CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY, Plaintiffs - Appellees Cross-Appellants
STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General, Defendants - Appellants Cross-Appellees CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; THE CITY OF HOUSTON, Intervenors - Plaintiffs - Appellees Cross-Appellants EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; JO ANNE BERNAL, El Paso County Attorney in her Official Capacity; MOVE San Antonio, Plaintiffs - Appellees Cross-Appellants TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, Intervenor - Plaintiff - Appellee Cross-Appellant
STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety, Defendants - Appellants Cross-Appellees CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT; CITY OF EL PASO, Plaintiffs - Appellees Cross-Appellants CITY OF AUSTIN, Intervenor Plaintiff - Appellees Cross-Appellants
STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas, Defendants - Appellants Cross-Appellees
Appeals from the United States District Court for the Western
District of Texas
JONES and SMITH, Circuit Judges.
H. JONES, CIRCUIT JUDGE.
withdraw our prior opinion of March 13, 2018, City of El
Cenizo v. Texas, 885 F.3d 332 (5th Cir. 2018), and
substitute the following, the purpose of which is to
eliminate reference to United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en
banc), given that decision's abrogation by the Supreme
Court in Sessions v. Dimaya, 138 S.Ct. 1204
cities, counties, and local officials challenge Senate Bill 4
("SB4"), a Texas law that forbids "sanctuary
city" policies throughout the state. SB4 prohibits local
authorities from limiting their cooperation with federal
immigration enforcement, and it requires local officers to
comply with Immigration and Customs Enforcement
("ICE") detainer requests. In their pre-enforcement
lawsuit, the plaintiffs alleged a battery of constitutional
violations: (I) SB4 is preempted by federal immigration law,
(II) SB4's "endorse" prohibition violates the
First and Fourteenth Amendments, (III)SB4's ICE-detainer
mandate violates the Fourth Amendment, and (IV)SB4's
phrase "materially limits" is unconstitutionally
vague under the Fourteenth Amendment. The district court
issued a preliminary injunction, enjoining several of the
law's provisions. Texas appeals the injunction, and the
plaintiffs cross-appeal the district court's refusal to
issue a broader injunction. With one exception, SB4's
provisions do not, on their face, violate the Constitution.
For the following reasons, we uphold the statute in its
entirety except for the application of the
"endorsement" prohibition, Tex. Gov't Code
§ 752.053(a)(1), to elected officials.
Senate Bill 4
2017, the Texas Legislature enacted Senate Bill 4 to prohibit
sanctuary city policies. The law imposes duties on certain
state officials and provides civil and criminal liability for
violations of those duties. Three parts of the law are
critical to this case: (A) the immigration-enforcement
provisions, (B) the ICE-detainer mandate, and (C) the penalty
codified at Texas Government Code § 752.053(a)-(b), SB4
forbids local entities from limiting the enforcement of
federal immigration law. Subsections (a)(1) and (a)(2) of
Section 752.053 provide broad prohibitions. Under subsection
(a)(1), a local entity may not "adopt, enforce, or
endorse a policy under which [it] prohibits or materially
limits" immigration enforcement. Id. §
752.053(a)(1). After subsection (a)(1) deals with
anti-cooperation "policies, " subsection (a)(2)
further prohibits any "pattern or practice" that
similarly frustrates enforcement. Id. §
the general prohibitions in (a)(1) and (a)(2), subsection (b)
enumerates concrete examples of immigration-enforcement
activities that a local entity may not "prohibit or
materially limit." Id. § 752.053(b). These
include (b)(1) "inquiring into the immigration
status" of lawfully detained individuals, (b)(2) sharing
immigration-status information with federal agencies, and
(b)(3) "assisting or cooperating with a federal
immigration officer as reasonable or necessary, including
providing enforcement assistance." Id. §
prohibitions in Section 752.053 apply broadly to any
"local entity or campus police department."
Id. § 752.053(a)-(c). SB4 defines "local
entity" to include the governing bodies of counties and
municipalities as well as officers or employees of those
authorities, including "a sheriff, municipal police
department, municipal attorney, [ ] county attorney[, ] . . .
district attorney or criminal district attorney."
See id. § 752.051(5)(A)-(C). But SB4 excludes
hospitals, school districts, and certain community centers-as
well as officers employed by these institutions-from the
law's requirements. See id. §
codified at Texas Code of Criminal Procedure article 2.251,
SB4's ICE-detainer mandate requires law-enforcement
agencies to comply with detainer requests submitted by ICE.
