for how long, and while here, it addresses issues like work and housing concerns. But the federal statute on which Burciaga urges preemption occupies a much narrower field-criminalization of those who in varying ways assist the circumvention of the legal immigration process, and particularly here, transporting of aliens who have who have no legal status here. Courts should also separate the central concern of a federal enactment, from its mere peripheral concern. In DeCanas v. Bica, the Court declined to preempt a California statute that regulated the hiring of illegal entrants. 424 U.S. 351, 360-61 (1976). Based on the federal enactments on that topic at that time, employment was only a "peripheral concern" of Congress. Id. As the DeCanas Court observed, "[t]he central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." Id. at 359. I find no indication that usurping state police powers to control smuggling fits into that central concern.
Congress later legislated more extensively in that field. See 8 U.S.C. 1324a.
Congress criminalizes the conduct of those who assist in illegal immigration in 8 U.S.C. § 1324. Paraphrasing § 1324(a), it identifies four types of illegal conduct: (1) bringing aliens into the country at other than a port of entry; (2) knowing or reckless transport of aliens not lawfully here "in furtherance of such violation of law"; (3) harboring or shielding those aliens from detection; and (4) encouraging or inducing aliens to enter or reside here in violation of the law. 8 U.S.C. § 1324(a)(1)(A)(i)(ii)(iii) (iv). Other provisions in §1324 provide a defense for bona fide religious denominations and purposes; allow for seizure of vessels, vehicles, or aircraft used in the violation of the section; set a standard for how to prove an alien is here in violation of the law; allow for use of videotaped depositions; and provide for the punishment ranges. 8 U.S.C. 1324(a)(1)(B) (penalty provision), (C) (religious exemption); (a)(3) (penalty for employing), (a)(4) (penalty enhancement); (b) (seizure of vessels); (b)(3) (evidence standard); (c) (authority to arrest); (d) (videotaped witness testimony).
Yet of those provision, only § 1324(c) refers to State actors. It provided that "[n]o officer or person shall have authority to make any arrests for violation of any provision of this section except officers and employees of the Service designated by the Attorney General . . . and all other officers whose duty it is to enforce criminal laws." 8 U.S.C. § 1324(c). By its wording, the provision "allows state and local law enforcement officials to make arrests for violations of § 1324." Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1025 (9th Cir. 2013); Arizona, 567 U.S. 387, 448, (Scalia, dissenting) (including parenthetical stating that § 1324(c) provides state officials "authority to make arrests for transporting and harboring certain aliens."). Because this kind of conduct might occur anywhere throughout the United States, it unsurprising that Congress wanted to enlist state and local assistance in making arrests. But using that provision to say a State cannot also criminalize some overlapping conduct within its own borders is an overstatement.
The textual support for field preemption is mostly attributed to 8 U.S.C. § 1329. See GLAHR, 691 F.3d at 1265 (citing § 1329 for proposition that "[b]y confining the prosecution of federal immigration crimes to federal court, Congress limited the power to pursue those cases to the appropriate United States Attorney"). While that statement is literally true-state prosecutors do not file cases in federal court, nor do they indict defendants on federal charges in state court- this begs the question of whether Texas may enact a state crime to prosecute those in this state that engage in the same criminal conduct. I disagree that any of the authority cited by the federal circuits address that proposition.
And a dissection of §1329 shows the opposite. The section contains five sentences. Only three of those sentences touch on the question here, and I set them out below with a commentary on each:
"The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter."
Nothing surprising here. Congress dictates the jurisdiction of federal courts, whose limited jurisdiction arises only from "that power authorized by Constitution and statute." Gunn v. Minton, 568 U.S. 251, 256 (2013). What is relevant can be found in the text of the prior version of this sentence: "The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this title."The 1997 revision inserted the phrase "brought by the United States" which operates as a term of limitation, and seems if anything, to acknowledge that other jurisdictions might have their own interest in pursuing parallel crimes.
See Immigration and Nationality Act, Pub. L. No. 414, 1952 U.S.C.C.A.N. 228, amended by the Omnibus Consolidated Appropriations Act, PL 104-208, § 381, 110 Stat 3009-650.
Omnibus Consolidated Appropriations Act, PL 104-208, § 381, 110 Stat 3009-650.
Or for that matter, § 1329 could have been drafted to read as does the first section of the general jurisdictional statute for federal crimes: "The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C.A. § 3231 (emphasis added). That wording might better support the exclusive jurisdiction argument-but the language used by Congress in § 1329 does not.
"It shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States."
The key phrase in this sentence is "every such suit" that refers to charges arising under provisions of this subchapter. Congress could have said, "every crime encompassing the conduct as described in this subchapter" which might then give § 1329 a meaning consistent with field preemption. Instead, Congress is simply telling Justice Department attorneys that they have a duty to prosecute § 1324(a) crimes.
"No suit or proceeding for a violation of any of the provisions of this subchapter shall be settled, compromised, or discontinued without the consent of the court in which it is pending and any such settlement, compromise, or discontinuance shall be entered of record with the reasons therefor."
This might be the most telling sentence in § 1329. It limits a prosecutor's discretion to simply dismiss at their discretion the conduct that § 1324 describes. Rather than some indication that Congress wants to give the executive the discretion not to prosecute smugglers, it constrains a prosecutor's latitude to short shrift these crimes-the prosecutor must state on the record what they are doing and why-hardly a carte blanch to ignore this kind of conduct.
The other two sentences of §1329 are not relevant here: "Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended.... Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." 8 U.S.C.A. § 1329.
