The Texas Smuggling of Persons law prohibits knowingly using any kind of vehicle to transport people that the driver intends to conceal from law enforcement or with the intent to flee from law enforcement attempting to lawfully arrest or detain the actor.
FAQs about the
Smuggling of Persons law in Texas
- What is the current Texas law about Smuggling of Persons?
- What is the penalty for a Texas Smuggling of Persons offense?
- How can the state attorneys prove intent to conceal?
- How can the state attorneys prove intent to flee?
- What does second degree affinity mean?
- What does second degree consanguinity mean?
- What is a pecuniary benefit?
- What is the statute of limitations for Smuggling of Persons in Texas?
- Can you get probation for Smuggling of Persons in Texas?
- What level of crime is Smuggling of Persons in Texas?
In addition, the law prohibits encouraging someone to enter or remain in the USA in violation of federal law by concealing that person from detection, as well as assisting two or more individuals to enter or remain on agricultural land without the consent of the owner. The Legislature codified this criminal offense in Texas Penal Code Section 20.05.
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The Texas Smuggling of Persons law was not updated by the Legislature in its 2023 regular session, but it was updated in a third special session in 2023, effective February 6, 2024, by increasing the minimum term of imprisonment to ten years, except under certain circumstances. The law was not updated in 2025.
The offense of Smuggling of Persons can easily be confused with the offense of Trafficking of Persons. However, the offenses focus on different conduct. Smuggling of Persons generally focuses on transporting, concealing, harboring, guiding, or otherwise assisting people under the circumstances described in Texas Penal Code §20.05. In attorney Paul Saputo’s experience, Smuggling of Persons prosecutions most often involves individuals who are voluntarily being smuggled because the individuals wish to hide from law enforcement. The individuals being smuggled may want to hide from law enforcement because they are attempting to enter or remain in the United States in violation of federal immigration law. On the other hand, Trafficking of Persons generally focuses on trafficking a person for forced labor or services or certain forms of sexual conduct such as Prostitution. As a result, a person may voluntarily participate in conduct that results in a Smuggling of Persons charge, while Trafficking of Persons commonly involves exploitation of the alleged victim.
However, the state can charge a driver with Smuggling of Persons in addition to other charges if someone alleges that the driver used force against the person being smuggled. For example, if a person agreed to be smuggled but then alleges that the driver restrained them in some way, state’s attorneys may consider adding other charges against a driver in addition to Smuggling of Persons under Chapter 20 of the Texas Penal Code. These other charges can include Kidnapping or Unlawful Restraint.
The Penal Code classifies the Texas Smuggling of Persons law under Title 5 “Offenses Against The Person,” Chapter 20 “Kidnapping, Unlawful Restraint, and Smuggling of Persons.” Learn more about the Texas offense of Smuggling of Persons below.
What is the current Texas law about Smuggling of Persons?
Texas Penal Code §20.05 currently defines Smuggling of Persons as follows:[1]
(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, as defined by Section 22.011, or aggravated sexual assault, as defined by Section 22.021; 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.
Attorney Paul Saputo’s analysis
Subsection (a) describes the acts that constitute a Smuggling of Persons charge. Subsection (b) talks about the punishment for this offense. Subsection (c) outlines circumstances that allow a person to bring an affirmative defense (an affirmative defense requires the defendant to prove facts that provide a defense to criminal liability even if the state can otherwise establish the elements of the offense) against the charge of Smuggling of Persons in cases where the driver is related to the passengers being transported by blood or marriage.
What is the penalty for a Texas Smuggling of Persons offense?
Smuggling of Persons is a third degree felony offense, but there are factors that can enhance the classification of punishment. In addition, new minimum terms of confinement apply for offenses occurring after February 6, 2024, except under certain circumstances (see the footnote for details).[2] In addition, it’s important to note that because the Legislature has amended this law multiple times since 2015, the penalty provisions that apply to older offenses vary depending on the alleged offense date.
Currently, the state can charge the offense as a second degree felony by alleging any of the following:[3]
(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)
The state can charge the offense as a first degree felony by alleging 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 by alleging that the smuggled individual suffered serious bodily injury or death.[4]
Amendments effective in 2024
The Legislature significantly increased the penalties for violations of this offense, effective February 6, 2024. These 2024 amendments enacted a minimum term of confinement of ten years for violations of this offense, except under certain conditions.[5] Prior to this date, violations of this offense were third degree felonies punishable by a maximum of ten years in prison. Now, ten years is generally the minimum term of confinement. As recently as 2015, this offense was only a state jail felony.[6] The Legislature has been ramping up the penalty provisions consistently since 2015.
In addition, the 2024 amendments increased the minimum term in prison for all second degree and first degree felony violations of this offense to ten years.[7]
How can the state attorneys prove intent to conceal?
The state can prove intent to conceal in many different ways. For instance, the intent can be found if a driver is holding passengers in a place where they are not likely to be seated under normal circumstances such as under seats, in the trunk of a car, or in the back of an 18-wheeler. The state can also use as evidence that the driver had an intent to conceal if law enforcement asked the driver if there were other people in the vehicle and the driver said “no.”
How can the state attorneys prove intent to flee?
