What is smuggling of persons in Texas?

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.

Of major interest, § 20.05 outlaws different ways of smuggling people. First, it is a crime to use a car, boat, airplane, or other vehicle to intentionally:

  1. Hide a person from police; or
  2. Flee from police.

Stated differently, it is against the law to drive to the border to pick up people with the intent to hide them from police.

Next, § 20.05 makes it a crime to knowingly:

  1. Encourage people to enter the country;
  2. Hide, harbor, or protect people from being caught by police; and
  3. Help two or more people to enter or remain on farm land without the owner’s permission.

However, § 20.05 is controversial. This is because § 20.05 cloned the federal law on alien smuggling.

Consequently, Texas and federal law overlap and conflict. As a result, these two laws can lead to opposite results. In state court, you can get at least two years in jail. In contrast, the average jail term in federal court is 15 months.

This raises an important question: “Can Texas prosecute immigration crimes in state court?” We will answer this question below and show you how Tex. Pen. Code § 20.05 works.

What are examples of smuggling of persons in Texas?

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.

What are facts that can increase the jail time for smuggling of persons in Texas?

You may get extra jail time if:

  1. You get into a high speed chase with police
  2. You hide people in the trunk of your car;
  3. The person smuggled is under 18 years old;
  4. You smuggle people for money;
  5. You carry a gun during the crime or have a gun in the car;
  6. Someone raped the smuggled person during the crime; or
  7. The smuggled person is badly hurt or killed during the crime.

What are the penalties for smuggling of persons in Texas?

Tex. Pen. CodeFelony TypeAggravating FactsPenaltyFine
Third DegreeNone.2-10 years in TDC.

*Probation Possible.
Up to $10,000.00.
§20.05(b)(1)Second Degree1. Creates a substantial risk that the smuggled person will suffer serious bodily injury or death;

2. The smuggled person is a child under 18 years of age at the time of the offense;

3. The offense was committed with the intent to obtain a pecuniary benefit;

4. The defendant or another party to the crime possessed a firearm; or

5. The smuggler flees from police during the offense.

2-20 years in TDC.

*Probation Possible.
Up to $10,000.00.
§20.05(b)(2)First Degree1. As a direct result of the offense, the smuggled individual became a victim of sexual assault or aggravated sexual assault; or

2. The smuggled individual suffered serious bodily injury or death.
5-99 years or life in TDC.

* Probation Possible.
Up to $10,000.00.

Table: Smuggling of Persons Jail Time.

The table above shows the penalties for Smuggling of Persons in Texas. Specifically, Smuggling of Persons is a third degree felony. However, the penalties go up if certain facts are present.

To illustrate, if you smuggle a minor or possess a gun during the crime, then it turns into a second degree felony. Likewise, if someone rapes or kills an immigrant during the crime, then Smuggling of Persons turns into a first degree offense.

But at the same time, Texas law allows a defendant to get probation for Smuggling of Persons in Texas. In short, the penalties for Tex. Penal Code 20.05 range from possible probation to life in jail.

What happens after I am arrested for smuggling of persons in Texas?

If you are arrested under Operation Lone Star for smuggling people, then police will hold you at either the Briscoe Unit in Dilley, Texas or at the Segovia Unit in Edinburg, Texas. This is where Texas is holding human smugglers after they are arrested but before they bond out.

Also, many of these arrests are happening in rural counties at or near the border. The end result is that you may have to go to court in a county that is hundreds of miles away from your hometown.

To make matters worse, many of these counties are setting high bond amounts. In some cases, bonds can be $35,000 to $50,000 per count. This will cause you to pay large cash amounts to bond out of jail. This is especially true if you are charged with more than one count.

Nevertheless, if this happens to you, then you have options. Your attorney can ask the judge to lower the bond amount. He can do this by filing a writ of habeas corpus. The judge will then decide if the bond should be lowered and by how much.

On the other hand, if you cannot afford any bond amount and are stuck in jail, then you can ask the judge to lower your bond after 90 days from the date of your arrest. This happens if the state is not ready for trial within 90 days. If this is the case, then the judge can either lower your bond or release you on a PR bond.

Does Operation Lone Star conflict with Federal alien smuggling laws?

Yes. This is also why Texas’ Smuggling of Persons law is likely unconstitutional. This is because it allows state prosecutors to file alien smuggling charges in state court rather than in federal court. This creates two major problems. Courts call them field and conflict preemption.

However, to see how these problems come up, we first need to look at how Operation Lone began. After that, we can look at the problems this law is causing.

Operation Lone Star and Human Smuggling in Texas.

On March 6, 2021, Texas Governor Greg Abbott launched “Operation Lone Star.” This is the State of Texas’ response to the high number of illegal border crossings along the Texas-Mexico border. In effect, Operation Lone Star is a political act.

Notably, Operation Lone Star ordered Texas DPS troopers to start making alien-smuggling arrests along the border. But instead of filing the cases in federal court, state officials are filing them in state court. Because of this, DPS troopers have become border-patrol agents. And this is where the conflict happens.

Transporting aliens is a core federal crime. Congress made it clear by its actions that it wanted the DOJ alone to decide when to file these types charges. Most important of all, 8 USC § 1329 orders DOJ to file these cases in federal court and not in state court.