To be sure, three federal circuit courts of appeals have found field (and conflict preemption) of state laws that criminalized transporting illegal aliens. I simply find their analysis unpersuasive. The lead case is the 11th Circuit opinion in GLAHR. Its rationale includes language from Arizona v. United States, the arrest provision in § 1324(c), and court jurisdiction provision in § 1329 which I address above. 691 F.3d at 1263-65. GLAHR also hinges on the claim that § 1324 is a "comprehensive framework to penalize the transportation . . . of unlawfully present aliens." Id. at 1263. It finds that comprehensive scheme, however, in some odd places. GLAHR cites to § 1324(d) that authorizes videotaped depositions in the prosecution of the federal crime and § 1324(e) that mandates community outreach programs to "educate[] the public in the United States and abroad about the penalties for bringing in and harboring alien in violations of this section." Id. at 164 (quoting § 1324(e)). Allowing for video depositions is at best a procedural tool available to federal prosecutors. And setting aside that the community outreach provision makes no mention of transporting aliens, a program for PSA announcements hardly signals that Congress intends to fill a field to exclusion of all others.
The 11th Circuit also looked to Com. of Pa. v. Nelson, 350 U.S. 497 (1956) which held that Pennsylvania could not criminalize sedition because Congress had comprehensively done so in the Smith Act. Yet the Nelson Court states at the outset that it does not "limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds." Id. at 500. Texas has done nothing more in protecting itself from the criminal organizations that transport persons in a way that raises risks to the ordinary Texas motorist.
Moreover, that Congress may have been complete when writing its statute does not necessarily mean that it intended to fill a field. For instance, Congress wrote comprehensive rules on work requirements for public assistance that did not preempt state measures on the same topic. New York State Dep't of Soc. Services v. Dublino, 413 U.S. 405, 415 (1973). "The subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem[.]" Id. Sometimes, "a detailed statutory scheme [is] both likely and appropriate, completely apart from any questions of pre-emptive intent." Id. So even calling the inclusion of provisions for videotaped depositions and PSA comprehensive, does not prove Congressional intent to preclude State actors in this field.
The other federal cases, Whiting, 732 F.3d 1006 and United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013), do little more than repeat most of the same arguments advanced in GLAHR and follow its holding as persuasive authority. South Carolina, 720 F.3d at 53; Whiting, 732 F.3d at 1026. And even if those cases correctly decided the challenges to other state's laws, their application fails here. Section 20.05(a)(1)(a) does not require as an element of the offense that the person being smuggled is an illegal alien. Its core elements, with some additions and deletions over time, are only that a person "knowingly" uses a specified means of conveyance- motor vehicle-to transport another individual with the intent to conceal that individual from law enforcement. This has been the case since 1999 when the provision was first enacted.
In the first section of the merits portion of the opinion in Whiting, the court struck down the Arizona statute because its language was "unintelligible" and was therefore "void for vagueness." 732 F.3d at 1019. The majority then went on, however, to address preemption. Id. at 1022. A dissenting justice argued the majority should have never reached the preemption claim given its vagueness holding. Id. at 1029 (Bea, J., concurring and dissenting).
Act of May 24, 1999, 76th Leg., R.S., ch.1014 § 2, 4 Tex. Gen. Laws 3798, 3799 (including additional element of "substantial likelihood that the individual will suffer serious bodily injury"); Act of May 23, 2011, 82nd Leg., R.S. ch. 223, § 2, 1 Tex. Gen. Laws 799 (making serious bodily injury an enhancement from the base offense); Act of May 26, 2015 84th Leg., R.S. ch. 333 § 14, 2 Tex. Gen. Laws 1508, 1514 (adding "with intent to obtain a pecuniary benefit" as element of base offense).
So while sharing some commonalities, the conduct criminalized in the Texas and federal statutes on transportation focus on different activities. Section 1324(a)(ii) makes it a crime to knowingly or recklessly transport of aliens not lawfully here "in furtherance of such violation of law[.]" 8 U.S.C. § 1324(a)(1)(A)(ii). That is, the crime targets conduct that helps the alien in furtherance of his or her illegal activity. See Fuentes Espinoza, 408 P.2d at 456-57 (Eid, J., dissenting) (noting how the focus of the federal law is on the unlawful conduct of the passengers and that the driver is helping them accomplish it). The Texas statute focuses only on the conduct of the smuggler, no matter how it may help the person being smuggled. The difference in focus and conduct if anything justifies the common situation where dual sovereigns prosecute similar conduct, but for different crimes.
As Justice Alito recently wrote for the majority of the Court:
We have long held that a crime under one sovereign's laws is not "the same offence" as a crime under the laws of another sovereign. Under this "dual-sovereignty" doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.Gamble v. United States, 587 U.S. 678, 681 (2019) (rejecting double jeopardy challenge to federal prosecution following a state law conviction for "felon in possession" of a handgun.).
One more comment. The dissent does not reach the issue of conflict preemption, but alludes to some of the reasoning from courts that do. They claim that allowing States to criminalizing smuggling of undocumented immigrants within a state's borders will somehow interfere with important federal policies. The GLAHR court suggested that U.S. Attorneys must be able to exercise their discretion "in a manner consistent with the established enforcement priorities of the Administration they serve." 691 F.3d at 1265. (Which begs the question, what is a sovereign state supposed to do if federal "priorities" don't happen to include human smuggling within their borders?). The Fourth Circuit took this argument one step further, suggesting that State interdiction of domestic smugglers infringes on the Federal Government's role to conduct foreign policy. South Carolina, 720 F.3d at 531. That is, it is somehow necessary to our foreign relations not to prosecute Texans who for money, transport illegal immigrants to keep them secreted from immigration officers.
