Texas Penal Code 20A.02 – Trafficking of Persons

WHAT IS TRAFFICKING OF PERSONS IN TEXAS?

Texas law prohibits several forms of human trafficking, including enslaving, transporting, holding, exploiting, or otherwise using another for forced labor or sex.

• What does it mean to “traffic” someone? To “traffic” humans under Texas law means “to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.” This broad definition includes not only kidnapping a person for slave labor or sex work; it also criminalizes harboring, or holding another in a location for a specific purpose prohibited by the statute.

  The law further punishes anyone who participates in or receives a benefit from human trafficking, including labor, services, or engaging in sexual conduct with a trafficked person.

WHAT IS THE TRAFFICKING OF PERSONS LAW IN TEXAS?

Tex. Penal Code § 20A.02. TRAFFICKING OF PERSONS.

(a) A person commits an offense if the person knowingly:

(1) traffics another person with the intent that the trafficked person engage in forced labor or services;

(2) receives a benefit from participating in a venture that involves an activity described by Subdivision (1), including by receiving labor or services the person knows are forced labor or services;

(3) traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in conduct prohibited by:

(A) Section 43.02 (Prostitution);

(B) Section 43.03 (Promotion of Prostitution);

(B-1) Section 43.031 (Online Promotion of Prostitution);

(C) Section 43.04 (Aggravated Promotion of Prostitution);

(C-1) Section 43.041 (Aggravated Online Promotion of Prostitution); or

(D) Section 43.05 (Compelling Prostitution);

(4) receives a benefit from participating in a venture that involves an activity described by Subdivision (3) or engages in sexual conduct with a person trafficked in the manner described in Subdivision (3);

(5) traffics a child with the intent that the trafficked child engage in forced labor or services;

(6) receives a benefit from participating in a venture that involves an activity described by Subdivision (5), including by receiving labor or services the person knows are forced labor or services;

(7) traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by:

(A) Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual);

(B) Section 21.11 (Indecency with a Child);

(C) Section 22.011 (Sexual Assault);

(D) Section 22.021 (Aggravated Sexual Assault);

(E) Section 43.02 (Prostitution);

(E-1) Section 43.021 (Solicitation of Prostitution);

(F) Section 43.03 (Promotion of Prostitution);

(F-1) Section 43.031 (Online Promotion of Prostitution);

(G) Section 43.04 (Aggravated Promotion of Prostitution);

(G-1) Section 43.041 (Aggravated Online Promotion of Prostitution);

(H) Section 43.05 (Compelling Prostitution);

(I) Section 43.25 (Sexual Performance by a Child);

(J) Section 43.251 (Employment Harmful to Children); or

(K) Section 43.26 (Possession or Promotion of Child Pornography); or

(8) receives a benefit from participating in a venture that involves an activity described by Subdivision (7) or engages in sexual conduct with a child trafficked in the manner described in Subdivision (7).

(b) Except as otherwise provided by this subsection and Subsection (b-1), an offense under this section is a felony of the second degree. An offense under this section is a felony of the first degree if:

(1) the applicable conduct constitutes an offense under Subsection (a)(5), (6), (7), or (8), regardless of whether the actor knows the age of the child at the time of the offense;

(2) the commission of the offense results in the death of the person who is trafficked;

(3) the commission of the offense results in the death of an unborn child of the person who is trafficked; or

(4) the actor recruited, enticed, or obtained the victim of the offense from a shelter or facility operating as a residential treatment center that serves runaway youth, foster children, the homeless, or persons subjected to human trafficking, domestic violence, or sexual assault.

(b-1) An offense under this section is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 25 years if it is shown on the trial of the offense that the actor committed the offense in a location that was:

(1) on the premises of or within 1,000 feet of the premises of a school; or

(2) on premises or within 1,000 feet of premises where:

(A) an official school function was taking place; or

(B) an event sponsored or sanctioned by the University Interscholastic League was taking place.

(c) 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.

(d) If the victim of an offense under Subsection (a)(7)(A) is the same victim as a victim of an offense under Section 21.02, a defendant may not be convicted of the offense under Section 21.02 in the same criminal action as the offense under Subsection (a)(7)(A) unless the offense under Section 21.02:

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under Subsection (a)(7)(A) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a)(7)(A).

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

Trafficking of persons is categorized based on the victim’s age, the intended purpose of the trafficking, and any resulting harm.

