Smuggling of Persons in Texas: What You Need to Know If You Were Arrested

If you were arrested for Smuggling of Persons in Texas under Tex. Pen. Code § 20.05, then you need a proven lawyer with experience fighting human-smuggling charges in South Texas. The stakes are serious. Depending on when you were arrested and the facts of your case, you could be looking at anywhere from two years to life in a Texas prison. This page explains how the law works, what prosecutors have to prove, and what defenses may be available to you.

I have been defending people charged with alien smuggling and human trafficking crimes in San Antonio and across South Texas for over 20 years. I handle state charges under § 20.05 and federal alien smuggling cases in the Western District of Texas. If you were stopped on a rural highway, accused of driving migrants from the border, or arrested under Operation Lone Star, call me today at (210) 733-7575 for a free consultation.

Note: Texas passed SB4 in November 2023, which significantly raised the minimum jail time for this crime. If you were arrested on or after February 6, 2024, the new penalties apply to your case. This page covers both the old and new penalty ranges.

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 2025 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 Facts Can Increase Your Jail Time?

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]

Table: Smuggling of Persons Jail Time.

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.

San Antonio Smuggling of Persons Defense Attorney — Genaro R. Cortez

If you are facing a Smuggling of Persons charge in Texas, do not wait to call an attorney. These cases move fast, and the decisions made in the first days after your arrest — what you say to police, whether you bond out, what county your case is filed in — can shape the outcome of your entire case.

I am Genaro R. Cortez, a criminal defense attorney in San Antonio with over 20 years of experience defending smuggling and trafficking cases. I handle both state charges under Tex. Pen. Code § 20.05 and federal alien smuggling charges in the Del Rio and San Antonio Divisions of the Western District of Texas. I have defended drivers, transporters, and people accused of running stash houses across South Texas, including in Eagle Pass, Del Rio, Brackettville, Rocksprings, Uvalde, Laredo, and San Antonio.

Here is what I can do for you:

• Review the stop. If police did not have a legal reason to pull you over, everything that came after — the search, the arrest, the statements — may be suppressible.
• Challenge the evidence. How did the police connect you to the migrants? Did the police search your phone without a warrant or your consent? Did they read you your Miranda rights?
• Negotiate. We resolve many of these cases through plea agreements. I know how prosecutors and judges evaluate these cases when they make plea offers or sentence people to jail or probation. In sum, I know when a deal is worth taking and when it is not.
• Fight at trial. If the State cannot prove its case, we take it to a jury.

I offer free consultations for people charged with Smuggling of Persons in Texas. Call me at (210) 733-7575 or fill out the contact form on this page. Hablo español.