The Texas offense of Smuggling of Persons makes illegal using a vehicle to transport people with the intent to conceal or flee from law enforcement. At the base level, the offense is a State Jail Felony. However, if the transport was in exchange for money, as if usually the case, it becomes a Third Degree Felony, punishable by 2-10 years in prison. Law enforcement can charge multiple people with the same offense if they believe co-defendants were taking turns driving.
What is Smuggling of Persons?
Smuggling of Persons can be confused with Human Trafficking. The charges differ mainly in that human trafficking involves transporting people against their will, often for forced labor or prostitution. By contrast, Smuggling of Persons involves the transport of willing participants who simply want transport while being concealed from police. The most common scenario involves people without legal status in the country who wish to go from a border state like Arizona to a commercial hub, like New York. Police may effectuate a stop for a trivial reason, then in the process of that stop uncover that there are a suspiciously high number of people in the car, that they are not able to identify each other, are possibly hiding in floorboards or the truck, and in some cases admit to paying or receiving payment in exchange for the transport.
Never Confess Elements of the Offense
Because of the nature of the offense, it is crucial not to admit to police any incriminating details. For example, never admit to police that you do not know others in the vehicle or that there is payment involved. Confessing to elements of the offense in this way allows the police to easily make the charge for Smuggling of Persons, whereas without any confession, it is likely a skilled defense attorney familiar with Smuggling of Persons charges such as Walker Fults could argue that the people were simply driving across the country, free of any intent to flee or conceal others from law enforcement.
Call Law Office of Walker Fults now at (214) 838-0557 for a free consultation.
What is current Texas law on Smuggling of Persons?
The current Texas law defines the offense of Smuggling of Persons in Penal Code Section §20.05 as follows:
(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 (which bars conviction) against the charge of Smuggling of Persons. Subsection (e) allows the prosecutor to add additional charges. Because there are so many exceptions 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 or charged.
How can intent to conceal be proved?
Intent to conceal can be found if a driver is holding passengers in a place where they are not likely to be found, such as in floorboards or in the trunk of a vehicle. If police asked the driver if there were any additional passengers and the driver answered no, then intent to conceal may also be inferred.
How can intent to flee be proved?
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 and second degree consanguinity 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. Consanguinity means that two people are blood related. 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. 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.
Contact Experienced Texas Criminal Defense Attorney Walker Fults
If you or a loved one has been charged with Smuggling of Persons or a related offense, contact Law Office of Walker Fults right away at (214) 838-0557. Walker Fults has handled multiple cases of Smuggling of Persons and is very familiar with the potential criminal and immigration consequences of such a charge.
