Engaging in Organized Criminal Activity: Texas Penal Code §71.02

The Texas Engaging in Organized Criminal Activity law, otherwise known as the Organized Crime law, is a Texas offense that does not really describe a different kind of criminal activity, but instead increases the severity of the penalty for committing (or conspiring to commit) certain offenses (the underlying offense) if those offenses were committed while a member of a gang or other criminal group known as a “combination.”

Central to the Engaging in Organized Criminal Activity offense is what constitutes a criminal organization. There are three types of criminal organizations described: (1) a “criminal street gang” (2) a “combination” and (3), beginning in 2023, “foreign terrorist organizations.”

In 2023, the legislature also added several more offenses to the list of crimes that can constitute “organized criminal activity” and added a penalty enhancement.

The Texas legislature codified this criminal offense in Texas Penal Code Section 71.02. The 2023 update took effect on September 1, 2023.

In 2019, the legislature added Penal Code Section 16.02 (Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications) to the list of offenses that may underlie an Engaging in Organized Criminal Activity prosecution.

Many larger district attorney offices have specialized prosecutors for Engaging in Organized Criminal Activity cases. The attorneys who prosecute this offense often belong to an Organized Crime Unit in the district attorney’s office.

If the state’s attorneys can prove the organized crime element of this offense, then the penalty for the underlying offense is generally one degree greater than it would be without the organized crime designation.

The Penal Code classifies the Texas Engaging in Organized Criminal Activity law under Title 11 “Organized Crime,” Chapter 71 “Organized Crime.” Learn more about the Texas offense of Engaging in Organized Criminal Activity below.

What is the current Texas law about Engaging in Organized Criminal Activity?

The current Texas law defines the offense of Engaging in Organized Criminal Activity in Penal Code Section §71.02 as follows:^[1]

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang or foreign terrorist organization, the person commits or conspires to commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or disabled individual, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;

(2) any gambling offense punishable as a Class A misdemeanor;

(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;

(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;

(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug:

(A) through forgery, fraud, misrepresentation, or deception; or

(B) with the intent to deliver the controlled substance or dangerous drug;

(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;

(5-b) [the HB 6 Version]^[2] unlawful possession with intent to deliver a controlled substance listed in Penalty Group 1-B under Section 481.1022, Health and Safety Code;

(5-b) [the HB 4635 Version]^[3] any unlawful possession with intent to deliver a controlled substance or dangerous drug;

(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;

(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;

(8) any felony offense under Chapter 32;

(9) any offense under Chapter 36;

(10) any offense under Chapter 34, 35, or 35A;

(11) any offense under Section 37.11(a);

(12) any offense under Chapter 20A;

(13) any offense under Section 37.10;

(14) any offense under Section 38.06, 38.07, 38.09, or 38.11;

(15) any offense under Section 42.10;

(16) any offense under Section 46.06(a)(1) or 46.14;

(17) any offense under Section 20.05, 20.06, or 20.07; [Operation of Stash House]

(18) any offense under Section 16.02;

(19) [the HB 1442 Version]^[4] any offense punishable under Section 42.03(d) or (e); [Obstructing Highway or Other Passageway with the “reckless driving exhibition” enhancement]

(19) [the SB 224 Version]^[5] an offense under Section 28.03 that is punishable under Subsection (b)(4)(E) of that section; [vehicles damaged by catalytic converter theft]

(20) [the SB 224 Version] an offense under Section 31.21 that is punishable under Subsection (d) of that section; [the state jail felony version of Unauthorized Possession of a Catalytic Converter] or

(20) [the HB 1442 Version] any offense classified as a felony under the Tax Code; or

(21) [the HB 1442 Version] any offense under Section 545.420, Transportation Code. [racing on a highway]

(21) [the SB 224 Version] any offense classified as a felony under the Tax Code.

Amendments effective in 2019

In 2019, the Texas legislature amended this law by adding Penal Code Section 16.02 (Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications) to the list of offenses that qualified as an underlying offense to Engaging in Organizing Crime.^[6] This was codified into the Penal Code at §71.02(a)(18) and is reflected in the list above. This change was effective as of September 2019 for offenses committed on or after September 1, 2019.^[7]

Amendments effective in 2023

In 2023, the legislature added several new offenses to the list of offenses that qualified as an underlying offense. These new offenses include (1) Criminal Mischief when the property damage was a car as a result of catalytic converter theft, (2) the state jail felony version of Unauthorized Possession of a Catalytic Converter, (3) “any unlawful possession with intent to deliver a controlled substance or dangerous drug,” (4) Operation of Stash House, (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug with the intent to deliver the controlled substance or dangerous drug,^[8] (6) Obstructing Highway or Other Passageway with the “reckless driving exhibition” enhancement, and (7) racing on a highway.

The 2023 amendments also included adding “foreign terrorist organizations” to the types of covered organizations.^[9] The legislature also added a deadly weapon enhancement that pushes the penalty classification level one level higher.^[10]

What is a “criminal street gang“?