These arguments simply make no sense here. The State claims that Burciaga (for pay) transported persons with the intent to conceal them from law enforcement. I eagerly acknowledge that Burciaga's guilt is yet to be proven to a jury, and that there is no evidence in this record that he himself is involved in organized crime. But we would be sticking our heads in the sand to ignore that if not Burciaga, many like him, are directly or indirectly doing the cartel's bidding by moving human cargo through Texas. What possible federal policy or foreign policy is fostered by not pursuing the prosecution every person who engages in this conduct? Section 20.05(a)(1)(a) is the quintessential exercise of a State's police powers to protect its own citizens. See Flores, 679 S.W.3d at 232 ("Here, Texas exercised its police powers to pass a criminal law that applies equally to those who smuggle citizens and those who smuggle noncitizens."); Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007) (finding violation of § 20.05 constitutes a crime or moral turpitude because of its fraudulent intent). If the State can prove its indictment, the conduct at stake should never be tolerated. Texas has every right to forbid it.
Our record contains uncontradicted testimony that the Mexican cartels control the illegal migration business. And recent testimony before Congress would make the same point. In depositions taken for the House Committee on Homeland Security, the Chief Patrol Agent for the Tucson Sector, John Modlin, testified:
Q: And turning briefly to human smugglings, you said earlier that cartels are responsible for the majority of human smuggling that you see in your sector. Is that correct?
A: So-yeah. So if someone's being smuggled, they're using a criminal organization. So what's interesting about the border certainly that has changed significantly, when I started-you know, when I started in '95, people could just get to the border and cross on their own. You know, now nobody crosses without paying the cartels. So the cartels, you know, determine when people cross, you know, how many people cross at a time, all of that. It's all-it's all controlled by them.https://homeland.house.gov/2023/12/14/now-nobody-crosses-without-paying-senior-border-patrol-agents-describe-unprecedented-cartel-control-at-southwest-border/ (last visited April 2, 2024).
DISSENTING OPINION
LISA J. SOTO, Justice
In my view, this case turns on the doctrine of federal preemption-something we can and should opine on at this pretrial juncture based on the undisputed evidence in the record. The State is prosecuting Burciaga expressly because he was transporting and concealing undocumented noncitizens who were allegedly in the U.S. illegally. Federal law occupies the field of prosecuting individuals who transport and conceal undocumented noncitizens who are in the U.S. illegally. I would therefore conclude that the portion of the Texas Human Smuggling Statute, as applied to Burciaga's case, is at least field-preempted by federal immigration law and affirm the trial court's judgment granting the motion to quash the indictment.
Because I believe that Burciaga's prosecution is preempted by federal law, I do not address his vagueness or Fourth Amendment claims.
A. The INA v. the Texas Human Smuggling Statute
The Immigration and Naturalization Act (INA) provides that a person commits a criminal offense when, in "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, [he] transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law." 8 U.S.C.A. § 1324 (a)(1)(A)(ii). The same section also makes it an offense for a person who in "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation." Id. at § (a)(1)(A)(iii).
At the time of Burciaga's arrest and indictment, the Texas Human Smuggling Statute provided in relevant part: "A person commits an offense if the person, with the intent to obtain a pecuniary benefit, knowingly . . . uses a motor vehicle . . . to transport an individual with the intent to . . . conceal the individual from a peace officer[.]" State v. Flores, 679 S.W.3d 232, 240 (Tex. App.-San Antonio 2023, pet. ref'd) (citing to the version of Tex. Pen. Code Ann. § 20.05(a)(1)(A) in effect after the 2015 amendment but before the current iteration).
The current version of the statute, which was most recently amended in 2023, no longer requires evidence that the defendant had the intent to obtain a pecuniary benefit, instead making it enhancement; the other elements of the offense remain the same. See Tex. Pen. Code Ann. § 20.05 (a)(1)(A) ("A person commits an offense if the person knowingly: (1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to: (A) conceal the individual from a peace officer or special investigator; or . . . ").
The question is whether Texas Penal Code § 20.05(a)(1)(A) (of the Texas Human Smuggling Statute) is preempted by the INA provisions that criminalize the transportation and concealment of what the INA refers to as "aliens"who are unlawfully in the country.
Henceforth, when the opinion uses the word "alien," it is only to follow the language of federal law. Otherwise, the opinion uses the term "undocumented noncitizens."
I only analyze Burciaga's as-applied challenge below. I agree that because the Texas Human Smuggling Statute provision has applications outside the scope of immigration law, i.e., it does not penalize only individuals who transport or harbor undocumented noncitizens, it is not facially invalid. See State v. Flores, 679 S.W.3d 232, 245 (Tex. App.-San Antonio 2023, pet. ref'd) (recognizing that "the legislature also facilitated the prosecution of criminal traffickers who prey upon vulnerable persons-citizens or not-which, as all parties here agree, is a legitimate realm of state criminal law."); see also McGruder v. State, 483 S.W.3d 880, 883 (Tex. Crim. App. 2016) (recognizing that to be held facially invalid, the statute would have to be invalid under all circumstances).
B. Burciaga's As-Applied Federal Preemption Challenge
Burciaga challenges the constitutionality of the Texas Human Smuggling Statute as applied to his case because there is no dispute that the State is applying the statute specifically to prosecute him for transporting and concealing undocumented noncitizens who are allegedly in the U.S. illegally. The majority posits that such a challenge may not be made prior to trial, as it involves "recourse to evidence," and that Burciaga must wait until trial to raise the issue when the State's theory of prosecution will be more clearly elucidated. But I believe current Court of Criminal Appeals' precedent allows this pretrial challenge because Burciaga cannot be prosecuted under a state statute if, as applied, it is preempted by federal law and his right to be free from such a prosecution will be lost if not vindicated prior to trial. The present record allows us to determine whether Burciaga's prosecution is in fact preempted by federal law.
