Texas Penal Code 20.05 – Smuggling of Persons

Attorney Trey Porter
Trey Porter

Texas Penal Code 20.05 – Smuggling of Persons

WHAT IS SMUGGLING OF PERSONS IN TEXAS?

The Texas human smuggling statute, entitled “smuggling of persons,” broadly criminalizes concealing or transporting another by any means to elude police detection. The law further prohibits harboring others so they can “remain in this country in violation of federal law,” i.e., protecting illegal immigrants.

Texas Penal Code 20.05 - Smuggling of Persons

WHAT IS THE SMUGGLING OF PERSONS LAW IN TEXAS?

Tex. Penal Code § 20.05. SMUGGLING OF PERSONS.

(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

(B) flee from a person the actor knows is a peace officer or special investigator attempting to lawfully arrest or detain the actor;

(2) encourages or induces a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection; or

(3) assists, guides, or directs two or more individuals to enter or remain on agricultural land without the effective consent of the owner.

(b) An offense under this section is a felony of the third degree, except that the offense is:

(1) a felony of the second degree if:

(A) the actor commits the offense in a manner that creates a substantial likelihood that the smuggled individual will suffer serious bodily injury or death;

(B) the smuggled individual is a child younger than 18 years of age at the time of the offense;

(C) the offense was committed with the intent to obtain a pecuniary benefit;

(D) during the commission of the offense the actor, another party to the offense, or an individual assisted, guided, or directed by the actor knowingly possessed a firearm; or

(E) the actor commits the offense under Subsection (a)(1)(B); or

(2) a felony of the first degree if:

(A) it is shown on the trial of the offense that, as a direct result of the commission of the offense, the smuggled individual became a victim of sexual assault, or aggravated sexual assault; or

(B) the smuggled individual suffered serious bodily injury or death.

(c) It is an affirmative defense to prosecution of an offense under this section, other than an offense punishable under Subsection (b)(1)(A) or (b)(2), that the actor is related to the smuggled individual within the second degree of consanguinity or, at the time of the offense, within the second degree of affinity.

(d) 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.

WHAT IS THE PENALTY CLASS FOR SMUGGLING OF PERSONS IN TEXAS?

Smuggling by concealing or harboring a person, or by guiding two or more people onto agricultural land, is a third degree felony, punishable by two to ten years in prison. 

Smuggling of persons becomes a second degree felony, punishable by two to 20 years in prison, if:

  • the smuggled individual was exposed to the risk of serious bodily injury or death;
  • the smuggled individual is under 18;
  • the person intended to smuggle another for monetary gain;
  • anyone involved possessed a firearm; or
  • the person fled from police while smuggling an individual.

Smuggling of persons is a first degree felony, punishable by five to 99 years or life in prison, if the smuggled individual suffered serious bodily injury or death, or became a victim of sexual assault or aggravated sexual assault as a result of the smuggling.

WHAT IS THE PUNISHMENT RANGE FOR SMUGGLING OF PERSONS IN TEXAS?

The punishment range for smuggling of persons depends on the severity of the conduct, which dictates the penalty classification.

  • Third degree felony: two to ten years in prison, maximum fine of $10,000.
  • Second degree felony: two to 20 years in prison, maximum fine of $10,000.
  • First degree felony: five to 99 years or life in prison, maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR SMUGGLING OF PERSONS IN TEXAS?

A person charged with human smuggling may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period of up to ten years. 

WHAT ARE THE DEFENSES TO SMUGGLING OF PERSONS IN TEXAS?

The statute authorizes an affirmative defense for a person accused of human smuggling, unless the smuggled individual died, suffered serious bodily injury, was substantially likely to die or suffer serious bodily injury, or became a victim of sexual assault. Otherwise, an accused may raise the affirmative defense that he or she is related to the smuggled individual within the second degree of consanguinity or affinity.

WHAT IS THE STATUTE OF LIMITATIONS FOR SMUGGLING OF PERSONS IN TEXAS?

The limitation period for smuggling of persons, whether categorized as a first degree, second degree, or third degree felony, is three years.

SMUGGLING OF PERSONS IN TEXAS

The human smuggling law prohibits hiding or moving another person to avoid police detection. In 2015, the statute was amended to specifically criminalize harboring illegal immigrants, which has been upheld as constitutional.

TEXAS SMUGGLING OF PERSONS COURT CASES

The case law regarding smuggling of persons in Texas explains the amendment specific to illegal immigrants.

  • In Cruz v. Abbott, a group of landlords and other providers of shelters for illegal aliens sued Texas Governor Abbott seeking to enjoin enforcement of the human smuggling law, claiming it violated the Supremacy, Equal Protection, and Due Process Clauses of the U.S. Constitution.The Fifth Circuit dismissed proceedings, holding the plaintiffs were not at risk of prosecution, because the law requires proof that the person knowingly hid another from authorities. Merely providing shelter or housing to illegal immigrants, without an intent to deceive, does not violate the statute.
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