• Human trafficking is a second degree felony, punishable by two to 20 years in prison if the person trafficked an adult for forced labor and services, or for sexual conduct.
• Trafficking of persons is a first degree felony, punishable by five to 99 years or life in prison if:
  • the trafficked person is a child under 18;
  • the trafficked person dies;
  • an unborn child of the trafficked person dies; or
  • the accused trafficked the victim from a residential treatment center serving runaway youths, foster children, homeless, or victims of human trafficking, domestic violence, or sexual assault.
• If the person commits first degree felony human trafficking on or within 1,000 feet of a school, or school function, the minimum prison sentence is increased to 25 years, with a maximum of 99 years or life.

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

The punishment range for human trafficking of adults, a second degree felony, is two to 20 years in prison, and a maximum fine of $10,000. If the trafficking is categorized as a first degree, the punishment range is five to 99 years or life in prison, and a maximum fine of $10,000. If a person is accused of committing human trafficking on or within 1,000 feet of a school or school function, the minimum punishment for a first degree felony is increased to 25 years, and a maximum sentence of 99 years or life in prison.

• Is the punishment for human trafficking, or “trafficking of persons,” enhanceable? A person charged with child sex trafficking, which is ordinarily a first degree felony that is punishable by 5 to 99 years or life in prison, may face an automatic life sentence if the person has been previously convicted of:
  • Sexual Performance by a Child;
  • Possession or Promotion of Child Pornography;
  • Trafficking of persons, if the victim is under 18, and the trafficking was for sexual purposes;
  • Obscenity, if the obscene visual material depicts a child under 18;
  • Indecency with a Child
  • Continuous Sexual Abuse of Young Child or Disabled Individual;
  • Sexual Assault;
  • Aggravated Sexual Assault;
  • Prohibited Sexual Conduct; 
  • Burglary of a habitation, if the person intended to commit one of the listed offenses above during the burglary.

WHAT ARE THE PENALTIES FOR TRAFFICKING OF PERSONS IN TEXAS?

A person charged with human trafficking is not eligible for either type of community supervision (probation or deferred adjudication).

WHAT ARE THE DEFENSES TO TRAFFICKING OF PERSONS IN TEXAS?

The statute does not provide any affirmative defenses, but one may attempt to raise any of the justification defenses.

• Is it possible to be prosecuted for trafficking one’s own children? If a person’s conduct is prohibited by the statute, there is no defense for the relationship to the victim. Parents are not immunized in scenarios such as forced labor in sweatshops, and other egregious conduct such as compelling prostitution of one’s own child, but assigning household chores will not subject a parent to criminal charges.In Ex parte Barrett, a couple was charged with continuous trafficking of children after they removed their four adopted children from school and forced them to work at the puppy mill on their property. The children were also beaten.

  The defendants challenged the constitutionality of the statute, but the appellate court upheld it as constitutional. Prohibiting this type of conduct will not interfere with ordinary parent-child relationships, and furthers the State’s legitimate interest in protecting children. Ex parte Barrett, 608 S.W.3d 80 (Tex. App.—Dallas, pet. ref’d).

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

There is no limitation period for prosecuting a person who trafficked a child for sexual purposes. If a child is trafficked for forced labor or services, the limitation period is ten years from the child’s 18th birthday. The limitation period for trafficking an adult for any purpose is ten years from the offense date.

TRAFFICKING OF PERSONS IN TEXAS

Texas law prohibiting human trafficking outlaws a broad range of conduct. The ultimate goal of the law is to protect victims—both adults and children—from being forced or coerced into sex work or slave labor.

TEXAS TRAFFICKING OF PERSONS COURT CASES

The case law regarding trafficking of persons in Texas shows the broad application of the law, and how multiple crimes may arise out of the same course of conduct.

• In Kelly v. State, the defendant was convicted of compelling prostitution, and trafficking a child for the purpose of compelling prostitution. She allowed multiple people, including M.M., a minor, to engage in prostitution in her home. She would also find men for M.M., translated for spanish-speakers, and M.M. would give the defendant a small amount of her earnings. The defendant argued on appeal that she merely provided an opportunity for M.M., a willing minor, to prostitute herself. But the appellate court affirmed, explaining the statute only requires harboring—or giving shelter—to a minor, and influencing prostitution. Kelly v. State, 453 S.W.3d 643 (Tex. App.—Waco 2015, pet. ref’d).