Below, the opinion addresses (1) the undisputed evidence on the record, (2) why we can and should address Burciaga's as-applied challenge at this juncture, (3) the doctrine of federal preemption in the immigration context, and (4) the analysis leading to the conclusion that the portion of the Texas Human Smuggling Statute at issue is at least field-preempted by the INA as applied to Burciaga's case.
(1) The undisputed evidence on the record
On the morning of Burciaga's August 9, 2020 arrest, federal Border Patrol agents, Homeland Security Investigations (HSI), Texas Department of Public Safety (DPS) agents, and El Paso Police Department were conducting a joint "surveillance" operation in El Paso near the Mexican border "where numerous smuggling of persons violations have occurred." According to DPS Agent Jesus Adrian Garcia, his supervisor, DPS Captain Gabriel Nava, and El Paso Police Officer Martin Sanchez, the surveillance operation was part of Operation Lone Star (OLS), which was initiated by Texas Governor Abbott as a statewide initiative to curtail undocumented individuals and illegal narcotics from entering the country. Agent Garcia and Captain Nava both testified that the state officers were there solely to enforce state laws and were required to call in either Border Patrol or HSI to check the immigration status of any individuals they suspected were undocumented.
At approximately 6:43 a.m. that morning, an unidentified Border Patrol agent relayed to Agent Garcia that a vehicle had been spotted picking up individuals in the area and was speeding away. Agent Garcia then contacted the El Paso police officers on the surveillance team to direct them to initiate a traffic stop of the vehicle. Shortly thereafter, Officer Sanchez saw the vehicle and pulled it over for speeding. He testified that the vehicle appeared to be a "little lowered" and had very dark-tinted windows. Officer Sanchez identified Burciaga as the driver and observed another individual in the front passenger seat and two in the back seat all sitting "normally" without any coverings over them. Burciaga appeared "nervous," so Officer Sanchez asked Burciaga to step out of the vehicle whereupon he conducted a pat-down search of Burciaga.
Next, Agent Garcia arrived on the scene, as did the Border Patrol and HSI agents from the surveillance operation. After the Border Patrol agents confirmed that the three individuals in the vehicle were undocumented noncitizens in the country illegally, the Border Patrol agents took them into custody. Agent Garcia was in charge of detaining Burciaga. He recalled that after reading Burciaga his Miranda warnings, Burciaga admitted someone had offered him an undisclosed sum of money to pick up the three individuals, who he knew were undocumented and had crossed the border illegally, and take them to a nearby motel "to avoid detection from law enforcement." Agent Garcia arrested Burciaga for violating the Texas Human Smuggling Statute.
In addition, a supplemental DPS offense report proffered by defense counsel stated that Burciaga's arrest came after he was found to have three "undocumented non-citizens who had entered the United States illegally" in his vehicle and confessed he "knowingly and willingly" picked up the noncitizens to take them to a motel; that he was aware the noncitizens had entered the country illegally; that he was transporting them to avoid detection from law enforcement; and that he did so in exchange for receiving an undisclosed amount of money.
Accordingly, there is no dispute that Burciaga is being prosecuted solely because he was transporting and concealing undocumented noncitizens who were allegedly in the country illegally.
(2) We can and should address Burciaga's as-applied challenge to the statute
Despite the undisputed evidence that Burciaga is being prosecuted solely for transporting and concealing undocumented noncitizens who were allegedly in the U.S. illegally, the majority opinion concludes that we may not address Burciaga's pretrial claim that his prosecution is preempted by federal law.
In support of its position, the majority opinion primarily relies on the Court of Criminal Appeals' holding in Lykos for the proposition that an as-applied challenge to a statute "cannot be properly raised by a pretrial motion," and must instead be "brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner." See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.4 (Tex. Crim. App. 2006) (noting that because "a contention that a statute is unconstitutional as applied . . . requires a recourse to evidence, it cannot be properly raised by a pretrial motion to quash the charging instrument")). In Lykos, however, the defendant-who was charged with capital murder and facing the possibility of the death penalty-filed a pretrial motion seeking to declare the capital murder sentencing scheme unconstitutional as applied to his case; he argued the statutory scheme "creates a constitutionally unacceptable risk of convicting and sentencing an innocent person to death." Id. at 906, 910. The Court of Criminal Appeals, however, concluded that such a challenge was premature, as the defendant had neither been convicted of murder nor sentenced to death. Id. at 910-911. As the court explained, the issue of whether the death penalty was unconstitutional as applied to the defendant's case was "an entirely hypothetical issue," which the court was not authorized to entertain. Id. at 911-12. In other words, the defendant was in effect asking for an "advisory ruling in a case that has not been litigated to any final resolution. Id.
Here, in contrast, Burciaga's claim that he is being prosecuted under a state statute that is preempted by federal law is concrete and in the present. It is true that the court in Lykos made a sweeping statement to the effect that "there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the 'as applied' constitutionality of a state penal or criminal procedural statute," and that a "trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment." Id. at 919. But the high court has since retracted that statement, recognizing that although it had previously "said that as-applied challenges are not cognizable before trial," it has "allow[ed] certain types of claims to be raised by pretrial habeas because the rights underlying those claims would be effectively undermined if not vindicated before trial." Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016).
In Perry, the court went on to explain that although it had stated in prior cases "that pretrial resolution is not available when factual development is necessary" to resolve an as-applied constitutional challenge, those cases "did not involve constitutional rights (like double jeopardy) that include a right to avoid trial." Id. at 899. In doing so, it expressly cited to its prior holding in Lykos, which as set forth above, did not involve a challenge of the type that would allow the defendant to avoid trial. Id. at 899 &n. 80.
