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 and show you how § 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;
  • 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 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 a child;
  4. You smuggle people for money;
  5. You carry or hold a gun during the crime;
  6. Someone raped the smuggled person during the crime; or
  7. The smuggled person is hurt badly or killed during the crime.

What are the penalties for smuggling of persons in Texas?

Tex. Pen. CodeFelony TypeAggravating FactsPenaltyFine
§20.05(b)
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.

Texas Penal Code § 20.05 is the state law on human smuggling. It is similar to 8 USC § 1324, which is the federal law on alien smuggling. But there are also important differences between these two laws.

One key difference is that 8 USC § 1324 requires the smuggled person to be an alien. Conversely, § 20.05 does not require the smuggled person to be an alien. This means that under state law it is technically possible to smuggle U.S. Citizens.

Additionally, under Texas law, a person sent to prison for smuggling of persons is eligible for parole. But a person convicted of alien smuggling in federal court is not eligible for parole. This is because parole does not exist in the federal system. Instead, that person in federal court will get a term of supervised release after he completes his jail term.

To add to that, supervised release blends the worst parts of parole and probation. It requires the defendant to serve the majority or all of the jail term in federal prison. Once the person completes the federal jail term, the judge puts him on supervised release. If the person violates the terms of supervised release, then he can go back to jail.

These are just a few of the ways Texas and federal human-smugglings laws are different and appear to conflict. Notably, these differences are red flags that indicate Tex. Penal Code § 20.05 may be unconstitutional. We will explore this idea below.

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 the Briscoe Unit in Dilley, 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 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.

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. 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?

Tex. Pen. Code § 20.05 pushes the legal limits on smuggling of immigrants charges in Texas. However, to see why, we first need to look at how Operation Lone began. After that, we can look at the problems this law is causing.

On March 6, 2021, Texas Governor Greg Abbott launched “Operation Lone Star.” This is the State of Texas’s 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. Because of this, DPS troopers have become border-patrol agents. And this is where the conflict happens.

Immigration law is a federal issue. Congress passes these laws. The Justice Department (DOJ) prosecutes these crimes. Most important of all, DOJ files these cases in federal court.

In contrast, Operation Lone Star turns this system upside down. Under Texas law, state troopers are now making alien smuggling arrests. And they are filing these cases in state court. The impact of this policy is that there are now two different criminal laws that conflict with each other. 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? The law is not clear on this point. But Operation Lone Star is perhaps unconstitutional under the Supremacy Clause of the U.S. Constitution.

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. To be sure, immigration law is a key area that Congress controls.

As a result, it appears that Operation Lone Star goes too far. It gives DPS the power to enforce its own version of federal immigration law. Worse yet, the penalties for smuggling of persons in Texas conflict with the penalties for federal alien-smuggling crimes under 8 USC § 1324.

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. Therefore, Texas law has a higher penalty than federal law.

This example shows why Operation Lone Star is probably unconstitutional. It means if DPS arrests you for smuggling a minor, you may get at least two years in jail. This fact will also increase your max jail term from 10 to 20 years in state court. On the other hand, you will only face 0-10 years if Border Patrol arrests you for smuggling a minor.

This is the problem courts have not resolved yet. 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 kilo of cocaine, then you can face both state and federal drug charges.

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 arrests 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.

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org