An ICE detainer is a written request to state or local
officials, asking them (1) to notify the Department of
Homeland Security ("DHS") as soon as practicable
before an alien is released and (2) to maintain custody of
the alien for up to 48 hours beyond the preexisting release
date so that DHS may assume custody. As of April 2017, ICE must
make this request using Form I-247A, which must be
accompanied by a signed administrative warrant. Form I-247A
states that DHS has determined that there is probable cause
that the subject of the request is a removable alien, and ICE
officers check one of four boxes on the form to indicate the
basis for probable cause. 
ICE-detainer mandate applies whenever "[a] law
enforcement agency [ ] has custody of a person subject
to" an ICE detainer. Tex. Code Crim. Proc. art.
2.251(a). Under subsection (a), the mandate requires law
enforcement agencies to "comply with, honor, and
fulfill" ICE's requests. Id. It also
requires that the individual in custody be informed he
"is being held pursuant to" an ICE detainer.
Id. art. 2.251(a)(2).
(b) provides a lone exception to the detainer mandate: law
enforcement agencies need not comply with detainers if shown
"proof that the person is a citizen of the United States
or . . . has lawful immigration status." Id.
art. 2.251(b). Subsection (b) states that such
"proof" could include a Texas driver's license
or similar government-issued ID. Id. art. 2.251(b).
enforced through civil and criminal penalties by Texas's
Attorney General. Private citizens may file complaints with
the Attorney General, alleging by sworn statement that a
local entity is violating the enforcement provisions.
See Tex. Gov't Code § 752.055(a). Upon
determining that such a complaint is valid, the Attorney
General may file suit in state court to enforce the law.
See id. § 752.055(b). If a court finds there
has been a violation, local entities may be subject to fines
of $1, 000 to $1, 500 for a first violation and $25, 000 to
$25, 500 for subsequent ones, with each day of continuing
violation constituting a separate violation. See id.
§ 752.056(a)-(b). If the Attorney General is presented
with evidence that a public officer has violated the
enforcement provisions, SB4 requires the Attorney
General to file an enforcement action. See id.
§ 752.0565(b). Public officers found guilty of violating
the law are subject to removal from office. See id.
makes certain officials' failure to comply with SB4's
ICE-detainer provision a misdemeanor. See Tex. Penal
Code § 39.07(a)-(c). SB4 further requires Texas to
indemnify local entities against any claim arising out of
their good-faith compliance with an ICE-detainer request.
See Tex. Gov't Code § 402.0241.
SB4 could go into effect, several Texas cities, counties,
local law-enforcement and city officials, and advocacy groups
challenged the law in three consolidated actions. The
plaintiffs sought a preliminary injunction, and the district
court found the plaintiffs likely to prevail on the following
• Section 752.053(b)(3)'s assistance-cooperation
provision is field and conflict preempted by federal
• Section 752.053(a)(1)'s "endorse"
prohibition violates the First and Fourteenth Amendments
because it is overbroad, discriminates on the basis of
viewpoint, and is unconstitutionally vague;
• Section 752.053(a)(1) and (a)(2)'s
"materially limits" prohibitions are
unconstitutionally vague under the Fourteenth Amendment; and
• Article 2.251's ICE-detainer mandate violates the
these provisions, the district court nevertheless rejected
the plaintiffs' claims that SB4 was preempted more
the district court's order, Texas moved this court to
stay the injunction pending appeal. The stay panel granted
the motion in part, finding Texas likely to prevail on the
Fourth Amendment and preemption claims, and stayed the
injunction as to article 2.251's ICE-detainer mandate and
Section 752.053(b)(3)'s assistance-cooperation provision.
City of El Cenizo v. Texas, No. 17-50762, 2017 WL
4250186, at *2 (5th Cir. Sept. 25, 2017) (per curiam). The
stay panel left the injunction in place as to the
"endorse" and the "materially limits"
prohibitions, concluding that possible limiting constructions
of these terms "are best left for the time when this
court's ruling would have more finality."