As the majority opinion points out, the court in Perry expressly "recognized" three categories of claims that a defendant could bring prior to trial in the context of an as-applied constitutional challenge-double jeopardy claims, claims involving bail, and claims involving the separation of powers-all three of which involved "a constitutional right that includes the right to avoid trial by litigating the issue before trial." Id. at 895-96, 899. But contrary to the majority's opinion, the court in Perry did not hold that these three "recognized exceptions" were the only ones that could be raised prior to trial. Instead, it recognized that the focal point in determining the cognizability of a pretrial claim is whether the claim involves a constitutional right to avoid a trial. Id. at 895-96.
I believe that Burciaga's claim is consistent with Perry, in that if he proves his State prosecution is barred by the doctrine of federal preemption, he has the right to avoid the trial at hand. For it is well-established that if a state law is preempted by federal law, it is "without effect." See Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003) (citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (holding that under the "constitutional command" of the Supremacy Clause, "all conflicting state provisions [are] without effect")); see also BIC Pen Corp. v. Carter, 346 S.W.3d 533, 537 (Tex. 2011) ("A state law that conflicts with federal law is preempted and has no effect."). Accordingly, if the Texas Human Smuggling Statute provision is preempted as applied to Burciaga's case, it is "without effect." It would then follow that the State is without authority to prosecute him under that statute. In other words, if Burciaga is to be prosecuted for this alleged criminal act, it should not be under state law in the state court system. It would therefore be an unnecessary waste of judicial resources to allow the State to go forward with its prosecution only to have Burciaga raise the issue either during or after trial.
With regard to the development of evidence, contrary to its prior position in Lykos where it held that a trial court could not hold an evidentiary hearing to resolve an as-applied constitutional challenge prior to trial, the Court of Criminal Appeals in Perry expressly recognized that such a hearing was permitted to develop the necessary facts to resolve the defendant's claim; it noted that in other cases, it has "relied upon pretrial factual development to resolve, pretrial, claims that involve a constitutional right that includes a right to avoid trial, like double jeopardy." Perry, 483 S.W.3d at 899 (citing Ex parte Coleman, 940 S.W.2d 96, 97-98 (Tex. Crim. App. 1996) (considering testimony from prosecutor that the prior case and the pending case involved theft of the same items)).
The court recognized the same principle in Hill, pointing out that Article 28.01 of the Texas Code of Criminal Procedure gives a trial court the discretion to hold a pretrial evidentiary hearing to resolve a motion to dismiss or quash an indictment based on a constitutional challenge to the State's prosecution. State v. Hill, 499 S.W.3d 853, 867 (Tex. Crim. App. 2016). In Hill, the defendant filed a pretrial motion to quash an indictment based on his claim that the State was violating his constitutional rights by vindictively prosecuting him. Id. at 855. The trial court held an evidentiary hearing on the issue and granted the motion. Id. at 855-63. The State appealed, arguing the trial court lacked the authority to conduct an evidentiary hearing on the issue prior to trial. Id. at 866. But the Court of Criminal Appeals disagreed, holding that a trial court has the authority to conduct a pretrial evidentiary hearing "on preliminary matters that can, and should be, resolved expeditiously." Id. at 866-67. And, as the court in Hill recognized, because the goal of a motion to quash an indictment is to prevent "unnecessary trials," it "would make little sense" to require a defendant "to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed." Id. at 867-68 (quoting Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) (en banc)). Here too, I believe it would make little, if any sense, to require Burciaga to wait until after he goes to trial to raise the issue of whether federal preemption bars his prosecution under the Texas Human Smuggling Statute.
Article 28.01 provides that a trial court "may set any criminal case for a pre-trial hearing before it is set for trial upon its merits" to determine any matters based on the "[p]leadings of the defendant," any "[s]pecial pleas," and any "[e]xceptions to the form or substance of the indictment or information." Tex. Code Crim. Pro. Ann. art. 28.01, § 1 (2)(3)(4)
We note that our sister court has recognized that to the extent Lykos held that a trial court could not hold an evidentiary hearing prior to trial to resolve a motion to quash an indictment, that holding was abrogated sub silentio by Hill. See Enard v. State, 513 S.W.3d 206, 214, n.6 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd).
Unlike the circumstances in Flores, where our sister court refused to consider the pretrial as-applied challenge to the statute, here we have a developed record before us with undisputed facts that Burciaga is being prosecuted under the Texas Human Smuggling Statute solely for his conduct in concealing and transporting undocumented noncitizens who are allegedly in the U.S. illegally, and for no other reason. See cf State v. Flores, 679 S.W.3d at 243-44 (refusing to consider a similar as-applied challenge to the Texas Human Smuggling Statute where the record was not fully developed, as the State had declined to present any evidence at the hearing). Id. at 244. Absent evidence to determine whether the statute was being unconstitutionally applied to the defendant, the court in Flores would not speculate as to the "evidence the State would present at trial to support its allegations." Id. at 244; see generally London v. State, 490 S.W.3d 503, 507-08 (Tex. Crim. App. 2016) (recognizing that because of the need for a fully developed record, a trial court is "generally" not able to resolve an as-applied challenge to the constitutionality of a statute prior to trial).
In Burciaga's case, however, the State has made it abundantly clear why it is prosecuting Burciaga, offering no alternative theories of prosecution. In its appellate briefing addressing Burciaga's other constitutional challenges, the State again makes it clear that its theory of prosecution is based solely on the allegation that Burciaga was transporting undocumented noncitizens. Addressing Burciaga's vagueness challenge, the State argues the statute was not vague as applied to his case because his "captured conduct" in transporting undocumented noncitizens fits squarely within the Texas Human Smuggling Statute's "proscriptions." Similarly, in addressing Burciaga's Fourth Amendment challenge, the State contends the arresting officers had "sufficient probable cause" to arrest Burciaga for violating the Texas Human Smuggling Statute based on his admissions at the scene that he had "knowledge that he was transporting undocumented persons" in his vehicle and that he was being paid to do so.
