Engaging in Organized Criminal Activity, otherwise known as the Organized Crime law, is a Texas offense described in Penal Code Chapter 71.02. The “Engaging in Organized Criminal Activity” offense 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 done 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.
ORGANIZED CRIME ATTORNEY FAQs
Have you been charged with Engaging in Organized Crime in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.
The offense of Engaging in Organized Criminal Activity is frequently prosecuted by special prosecutors in a district attorney’s office. In Dallas, the attorneys who prosecute this offense are known as the Organized Crime Unit. Central to the “Engaging in Organized Criminal Activity” is what constitutes a criminal organization. There are two types of criminal organizations described: 1) a “criminal street gang” and 2) a “combination.” I have described these in more detail below.
Criminal defense attorneys must battle not only the charge on the underlying offense, but also the organized crime designation. If the state 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.
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.” This definition is found in Section 71.01 of the Texas Penal Code.
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 some 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 goes further to say that “an agreement constituting conspiring to commit may be inferred from the acts of the parties.”
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.”1
The penalty for Engaging in Organized Criminal Activity depends on the underlying offense.2 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.
You can get years in prison for an Engaging in Organized Criminal Activity conviction. The most severe punishment is life without parole. Life without parole is only available if the underlying offense is an aggravated sexual assault. 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.3
Engaging in Organizing Crime is described as a Texas crime in Section 71.02 of the Texas Penal Code. HB 869, 86th Texas Legislature amended this law by adding Penal Code Section 16.02 to the list of offenses under subsection (a). The law is below, with additions effective in 2019 added in brackets:
(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 children, 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;
(18) [any offense under Section 16.02; or
(19)] any offense classified as a felony under the Tax Code.
1 Texas Penal Code Section 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.
2 Texas Penal Code Section 71.02(b) –
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for:
(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the defendant is 18 years of age or older and:
(A) the victim of the offense is younger than six years of age;
(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or
(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense; or
(2) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1).
3 Texas Penal Code Section 71.02(c) –
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.