2024 Smuggling of Persons in Texas Update [5-29-2024].

Texas Penal Code 20.05 is the Smuggling of Persons law police use to arrest migrant smugglers along the border with Mexico. Notably, this law makes it a crime to use a car, boat, airplane, or vehicle to hide an “individual” from police or to flee from police. Critically, the term “individual” includes migrants or aliens who enter the United States without proper papers.

On paper, this law is simple enough. It bans the act of trafficking migrants. However, in reality, this law is putting Texas at the center of the migrant crisis in America. Consequently, this puts huge pressure on police to crack down on human traffickers. And the migrant surge is also causing the Texas Legislature to raise the jail terms for first-time migrant trafficking crimes.

As a result, the human trafficking law in Texas changed considerably from 2021 to 2024. This post provides a 2024 update and shows how this law works.

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 hide people from police. But it can become a second or first-degree felony if anyone is hurt or killed during the crime.

Interestingly, § 20.05 outlaws different ways of hiding people from police. 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 United States;
  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 because it overlaps and conflicts with federal law. Normally, this would prevent the state from filing these cases in state court. But as we will see below, a Texas court made it tough to raise this overlap as a defense to a state-level migrant trafficking crime.

No Supremacy Clause Problems with Texas Human Smuggling Charges.

The Fourth Court of Appeals gave Texas the green light to go after migrant traffickers in state court. Namely, when Governor Greg Abbot started Operation Lone Star, it raised an important question: Can Texas file alien smuggling charges in state court? This is because because migrant trafficking is exclusively a federal crime.

However, in State v. Flores, 679 S.W.3d 232, 240 (Tex. App.–San Antonio 2023, pet. ref’d), the court noted that state prosecutors can file these cases in state courts because the Texas law is neutral on the immigration status of the migrants. Surprisingly, the court reasoned that Texas law bans the smuggling of people in general and not migrants in particular.

The end result is that prosecutors in the following counties can send people to jail for hiding migrants from police:

  • Edwards County (Rocksprings);
  • Kinney County (Brackettville);
  • Maverick County (Eagle Pass);
  • Uvalde County;
  • Webb County (Laredo);
  • Bexar County (San Antonio);
  • Kerr County (Kerrville) and
  • Gillespie County (Fredericksburg).

Of major interest, these counties are Ground Zero for migrant transportation crimes in Texas. And these counties are where state prosecutors are filing the most migrant transporting cases in Texas.

New 2024 Penalties for Human Smuggling in Texas.

Nevertheless, the biggest change in 2024 is that Texas raised the jail terms for migrant trafficking under SB4. If police arrest you on or after February 6, 2024, then you may be looking at a 10-year minimum jail term. This is a dramatic change to the punishment level for this crime. (If police arrested you on or after February 6, 2024, then read our post to see how SB4 works.)

To illustrate, before February 6, 2024, the minimum jail term for a third degree or second degree migrant trafficking crime was two years. Now it is ten years. In short, Texas raised the stakes for this crime to discourage people from trafficking aliens.

But it is important to remember that this law only applies to anyone arrested on or after February 6, 2024. Thus, if police arrest you before the law changed, then you will be looking at the much softer two year minimum jail term.

Who is a “person” under Texas Penal Code § 20.05? And why does this definition matter?

Alienage is the key fact in federal alien trafficking crimes. Under federal law, the prosecutor must show that the migrants are aliens who entered the country without permission. Stated differently, an alien is anyone who is not a citizen or national of the United States. On top of that, the prosecutor must show that the smuggler acted with criminal intent when he transported the alien.

In contrast, Texas’ Smuggling of Persons law makes no reference to alienage. Instead, Texas Penal Code § 1.07 (38) defines a “person” as an “individual.” Further, Texas Penal Code § 1.07 (26) defines an “individual” as “a human being who is alive, including an unborn child . . . .” Therefore, Texas’ definition of “person” is broad and includes the federal definition of “alien.” And this presents a possible defense to a Smuggling of Persons charge.

The Flores court above said Texas law is not preempted by the Supremacy Clause because under Texas law it is possible to smuggle U.S. Citizens, i.e., persons in general. For instance, if you hide someone with a warrant from police, then you may break this law. That is to say, Texas law is neutral on its face on the issue of alienage.

Yet, the court also said it is possible to raise an “as-applied” challenge to Texas Penal Code § 20.05. When you raise this type of defense, you argue that the law as applied to the facts of your case conflicts with federal law. The downside is that the only way to raise this defense is to take your case to trial. And if you lose at trial, then the judge or jury may give you extra jail time for fighting the case.

What are examples of migrant trafficking in Texas?

Examples include:

  • Picking up migrants near the border and driving them to San Antonio, Houston, or Dallas with the intent to hide them from police;
  • Operating a migrant 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 for transporting undocumented migrants 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.

However, police know about these ads. And they know the routes traffickers use to transport migrants. 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 this crime.

What are facts that can increase the jail time for migrant trafficking charges 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 transport people for money;
  5. You carry a gun during the crime or have a gun in the car;
  6. Someone raped the migrant or person during the crime;
  7. A person is badly hurt or killed during the crime; or
  8. You have a lengthy rap sheet.

What are the penalties for smuggling of persons in Texas? [For cases that happened before February 6, 2024]

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.

Note: Texas passed SB4 on November 21, 2023. SB4 raised the minimum jail time for the crime of Smuggling of Persons.

Critically, SB4 goes into effect on February 6, 2024. This means if police arrest you on or after February 6, 2024, then the new jail time will apply to your case. See our 2024 Human Smuggling Update for more information.

In contrast, the table above shows the penalties for Smuggling of Persons in Texas for arrests made before February 6, 2024.

Normally, 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 a migrant 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.

Can you get probation for Smuggling of Persons in Texas?

Yes. Probation is an option for people arrested on or before February 6, 2024. Equally important, there are some factors that will make it more likely that you will get probation. The factors are:

  • First-time migrant trafficker with no priors;
  • No one is hurt or killed during the crime;
  • No high speed chase
  • None of the smugglers have or use guns in the crime;
  • No dangerous facts like putting people in the trunk of the car; and
  • Driving small loads of people.

If all these facts are present in your case, then you have a strong chance of getting probation. But this only means that probation is possible. It is not guaranteed. The final decision will be up to the judge in your case.

What happens after I am arrested for human smuggling in Texas?

If you are arrested under Operation Lone Star for hiding migrants from police, 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.

Transporting Migrant Crimes and Defenses in Texas.

There is no magic bullet for these types of cases. In fact, many human smuggling crimes end in plea deals. But at the same time, it is possible to build a defense by asking some basic questions:

  1. Why did police stop your car, truck, or SUV?;
  2. Did they arrest you and ask you questions without reading you your Miranda rights?;
  3. Did police search your cellphone without your consent?; and
  4. How did police connect you to the migrants?

The goal of these questions is to break the case down into smaller parts. And from there you can target the weak links in the State’s case against you. Most important of all, the answers to these questions may plant the seeds of reasonable doubt with your jury.

Human Smuggling Defense Attorney Genaro R. Cortez.

Genaro R. Cortez is a migrant smuggling defense attorney in San Antonio, Texas. He handles first-time alien smuggling crimes in Del Rio, Eagle Pass, Brackettville, Rocksprings, and Fredericksburg, Texas. If you have a migrant trafficking charge pending, then call 210-733-7575 today for a free case consult.