In sum, because we have an evidentiary record before us that allows us to determine the State's theory of prosecution, i.e., that Burciaga violated the Texas Human Smuggling Statute by concealing and transporting undocumented noncitizens who were allegedly in the country illegally, we are able to and we should at this juncture determine whether the doctrine of federal preemption bars Burciaga's prosecution. Accordingly, I turn to the merits of Burciaga's claim.
(3) The doctrine of federal preemption in the immigration context
There are three broad categories in which a state law may be preempted by federal law in the immigration context: "(1) if it regulates immigration-i.e., if it is essentially a determination of who should or should not be admitted into the country; (2) if the clear and manifest purpose of Congress was to oust state power in the area of regulation (referred to as field-preemption); or (3) if it is an obstacle to the accomplishment of the purposes of Congress (referred to as conflictpreemption)." See Flores, 679 S.W.3d at 243 (citing DeCanas v. Bica, 424 U.S. 351, 355 (1976)). I agree with the State that the Texas Human Smuggling Statute provision at issue is not preempted by federal law on the first basis because it does not directly regulate immigration, i.e., it does not determine who should or should not be admitted into the country.
Under the field-preemption doctrine, "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Arizona, 567 U.S. at 399. Congress may expressly state its determination to have exclusive authority in a particular field when enacting legislation, or it may do so impliedly when the federal law's "scope indicates that Congress intended federal law or regulations to occupy the field exclusively." Mills v. Warner Lambert Co., 157 S.W.3d 424, 426-27 (Tex. 2005) (citing Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001)). In other words, Congress's "intent to displace state law altogether can be inferred from a framework of regulation so pervasive . . . that Congress left no room for the States to supplement it or where there is a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Arizona, 567 U.S. at 399 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). In determining the extent to which Congress intended to preempt state law, we are "guided by two cornerstones." Wyeth v. Levine, 555 U.S. 555, 565 (2009). First, "the purpose of Congress is the ultimate touchstone in every pre-emption case." Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Second, we presume "that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 565; Arizona, 567 U.S. at 400 (recognizing same).
Conflict-preemption can occur when a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000); see also Mills, 157 S.W.3d at 426-27 (recognizing that conflict preemption may occur when a "state law obstructs accomplishing and executing Congress' full purposes and objectives"). What may be considered a "sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Crosby, 530 U.S. at 373.
As explained below, I conclude that the provision of the Texas Human Smuggling Statute at issue is at least field-preempted as applied to Burciaga's prosecution. Because I conclude that it is field preempted as applied, I do not reach the conflict-preemption analysis.
However, some of the same reasoning applies to both field preemption and conflict preemption.
(4) The Texas Human Smuggling Statute is at least field-preempted as applied to Burciaga's case
In determining whether the Texas Human Smuggling Statute is field-preempted, we first look to the broad sweep of the INA and its purposes. The INA is an "extensive and complex" scheme adopted by Congress to regulate immigration and "alien" status. Arizona, 567 U.S. at 398. The INA not only regulates who may and may not enter the country, but it regulates the conduct of individuals-regardless of their immigration status-who engage in certain actions with respect to aliens, such as § 1324, which in its current form, is a "comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens." Georgia Latino All. for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012). The type of conduct Congress has deemed criminal in this regard has expanded over the years, demonstrating Congress's intent to assert its authority over virtually all types of conduct relating to the transportation and harboring of undocumented aliens.
In addition to the offenses listed in § 1324, the INA also prohibits third parties from bringing an unlawful alien into the country, from employing an "unauthorized alien," and from importing an alien for an "improper purpose." See 8 U.S.C.A. § 1323; 1324a; 1328.
Prior to 1917, the INA only made criminal the "bringing in or landing" of undocumented aliens into the United States, but in 1917, Congress additionally proscribed the harboring and concealing of undocumented aliens. See United States v. Sanchez-Vargas, 878 F.2d 1163, 1168 (9th Cir. 1989). And in 1952, Congress extended its reach even further by criminalizing the transportation and movement of aliens who are unlawfully in the country, and making it an offense to encourage or induce the entry of any such aliens. Id. Additionally, the INA has made it an offense to either engage in a conspiracy to commit any of the proscribed acts or to aid and abet in their commission.
See also William G. Phelps. Validity, construction, and application of §274(a)(1)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. §132(a)(1)(A)(iii), making it unlawful to harbor or conceal illegal aliens, 137 A.L.R. Fed. 255 (Originally published in 1997).
It is a criminal offense if a person:
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien; (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law; (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or (v)(I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts.8 U.S.C.A. § 1324 (a) (1)(A)(i-v).
Section 1324 of the INA not only criminalizes virtually any act relating to the transportation and harboring of aliens, but it also contains a comprehensive penalty scheme providing for differing penalties depending on various factors, such as whether the defendant engaged in the conduct for pecuniary gain and whether bodily harm or death occurred during the commission of the offense, and further provides for the seizure and forfeiture of any vehicle involved in the commission of an offense. 8 U.S.C.A. § 1324 (a)(1)(B)(i-iv), (b)(1). Congress even included a provision calling for the creation of an "outreach program" to educate the public on the penalties "for bringing in and harboring aliens in violation of this section." Id. at (e). Significantly, § 1324 contains evidentiary rules governing the prosecution of such crimes. Specifically, § 1324(b)(3) contains a detailed list of the type of evidence that can be considered as "prima facie evidence" in determining whether a violation has occurred, and subsection (d) provides for the admission of videotaped evidence in court proceedings in certain circumstances. Id. at (b)(3), (d).