Id. Texas now appeals the preliminary injunction,
and the plaintiffs cross-appeal the district court's
refusal to enjoin SB4 completely.
be entitled to a preliminary injunction, the applicants must
show (1) a substantial likelihood that they will prevail on
the merits, (2) a substantial threat that they will suffer
irreparable injury if the injunction is not granted, (3)
their substantial injury outweighs the threatened harm to the
party whom they seek to enjoin, and (4) granting the
preliminary injunction will not disserve the public
interest." Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)
(brackets and citations omitted). This court "review[s]
a preliminary injunction for abuse of discretion, reviewing
findings of fact for clear error and conclusions of law
de novo." Texans for Free Enter. v. Tex.
Ethics Comm'n, 732 F.3d 535, 537 (5th Cir. 2013)
(citations omitted). Because the issues raised by the parties
substantially overlap, we discuss the appeal and cross-appeal
the federal Constitution, "both the National and State
Governments have elements of sovereignty the other is bound
to respect." Arizona v. United States, 567 U.S.
387, 398, 132 S.Ct. 2492, 2500 (2012). Because dual
sovereignty allows for conflicts between state and federal
legislation, the Constitution's Supremacy Clause provides
that federal legislation "shall be the supreme Law of
the Land." U.S. Const. art. VI, cl. 2. Congress may
preempt state legislation "by enacting a statute
containing an express preemption provision, "
Arizona, 567 U.S. at 399, 132 S.Ct. at 2500-01, but
this case does not involve express preemption. Rather, the
plaintiffs allege two forms of implied preemption:
field preemption and conflict preemption.
preemption occurs when "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, 132 S.Ct. at 2501. Although the Supreme Court has
recognized field preemption claims, it has indicated courts
should hesitate to infer field preemption unless plaintiffs
show "that complete ouster of state power including
state power to promulgate laws not in conflict with federal
laws was 'the clear and manifest purpose of
Congress.'" De Canas v. Bica, 424 U.S. 351,
357, 96 S.Ct. 933, 937 (1976) (quoting Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83
S.Ct. 1210, 1219 (1963)); see also Villas at Parkside
Partners v. City of Farmers Branch, 726 F.3d 524, 560
(5th Cir. 2013) (en banc) (Higginson, J., specially
concurring) (noting that De Canas forecloses
sweeping field preemption claims). Analyzing the relevant
federal legislation, we conclude that the plaintiffs have not
satisfied this standard. Congress has not preempted the field
that SB4 regulates.
district court found only one provision of SB4 field
preempted. According to the district court, Section
752.053(b)(3)'s assistance-cooperation provision
impermissibly regulates the field of "immigration
enforcement, " which Congress fully preempted through
comprehensive regulation. The plaintiffs now argue that SB4
is field-preempted in its entirety because Congress occupied
the field of "federal-local cooperation in immigration
evidence that Congress has comprehensively regulated the
relevant field, the plaintiffs point to federal statutes
regulating local cooperation with immigration enforcement.
See 8 U.S.C. § 1324(c) (permitting local
officers to make arrests for crimes of immigrant smuggling,
transporting, or harboring); id. § 1252c
(authorizing local officers to make arrests to enforce
criminal reentry provisions following INS
"confirmation" of an individual's immigration
status); id. § 1103(a)(10) (authorizing local
officers to enforce immigration law if the Attorney General
has "determine[d] that an actual or imminent mass influx
of aliens . . . presents urgent circumstances");
id. §§ 1373, 1644 (requiring that state
and local jurisdictions permit their officers to send,
receive, and maintain "information regarding the
citizenship or immigration status" of individuals).
addition to these provisions, the plaintiffs rely heavily on
8 U.S.C. § 1357, which specifies immigration-officer
functions and describes circumstances under which state and
local officers can perform those functions. Under Section
1357, immigration-officer functions include the power
"to interrogate" and "to arrest" aliens
without a warrant. Id. § 1357(a)(1)-(2).
Section 1357 further provides that states and political
subdivisions can enter into written agreements with the
Federal Government, so that state and local officers can
perform immigration-officer functions. Id. §
1357(g). These "287(g)" agreements require that
local officers must be "determined by the Attorney
General to be qualified"; that they receive appropriate
training; that their powers and duties are set forth in a
written agreement; and that they are "subject to the
direction and supervision of the Attorney General."
Id. § 1357(g)(1)-(5). States and municipalities
may not be required to enter into these agreements.
Id. § 1357(g)(9).
1357 also contains a critical savings clause. Id.
§ 1357(g)(10). Because the parties' analysis focuses