PDF: Attorney General Opinion

NASHVILLE — A Tennessee attorney general’s opinion should provide a legal boost to proposed legislation cracking down on illegal immigrants arrested for felonies and repeat DUI offenses, a Chattanooga lawmaker said.

“I’m going to run the bill now,” Rep. Richard Floyd, R-Chattanooga, said. “I think it’ll provide me with a lot of help.”

The bill requires jail officials at city- or county-operated facilities to make a “reasonable effort” to determine a detainee’s legal status through such actions as examining the suspect’s personal documents.

When Rep. Floyd presented the bill earlier this month in the House Criminal Practice and Procedure Subcommittee of the House Judiciary Committee, he said questions arose about whether the bill would be constitutional.

Attorney General Robert Cooper reviewed the legislation. “It is the opinion of this Office that the proposed legislation contained in House Bill 2860 is constitutional,” he wrote in a March 14 opinion.

The bill still could face problems. Officials with the Tennessee County Commissioners Association fret the proposed legislation imposes more unfunded mandates on local governments.

“We’re already having difficulty making ends meet on a lot of our costs,” said David Connor, executive director of the commissioners group.

Hamilton County Sheriff’s Department Chief Deputy Allen Branum said he is unfamiliar with Rep. Floyd’s bill but cautioned the proposed legislation could create problems if the county has to hire new employees for processing prisoners at a jail already struggling with overcrowding.

“It’s kind of like a juggling act,” the chief said. “We got so many things in the air right now, just one of these days one of them’s going to have to hit the floor.”

Rep. Janis Sontany, D-Nashville, chairwoman of the House Criminal Practice and Procedure Subcommittee, sought the attorney general’s opinion.

She said the attorney general’s opinion does not mean the bill will pass automatically, and she noted concerns about unfunded mandates.

A legislative analysis of the bill’s potential impact on local governments estimates costs would exceed $100,000. However, the analysis notes “no reliable data are available on the number of illegal aliens in Tennessee.”

One estimate by the Pew Hispanic Center states there were 100,000 to 150,000 illegal immigrants in Tennessee in 2005. Analysts said a “significant but unquantifiable number of these persons will be jailed.”

Rep. Floyd called the legislation a “good idea,” noting that undocumented immigrants already have broken the law to enter the United States.

“This will help keep the criminals who are also illegal aliens off of our streets,” he said.

The proposed legislation states that if “reasonable efforts” to determine a detainee’s legal status are unsuccessful, verification of legal status “shall be made” within 48 hours “through a query” to appropriate federal agencies.

When determining bail, officials should presume defendants are at risk of flight if they are illegally in the United States, the proposed legislation states.

Chief Branum noted determining legal status is not always easy.

“For us to be able to enforce something like that, it just about has to (have) some type of a funding mechanism or a clearing house or something that’s kind of tied in to something we already do like NCIC.”

The National Crime Information Center is a computer database that allows law enforcement officials to check criminal histories of suspects and detainees.

Obtaining a timely response from the federal Immigration and Customs Enforcement agency is not guaranteed, Chief Branum said.

The bill is scheduled to be back in the subcommittee on April 2. Sen. Bo Watson, R-Hixson, who introduced the Senate version at the behest of Rep. Floyd, has not started moving the bill yet.