October 12, 2012, by Attorney Christian T. Souza
By Attorney Christian T. Souza on October 12, 2012 10:42 AM |

This week the Texas Court of Criminal Appeals affirmed the holding of the Texarkana Court of Appeals in a Smith County case (Tyler) that trial courts cannot impose conditions of probation that concern immigration matters. Due to the large number of non-citizens placed on probation in Texas, trial courts have increasingly imposed conditions of probation such as requiring the defendant to report by mail from Mexico, or requiring him to remain outside of the United States.

Probation conditions that touch on immigration matters are absolutely invalid, because they violate the Supremacy Clause of the United States Constitution, which says the federal government controls all international matters, such as border control. The types of orders in question would seemingly invalidate federal provisions concerning whether it would be legal for the defendant to reenter under existing or future immigration law, or under future retroactive provisions, such as an amnesty law.

Conditions of probation requiring a defendant to remain outside of the country also violate the Texas Constitution. Ever since 1876, a person cannot suffer banishment from the state just for having a criminal record.

While the normal rule is that conditions of probation have to be challenged at the time when they are imposed, the immigration-related conditions can now be attacked when the State seeks to revoke probation in order to obtain a prison sentence. The Texas Court of Criminal Appeals decided to make an exception for immigration-related conditions, since such conditions are invalid from the beginning, instead of merely being subject to challenge for violating specific constitutional rights.