Governor Abbott launched Operation Lone Star in March 2021 to respond to a rise in illegal immigration. In May, Governor Abbott issued a disaster declaration that now covers 48 counties, mostly counties along or near the border. The declaration directed the Department of Public Safety to “use available resources to enforce all applicable federal and state laws to prevent the criminal activity along the border, including criminal trespassing, smuggling, and human trafficking, and to assist Texas counties in their efforts to address those criminal activities.” The following month, the Governor opened Texas Department of Criminal Justice (TDCJ) facilities for detaining arrested persons under Operation Lone Star.
Smuggling of persons in Texas is the state version of the federal alien smuggling law. Specifically, Tex. Pen. Code § 20.05 makes it a third-degree felony to smuggle people. But it can become a second or first-degree felony if anyone is hurt or killed during the crime.
Examples of smuggling of persons include:
- Picking up aliens near the border and driving them to San Antonio, Houston, or Dallas with the intent to hide them from police;
- Operating a stash house; or
- Entering into a deal with others to drive aliens from the border to major cities.
- Furthermore, driving aliens from the border to major cities is the most common way police arrest someone on smuggling of immigrants charges in Texas.
To explain, cartels need drivers to move people from the border to major cities. So the cartels advertise on social media. The ads offer “fast cash,” “easy money,” and “clean routes.” This attracts drivers from all over Texas to drive to the border to pick up people.
Nonetheless, police know about these ads. And they know the routes smugglers use to move people. So they scout these roads and look for telltale signs of human smuggling. From there, police find an excuse to stop the car and arrest the driver for smuggling of persons.
When you contact Smuggling of Persons Attorney Charles Johnson promptly, he can advise you regarding what steps to take to reduce the chances of a jail or prison term. Experienced Criminal Defense Attorney Charles Johnson has the time and resources to assist you so that you go home with your family, rather than to jail or prison. Human Smuggling Lawyer Charles Johnson will travel anywhere within the State of Texas to represent you on your Human Smuggling case(s) and his #1 Goal is to get your case dismissed, if at all possible.
Human smuggling has historically been a crime that the Federal Government has prosecuted in America. In March of 2021, Governor Greg Abbott implemented the political theater experiment known as Operation Lone Star in the State of Texas. Operation Lone Star involves the collaboration of several federal, state, and local agencies, including the U.S. Department of Homeland Security, the U.S. Border Patrol, the Texas Department of Public Safety, and local law enforcement agencies. The stated goal of the operation is to disrupt and dismantle human smuggling organizations and to rescue victims of human trafficking.
It has, in practice, mostly resulted in men being arrested and jailed for misdemeanor criminal trespassing charges in counties bordering Mexico. However, the large amount of military, Department of Public Safety, and various other law enforcement agencies has led to an uptick in arrests for Human Smuggling in border and central counties across Texas.
Texas Law on Human Smuggling
For decades Texas anti-smuggling laws prohibited 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 became more severe if the state proved 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 were 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. Much of the old law survived into 2021 but a few changes were made that reflects the vigor with which the state intends to prosecute human smuggling.
In October of 2021, Governor Abbott signed a number of amendments into law, effectively changing the human smuggling statute as codified in section 20 of the Texas Penal Code. It now reads as follows:
Sec. 20.05. SMUGGLING OF PERSONS.
(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.
A number of changes become apparent when comparing the old law to the amendments signed into law in 2021. First, the crime was reclassified and enhanced from a state jail felony to a third degree felony, which carries with it between 2 to 10 years in prison, along with a $10,000 fine. The offense then gets enhanced to a second-degree felony if the smuggled individual is put in a circumstance in which he or she could be killed or suffer great bodily harm, if the smuggled person is a child, or if the smuggler is carrying a firearm. A second-degree felony conviction carries a two- to 20-year prison sentence and a $10,000 fine. Human smuggling becomes a first-degree felony if the smuggled person is killed or suffers sexual assault, aggravated sexual assault, or great bodily harm. In Texas, a felony of the first degree carries a prison sentence of five years to life in prison. Not satisfied with these enhanced punishment ranges, Gov. Abbot has recently pushed for mandatory 5 year sentences for human smuggling offenses categorized as third-degree felonies.
The new law also makes it easier for law enforcement to convict someone of the crime because it no longer requires prosecutors to prove the smuggling was conducted in exchange for money or other pecuniary interest. Furthermore, the amended law gives the state prosecutor specific discretionary powers on how to charge. The law states that “[i]f 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.”
There is something provided for the criminal defense. A statutorily defined affirmative defense is included where family is involved. Texas Penal Code §20.05(c) states: 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.
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. Second degree affinity on the other hand means that there is a relationship between two people because of a family member’s marriage, not blood. 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. No other affirmative defenses exist to the crime of human smuggling other than the ones carved out by these two relationships.
Defenses for Human Smuggling Charges
As a practical matter, these cases will be difficult to prove. The “knowing” element of the offense especially. As a matter of course, the State will have to prove that the person traveling with the suspected illegal entrant knew that persons immigration status. As immigration status is not something that is openly shared with others and not widely known, it remains to be seen how the State intends to prove this element of the offense.
The state can attempt to prove intent to conceal in different ways. For instance, 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. But for cases where the driver was simply driving with another individual, who is a migrant, in the car, the State will have a hard time proving that the defendant was intentionally concealing someone from law enforcement.
The state’s attorneys can attempt to prove intent to flee in various 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. This is also, and more easily, felony Evading Arrest under Texas Penal Code § 38.04. The State can potentially charge a defendant with both of these charges.
Human smuggling is a problem in Texas. Operation Lone Star is the way Governor Abbott is currently attempting to solve it. The additional enhanced punishment for the offense of Human Smuggling and the increase in the amount it is being charged does not make the cases any easier to prove. The government is touting the massive amount of arrests and charges filed in conjunction with the Operation, but they are not advertising a massive number of convictions. When it comes to criminal charges, the convictions are what matter, and those are difficult to come by, especially with proper criminal defense.
Texas Gov. Greg Abbott launched Operation Lone Star to ramp up security along the Texas-Mexico border and the state legislature handed him nearly $3 billion in order for him to do just that. As a result DPS and National Guard units have increased their apprehension and interdiction of those suspected of human smuggling. Smuggling someone into the United States is a grave crime that can bring with it hefty fines and jail time.
If you have been accused of and charged with human smuggling, consider consulting with an experienced attorney with knowledge of and experience in human smuggling cases. The Charles Johnson Law Firm has first-hand experience defending those who have been accused of human smuggling. Hiring the best Human Smuggling Attorney available can help ensure your rights are protected and that your best interests are always put first.
Serving all Texas Counties including Atascosa, Chambers, Ellis, Goliad, Hardin, Hopkins, Jeff Davis, Johnson, Kerr, Kimble, Live Oak, Orange, Parker, Presidio, Terrell, Texas, United States, Tyler, Val Verde, Wilson, Wise and Zavala Counties.
Smuggling of Persons Attorney Charles Johnson can be reached directly 24 hours a day, 7 days a week for a free consultation.
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