While Congress through § 1324(c) permits state and local law enforcement to arrest an individual who is violating the INA's criminal provisions, § 1329 provides that causes arising under these provisions are to be prosecuted by federal authorities in federal court. See 8 U.S.C.A. § 1324 (c); § 1329; see also Flores, 679 S.W.3d at 246 (recognizing that although § 1324(c) authorizes local law enforcement to make arrests for violations of immigration law, "the federal courts maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute"); Georgia Latino All., 691 F.3d at 1263-64 (recognizing that although section 1324(c) authorizes local law enforcement to make arrests for violations of immigration law, "the federal courts maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute" under § 1329). Section 1329 further provides that "[n]o suit or proceeding for a violation of any of the provisions of this subchapter shall be settled, compromised, or discontinued without the consent of the court in which it is pending." 8 U.S.C.A. § 1329. The comprehensive regulations governing the prosecution of cases involving the concealment and transportation of aliens who are illegally in this country say much about the Congress's concern in this field.
In contrast, in DeCanas v. Bica, 424 U.S. 351, 360-61 (1976), the U.S. Supreme Court held that because Congress had not yet adopted any regulations governing the hiring of "illegal aliens," the employment of aliens was at best, only a "peripheral concern" of the INA, and that, in turn, Congress had "left room for the State's to regulate in the field." See Kansas v. Garcia, 589 U.S. 191, 195 (2020) (explaining its prior ruling in DeCanas). However, once Congress enacted provisions in the Immigration Reform and Control Act of 1986 (IRCA) penalizing employers for knowingly employing unauthorized workers and requiring employers to verify prospective employees' employment authorization statuses, the Court recognized that this prohibited the states from regulating the same conduct. See Arizona, 567 U.S. at 393-94 (holding that a state ordinance penalizing a violation of the alien registration requirements was preempted by IRCA); see also Lozano v. City of Hazleton, 724 F.3d 297, 303, 313 (3d Cir. 2013) (holding that a city ordinance making it unlawful for any business entity to knowingly employ a person without work authorization was both field-preempted and conflict-preempted by IRCA). As the Supreme Court has recognized, by enacting these IRCA provisions, Congress "made combating the employment of illegal aliens in the United States central to '[t]he policy of immigration law.'" Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147-48 (2002) (quoting INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194, and n. 8 (1991)).
IRCA is currently found at 8 U.S.C. § 1324a.
Similarly, I conclude that by enacting a comprehensive framework for penalizing smuggling undocumented noncitizens in the country illegally, Congress made combating such central to its immigration policies. See Georgia Latino All. for Human Rights, 691 F.3d at 1264 (given the comprehensive nature of Congress's regulations "criminalizing the acts undertaken by aliens and those who assist them in coming to, or remaining within, the United States . . . the federal government has clearly expressed more than a 'peripheral concern' with the entry, movement, and residence of aliens within the United States"). In other words, one can reasonably infer from the comprehensive nature of Congress's regulations in this field that Congress intended for the prosecution of individuals found transporting and harboring aliens unlawfully in the country to remain in the hands of federal authorities to ensure the uniform enforcement of its regulations.
While I do not reach the question of conflict-preemption, as the United States Supreme Court has recognized, although a state may wish to address illegal immigration problems by enacting laws or policies that supplement the INA-or even appear to be "complementary" to the INA-doing so "undermine[s]" the federal government's ability to regulate in the area and causes the federal government to lose "control over enforcement"; that in turn "detract[s]
To hold otherwise would give state prosecutors "the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration enforcement priorities." See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1027 (9th Cir. 2013) ("By allowing state prosecution of the same activities in state court, Arizona has conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration enforcement priorities."). In effect, this would place the nation's immigration policies-which have traditionally been the exclusive province of the federal government-in the hands of state officials, giving each of the 50 states the ability to intrude into this federally dominated field in virtually any manner they might see fit. See United States v. South Carolina, 720 F.3d 518, 531-32 (4th Cir. 2013) (recognizing that a state's enactment of statutes criminalizing the transportation and concealment of noncitizens in the country illegally "create[s] an obstacle to the smooth functioning of federal immigration law, improperly place[s] in the hands of state officials the nation's immigration policy, and strip[s] federal officials of the authority and discretion necessary in managing foreign affairs."); Valle del Sol Inc., 732 F.3d at 1027 (citing from the integrated scheme of regulation created by Congress." Arizona v. United States, 567 U.S. 387, 402 (2012) (recognizing that a state statute may still conflict with federal law even though they share the "same goals" or a "common end"); see also Crosby v. National Foreign Trade Council, 530 U.S. 363, 379 (2000) (state statute may still conflict with federal law even though they share the "same goals" or a "common end"). Indeed, there are several differences in how a Texas prosecutor may handle a human smuggling case under the Texas statute and how federal prosecutors are required to handle such cases under the INA. For example, under the INA, a federal prosecutor may not settle or compromise a smuggling case without the permission of the court. 8 U.S.C. § 1329. However, the Texas Human Smuggling Statute allows the State's prosecutor to certify in writing that a defendant "has provided significant cooperation to the state or law enforcement," which automatically lowers the range of punishment with no requirement for court approval. Tex. Pen. Code Ann. § 20.05(b-1). In addition, unlike the INA, the Texas statute provides an affirmative defense or allows for a reduction in punishment when the defendant and the individual being smuggled are related, depending on the degree of the parties' relationship. Id. at b-2. Finally, we note that the Texas Human Smuggling Statute provides for an entirely different penalty scheme than the INA, which creates a further conflict between the two statutes and constitutes a "further intrusion upon the federal scheme." See Arizona, 567 U.S. at 40203 (state law conflicted with federal law in alien registration where the state law imposed a "framework of sanctions" that differed from the federal law) (citing Wisconsin Dept. of Industry, Labor and human Relations v. Gould Inc., 475 U.S. 282, 286 (1986) ("[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity" (internal quotation marks omitted)); see also Georgia Latino All. for Human Rights, 691 F.3d at 1263-67 (holding that a state statute providing different penalties for transporting and concealing noncitizens in the country illegally conflicted with the INA, as it added a layer of "additional penalties atop federal law"). Georgia Latino All. for Human Rights, 691 F.3d 1266) (recognizing that given the "federal primacy in the field of enforcing prohibitions on the transportation, harboring, and inducement of unlawfully present aliens, the prospect of fifty individual attempts to regulate immigration-related matters cautions against permitting states to intrude into this area of dominant federal concern").