In contrast, Operation Lone Star turns this system upside down. Under Texas law, state prosecutors are now filing these cases in state court. As a result, Texas law conflicts with the framework of 8 U.S.C. § 1324. And the most dramatic point is that the jail time you get will turn largely on whether you are arrested on state or federal human-smuggling charges.

So can these two laws coexist? Probably not. To see why, we need to look at the Supremacy Clause of the U.S. Constitution. This will show us how courts deal with the problems of field and conflict preemption.

Supremacy Clause vs. Operation Lone Star.

Article VI of the U.S. Constitution says that in some cases, federal law is the “supreme law of the land.” This gives Congress the power to stop states from passing laws that conflict with federal law. And as we talked about earlier, smuggling aliens is a key area that Congress controls.

For this reason, Operation Lone Star goes too far. It gives state officials the power to enforce their own alien smuggling crimes. Worse yet, the penalties for smuggling of persons in Texas conflict with the penalties for alien-smuggling crimes under 8 USC § 1324. Comparing these two laws shows us how field and conflict preemption works.

Field Preemption and Tex. Penal Code § 20.05.

Alienage is the most dramatic point in human smuggling crimes. Under 8 U.S.C.§ 1324, the government must show the defendant transported a person who is not a U.S. Citizen. And they must show the defendant moved the alien knowing that the alien is in the country without permission.

On the other hand, under Tex. Penal Code § 20.05, the state only has to show the defendant intended to hide a “person.” Further, Tex. Penal Code § 1.07 (38) defines a person in part as an “individual.” Similarly, Tex. Penal Code § 1.07(26) defines an “individual” as “a human being who is alive, including an unborn child at every stage of [the pregnancy].”

Therefore, under Texas law, a “person” includes both U.S. citizens and noncitizens. This allows state officials to file human smuggling charges in Texas state courts instead of federal court. This also raises a field preemption problem for the State of Texas.

In particular, Congress decided that the federal government will be the only ones who can regulate immigration law. They did this by passing laws that completely regulate the following areas.

First, they regulate who can come into the country. Second, they regulate how a noncitizen can become a U.S. citizen. And third, they regulate the penalties for immigration crimes including human smuggling.

In sum, Congress controls the field of human smuggling. Consequently, human smuggling is a federal crime and not a state crime. This is how Texas’ Smuggling of Persons law is field preempted by the Supremacy Clause.

Conflict preemption and Tex. Penal Code § 20.05.

Equally important, the penalties for Tex. Pen. Code § 20.05 conflict with those for 8 USC § 1324. This causes the related conflict preemption issue.

As an example, if a person smuggles a minor, he will face between 0-10 years in jail under 8 USC § 1324. On the other hand, he will face between 2-20 years in jail under Tex. Pen. Code. § 20.05. This means Texas law carries a higher penalty than federal law for the same facts.

Another key difference is the gun factor. If a smuggler possess a gun during the crime, then he will face between 0-10 years in jail under 8 USC § 1324. Conversely, he will face between 2-20 years in jail under Tex. Pen. Code. § 20.05. This is true even if the smuggler never used the gun during the crime.

As an aside, under 8 USC § 1324, having a gun or transporting a minor will not increase your top penalty, which is ten years. But it will increase your guideline range within those ten years. Stated another way, federal law takes into account these plus factors by raising your jail term but not your max penalty range.

All in all, these are just some of the ways Tex. Pen. Code § 20.05 conflicts and overlaps with 8 USC § 1324. This conflict and overlap is fatal to Tex. Pen. Code § 20.05. This also shows why you should never plead guilty to a Smuggling of Persons charge in Texas without filing a preemption motion in state court.

The bottom line on Tex. Pen. Code § 20.05.

These examples shows why Operation Lone Star is probably unconstitutional. The main point is that the State of Texas is trying to deal with a large number of border crossings along the border.

But Tex. Penal Code § 20.05 goes too far. It pushes the legal limits for smuggling charges in Texas. Simply stated, it is not the State of Texas’ place to prosecute alien smugglers. Unfortunately, this is the problem courts have not yet resolved.

Normally, Congress and the states can pass laws that make the same facts a crime. Drug dealing is a classic example. If you get caught with a large amount of meth, fentanyl, or heroin, then you can face both state and federal drug charges.

Gun crimes are another example. You can face both state and federal gun charges for the same facts. As an example, you can face either state or federal gun charges for being a felon-in-possession of a gun. These types of drug and gun charges happen all the time.

But the same thing is not true for immigration law. That’s because Congress makes one set of immigration laws that apply to all the states in the country. And that is the conflict you need to look at if police arrest you for smuggling of persons in Texas.

Smuggling of Immigrants Charges in Texas.

For these reasons, if DPS or state police arrest you for smuggling of immigrants charges in Texas, you should file a motion to dismiss the charge based on the Supremacy Clause of the U.S. Constitution. This will require the judge to decide if Texas can file alien smuggling charges in state court. Most important of all, you can file this motion even if police have strong proof you were smuggling people.

Human Smuggling Defense Attorney.

Questions about your smuggling case? Call 210-733-7575 for a free case consult.