Engaging in Organized Criminal Activity, 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.”
Update: Effective as of September 1, 2019, 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. Learn more about these changes below.
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The offense of Engaging in Organized Criminal Activity is frequently prosecuted by special prosecutors in a district attorney’s office. In many larger counties, the attorneys who prosecute this offense belong to an Organized Crime Unit in the district attorney’s office. Central to the Engaging in Organized Criminal Activity offense is what constitutes a criminal organization. There are two types of criminal organizations described: 1) a “criminal street gang” and 2) a “combination.” These are described in more detail below.
To fight this offense, criminal defense attorneys must battle not only the charge on the underlying offense, but also the organized crime designation. If the state’s attorneys can prove the organized crime element, then the penalty for the underlying offense is generally one degree greater than it would be without the organized crime designation.
The current Texas law defines the offense of Engaging in Organized Criminal Activity in Penal Code Section §71.02 as follows:
(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, 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 through forgery, fraud, misrepresentation, or deception;
(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;
(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 or 20.06;
(18) any offense under Section 16.02; or
(19) any offense classified as a felony under the Tax Code.
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. 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.
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.”
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.”
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.” 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.
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.”
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. 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.
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. 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. If the underlying offense is any other first degree felony, the punishment is life or a term of 15 to 99 years. Class A misdemeanors are pushed up to state jail felonies. Conspiracy to commit the underlying offense is punishable at the same level as the underlying offense.
^1. Texas Penal Code §71.02^2. H.B. 869, 86th Texas Legislature, Section 1^3. H.B. 869, 86th Texas Legislature, Sections 2 & 3^4. Texas Penal Code §71.01(d)^5. Texas Penal Code §71.01(a)^6. Texas Penal Code §71.01(b)^7. 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.
^8. Texas Penal Code §71.02(b)^9. Texas Penal Code §71.02(b)(1)^10. 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).^11. Texas Penal Code §71.02(b)(3)^12 Texas Penal Code §71.02(b)^13. Texas Penal Code §71.02(c)