I would therefore join the numerous courts that have held that the INA's comprehensive and carefully crafted regulations criminalizing the transportation and concealment of "illegal aliens" leave no room for the states to regulate in this field, and that state statutes criminalizing the same conduct are therefore, at a minimum, field-preempted by the INA. See, e.g., Georgia Latino All. for Human Rights, 691 F.3d at 1263 (holding that a state law creating the offense of "transporting or moving an illegal alien" was preempted by the INA, given the comprehensive nature of its penalty provisions); Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524, 530 (5th Cir. 2013) (holding that a state law criminalizing the harboring of undocumented individuals was preempted by the criminal provisions in the INA); South Carolina, 720 F.3d at 530-31 (holding that state laws making it a felony to "transport, move or attempt to transport or conceal, harbor or shelter a person with intent to further that person's unlawful entry into the United States or to help that person avoid apprehension or detection" were field-preempted by federal law due to the "vast array of federal laws and regulations" on the same subject, leaving no room for the States to supplement them); Valle del Sol Inc, 732 F.3d at 1024 (holding that a state law which attempted to regulate the "transportation and/or harboring of unauthorized aliens" was preempted by the INA, which prohibits "a nearly identical set of activities"); Fuentes-Espinoza, 408 P.3d at 452 (holding that a state statute making it a crime for any person who "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise" was preempted by the criminal provisions in the INA).
The State in its briefing cites one case in which an Arizona appellate court held that a state statute making it an offense for a person to transport an individual that the person has reason to know is not lawfully in the country was not preempted by federal law. State v. Flores, 188 P.3d 706 (Ariz.Ct.App. 2008). In that case, the court held that the state statute was not field-preempted by the INA because there was no "specific indication in either the wording or the legislative history of the INA . . . that Congress intended to preclude even harmonious state regulation touching on aliens in general ...." Id. at 711 (citing DeCanas v. Bica, 424 U.S. 351, 358 (1976)). And although that Arizona appellate court recognized that the INA penalizes the same conduct as the state statute, it found that the statute was not conflict-preempted based on the general proposition that "the same act may offend the laws of both the State and the federal government and may be prosecuted and punished by each." Id. (citing Abbate v. United States, 359 U.S. 187, 194-95 (1959)). The Arizona court's ruling in Flores, however, was made without the benefit of the U.S. Supreme Court's more recent ruling in Arizona, in which the Supreme Court clarified that (1) Congress's intent to dominate a field can be found not only in its specific provisions but can also be "inferred" when Congress has created a pervasive framework of regulations in a particular area, and (2) when Congress has occupied an entire field, "even complementary state regulation is impermissible." Arizona v. United States, 567 U.S. 387, 399, 401 (2012). Because the Arizona court in did not conduct an analysis of whether the INA's comprehensive scheme criminalizing the transportation and concealment of undocumented noncitizens in the U.S. illegally impliedly demonstrated Congress's intent to occupy the field, we do not find it helpful to our analysis.
I also find it significant that although federal courts have held, since as early as 2012, that Congress intended to preempt states from criminalizing the transportation and harboring of aliens unlawfully in the country, Congress has not chosen to react to those holdings by amending the statute to clarify that it had a contrary intent. See generally Tapia v. Gonzales, 430 F.3d 997, 1001 (9th Cir. 2005) (recognizing that Congress reacted to Supreme Court's decision's interpreting provisions in the Aliens and Nationality Act by amending its provisions to clarify its intent); United States v. Schwartz, 924 F.2d 410, 417 (2d Cir. 1991) (recognizing that Congress reacted to the Supreme Court's decision interpreting a fraud statute by amending it to clarify its meaning).
Although the aforementioned cases involve state statutes that directly penalize the transportation and concealment of undocumented aliens who are in the country illegally-and are therefore facially preempted-I find them equally applicable to situations, such as here, where the State seeks to apply a statute to penalize this same conduct. Accordingly, because the undisputed evidence in Burciaga's case demonstrates that the State is attempting to apply the Texas Human Smuggling Statute to prosecute Burciaga for his conduct in transporting and concealing undocumented noncitizens from law enforcement, I would conclude that the statute is preempted by the INA as applied to his prosecution.
C. Conclusion
Concluding that the Texas Human Smuggling Statute is preempted by the INA as applied to Burciaga's prosecution is not meant to suggest that the State cannot assist or cooperate with federal authorities in conducting surveillance operations, such as the one in Burciaga's case, to detect INA violations. To the contrary, the State is free to assist and cooperate with federal authorities, and to arrest individuals suspected of engaging in such violations. But what I believe the states may not do is intrude on the federal government's prosecutorial role as the State is attempting to do here.
Accordingly, I would affirm the trial court's order quashing Burciaga's indictment.