The Texas Smuggling of Persons offense prohibits people from using a vehicle to transport people that the driver intends to conceal from law enforcement or with the intent to flee from law enforcement. The punishment for Smuggling of Persons becomes more severe if the state proves that the driver was transporting individuals in exchange for money or if the driver was transporting individuals in a manner that could have caused them serious injury or death. However, there are affirmative defenses available against a charge of Smuggling of Persons in cases where the driver is related to the passengers being transported by blood or marriage.

The offense of Smuggling of Persons can easily be confused with the offense of Human Trafficking. The biggest difference between the two offenses is that the offense of Smuggling of Persons 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 cross into the state illegally or are in the state illegally. Human Trafficking involves drivers who transport people with the intent to make them perform forced labor or services such as Prostitution. Still, a driver charged with the Smuggling of Persons could also be subject to other charges if any force was used against a person being smuggled. For example, if an 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. For these reasons, it is important that you hire a criminal defense lawyer as soon as possible to look for any affirmative defenses to the charges or prevent more charges from being added on.

What is current Texas law about Smuggling of Persons?

The current Texas law defines the offense of Smuggling of Persons in Penal Code Section §20.05 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.

(d) 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.

Subsection (a) describes the acts that constitute a Smuggling of Persons Charge. Subsections (b) and (c) talk about the punishment for this offense. Subsection (d) outlines circumstances that allow a person to bring an affirmative defense (an affirmative defense is a strategy that requires you to prove that, because of certain conditions, you did nothing wrong) against the charge of Smuggling of Persons. Subsection (e) allows the state’s attorneys to add additional charges. Because there are so many caveats to the Smuggling of Persons charge, it is important to contact a criminal defense attorney as soon as you know that you are under investigation.

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 found such as under seats, in the trunk of a car, or in the back of a an 18-wheeler. A state attorney can also prove 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, but it was later discovered that there were other people in the vehicle. Relatedly, the definition of “abduct” in Section 20.01(2) of the Texas Penal Code defines abducting a person as as “secretly” holding a person,^[2] so it is important to have a criminal lawyer who will prevent a charge of kidnapping from being brought against you in addition to Smuggling of Persons charge.

How can the state attorneys prove intent to flee?

The state’s attorneys can prove intent to flee many ways. One of the easiest is under §545.421 of the Texas Transportation Code. Under §545.421, a person who does not stop their vehicle when signaled to by law enforcement or attempts to drive away from law enforcement, has an intent to flee. Law enforcement can signal a driver to stop with lights, sirens or a hand gesture.

What is a pecuniary benefit?

The punishment for Smuggling of Persons can be a third degree felony 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 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(d) 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(d) 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 the punishment for Smuggling of Persons?

Smuggling of Persons is a state jail felony, but there are factors that can escalate the punishment range. If the state finds that a driver was smuggling people in exchange for money, or if the driver was smuggling people in a dangerous manner that was likely to cause injury or death, the driver is subject to being charged with a third degree felony.^[3] If the state’s attorneys believe that the acts committed by a driver allegedly smuggling people are similar to another offense under Chapter 20 of the Texas Penal Code, the state’s attorneys might bring both charges against a driver. Learn more about the range of punishment for felony offenses

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Legal References:

^1. Texas Penal Code §20.05^2. Texas Penal Code §20.01(2)(A) – “‘Abduct’ means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found.”^3. Texas Penal Code §20.05(c)