The state’s attorneys can try to prove intent to flee through circumstantial evidence. For example, prosecutors may rely on evidence that a driver continued driving, accelerated, changed direction, or otherwise attempted to evade law enforcement after an officer signaled the driver to stop. Texas Transportation Code §545.421 separately prohibits a driver from willfully failing or refusing to stop, fleeing, or attempting to elude a pursuing police vehicle after receiving the required visual or audible signal.[8] Depending on the circumstances, prosecutors may use that conduct as evidence that the driver intended to flee from a person the driver knew was a peace officer or special investigator attempting to lawfully arrest or detain the driver.
Attorney Paul Saputo notes that he has seen cases where police relied on much less than erratic driving in making an arrest decision. For instance, police often cite a vehicle’s mere presence in an area of known smuggling routes, a driver’s stated intentions, or even a lack of explanation as to a destination after the officer has initiated the stop. Even though scant evidence might not be sufficient to obtain a prosecution, police only need probable cause to make an arrest, and the police get to make that determination for themselves at the moment they are making an arrest.
What does second degree affinity mean?
Second degree affinity means that there is a relationship between two people because of a family member’s marriage. Second degree affinity would include people such as a brother-in-law, sister-in-law, spouse’s grandchild or grandparent, or a grandchild or grandparent’s spouse. Section 20.05(c) of the Smuggling of Persons offense states that an affirmative defense is available to a person charged with the Smuggling of Persons offense if the individual allegedly being smuggled is “within the second degree of affinity” to the driver at the time of the offense. The language “at the time of the offense” means that an affirmative defense is available even if the marriage ends after you were arrested.
What does second degree consanguinity mean?
Consanguinity means that two people are blood related. Section 20.05(c) of the Smuggling of Persons offense states that a driver has an affirmative defense if the driver is related to the individual allegedly being smuggled by a “second degree of consanguinity.” A person is within the second degree of consanguinity to another if there is a relationship such as a child/parent relationship, brother/sister relationship, or grandchild/grandparent relationship.
What is a pecuniary benefit?
The punishment for Smuggling of Persons can be a second degree felony with a minimum term of ten years if the state’s attorneys show that a driver was committing the offense “for pecuniary benefit.” Pecuniary benefit means for profit. Thus, a driver smuggling people for a pecuniary benefit is being paid to smuggle people.
What is the statute of limitations for Smuggling of Persons in Texas?
The statute of limitations for Smuggling of Persons offenses in Texas is three years.[9]
Can you get probation for Smuggling of Persons in Texas?
Yes. Probation is generally available for Smuggling of Persons in Texas. The Texas Code of Criminal Procedure allows both judges and juries to grant community supervision, commonly called probation, for Smuggling of Persons, and judges may also grant deferred adjudication community supervision.[10]
However, important restrictions apply. Neither a judge nor a jury may grant community supervision if the imposed term of imprisonment exceeds 10 years.[11] Additionally, a judge 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.[12]
What level of crime is Smuggling of Persons in Texas?
The Penal Code classifies the punishment for Smuggling of Persons as a first, second, or third degree felony, depending on the circumstances, all with a minimum term of confinement of ten years, except under certain circumstances.
Learn more about the penalty range for this offense in the section above.
Legal References compiled by attorney Paul Saputo:
(b-1) If at the punishment stage of the trial or at the time of entering a plea agreement for an offense under this section punishable as a felony of the third degree, the attorney representing the state in the prosecution of the offense certifies to the court in writing that the actor has provided significant cooperation to the state or law enforcement, and describes the manner of cooperation, the minimum term of imprisonment is five years. The certification is confidential and shall be sealed by the court, except that the certification may be accessed by the office of the attorney representing the state, the attorney representing the defendant, and the court. For purposes of this subsection, “significant cooperation” includes:
(1) testifying in a trial on behalf of the state against other parties to the offense;
(2) providing relevant information regarding the case and other parties to the offense;
(3) providing information that furthers the investigation of the charged offense and any other parties involved; or
(4) providing information that aids law enforcement.
(b-2) At the punishment stage of a trial of an offense under this section, other than an offense punishable under Subsection (b)(1)(A), (C), (D), or (E) or (b)(2), the actor may raise the issue as to whether the actor is related to the smuggled individual in the third degree of consanguinity or, at the time of the offense, in the third degree of affinity. If the actor proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the third degree with a minimum term of imprisonment of five years.
^3. Texas Penal Code §20.05(b)(1)^4. Texas Penal Code §20.05(b)(2)^5. Texas Penal Code §20.05(b), as amended by SB 4, 88th Texas Legislature (SS-3), Section 3^6. See HB 11, 84th Texas Legislature (RS), Section 14^7. Texas Penal Code §20.05(b)(1)&(b)(2), as amended by SB 4, 88th Texas Legislature (SS-3), Section 3^8. Texas Transportation Code §545.421^9. See Code of Criminal Procedure §12.01(11)^10. See Chapter 42A, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^11. See Art. 42A.053(c), Texas Code of Criminal Procedure (judge-ordered community supervision); Art. 42A.056(1) (jury-recommended community supervision)^12. Art. 42A.054(b), Texas Code of Criminal Procedure