A criminal street gang is defined as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.”^[11]

What is a “combination“?

A “combination” is defined as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm’s-length relationship in illicit distribution operations.”^[12]

What does “conspire” mean?

A conspiracy is essentially an agreement among two or more people regarding some kind of criminal activity. If two people get together and agree that they will commit a robbery tomorrow, they can be convicted of Conspiracy to Commit Robbery even if they never actually do the crime. However, a conspiracy requires some kind of “overt act” in furtherance of the conspiracy. This overt act does not have to be a criminal act, it just has to further an object of the conspiracy. So if the same two people who agreed to rob someone immediately forget about their conversation, laugh it off, and go about their lives as they did before the agreement, they cannot be convicted of a conspiracy. If, however, one of them buys a gun, and that purchase was part of the plan, then they can be convicted of the conspiracy.

“Conspires to commit” is specifically defined in the context of the Texas crime of Engaging in Organized Criminal Activity to mean that “a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”^[13] It also specifies that “an agreement constituting conspiring to commit may be inferred from the acts of the parties.” This means that even if the state’s attorney’s don’t bring evidence of a verbal or written agreement, they are allowed to try to convince a jury that based on your actions, there must have been one.

What is the renunciation defense?

The “Renunciation Defense” to Engaging in Organized Criminal Activity is an affirmative defense that requires the defendant to show that “under circumstances manifesting a voluntary and complete renunciation of the actor’s criminal objective, the actor withdrew from the combination before commission of an offense listed in Section 71.02(a) and took further affirmative action that prevented the commission of the offense.”^[14]

What is the statute of limitation for Engaging in Organized Criminal Activity in Texas?

The limitation period for Engaging in Organized Criminal Activity is the same as that of the most serious offense that is the object of the organized criminal activity.^[15]

What is the penalty for a Texas Engaging in Organized Criminal Activity offense?

The penalty for Engaging in Organized Criminal Activity (The Organized Crime Law) depends on the underlying offense. In general, the penalty is typically one degree greater than what the penalty for the underlying offense would be.^[16] For instance, if the penalty for the underlying offense is a third degree felony, then the penalty for a conviction for Engaging in Organized Criminal Activity with the same underlying offense would be a second degree felony.

Effective September 1, 2023, if you used or exhibited a deadly weapon during the commission of one or more of the underlying offenses, then the penalty grade is one additional category higher.^[17]

Under certain circumstances, a conviction for Engaging in Organized Criminal Activity can trigger a mandatory life without parole if the underlying offense is an Aggravated Sexual Assault.^[18] For offenses occurring on or after September 1, 2015, there is a 30-year minimum if the underlying offense is Continuous Smuggling of Persons and the victim suffered a sexual assault or died.^[19] If the underlying offense is any other first degree felony, the punishment is life or a term of 15 to 99 years.^[20] Class A misdemeanors are pushed up to state jail felonies.^[21] Conspiracy to commit the underlying offense is punishable at the same level as the underlying offense.^[22]

Can you get probation for Engaging in Organized Criminal Activity in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Engaging in Organized Criminal Activity, and judges are also allowed to accept deferred adjudication plea deals.^[23]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[24] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[25]

What level of crime is Engaging in Organized Criminal Activity in Texas?

The Penal Code classification of the punishment for Engaging in Organized Criminal Activity ranges from a Class B misdemeanor to a first degree felony with minimum prison time, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §71.02^2. HB 6, 88th Texas Legislature^3. HB 4635, 88th Texas Legislature, Section 5^4. HB 1442, 88th Texas Legislature, Section 3^5. SB 224, 88th Texas Legislature, Section 2.05^6. HB 869, 86th Texas Legislature, Section 1^7. HB 869, 86th Texas Legislature, Sections 2 & 3^8. SB 1900, 88th Texas Legislature, Section 19^9. SB 1900, 88th Texas Legislature, Section 19^10. SB 1900, 88th Texas Legislature, Section 19^11. Texas Penal Code §71.01(d)^12 Texas Penal Code §71.01(a)^13. Texas Penal Code §71.01(b)^14. Texas Penal Code §71.02(d) –

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.

^15. Code of Criminal Procedure 12.03(b)^16. Texas Penal Code §71.02(b)^17. Texas Penal Code §71.02(e), as enacted by SB 1900, 88th Legislature, Section 19^18. Texas Penal Code §71.02(b)(1)^19. Texas Penal Code §71.02(b)(2). This penalty enhancement was created by H.B. 11, 84th Legislature, Sections 11 (with the effective date provisions in Sections 20 & 22).^20. Texas Penal Code §71.02(b)(3)^21. Texas Penal Code §71.02(b)^22. Texas Penal Code §71.02(c)^23. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^24. Art. 42A.053(c), Texas Code of Criminal Procedure^25. Art. 42A.054(b), Texas Code of Criminal Procedure