What is the risk of jail time for an alien smuggling charge in Texas?

“Will I go to jail for an alien smuggling charge in Texas?” The short answer is it depends on several factors. But in many cases, you may be able to limit or avoid the risk of jail time altogether.

More importantly, I will explain why this question is tough to answer. And I will also walk you through factors that can raise or lower your risk of getting jail time in your case. But first, we need to set up a framework for our conversation.

This post focuses only on transporting crimes. It does not deal with trafficking crimes. Namely, transporting crimes mean that a person drives an undocumented migrant from one city to another for a fee. Conversely, human trafficking is a darker crime. It means driving or harboring another person for forced labor or to commit a sex crime.

In addition, this post applies to the following counties:

  • Val Verde-Del Rio;
  • Kinney-Bracketville;
  • Uvalde;
  • Maverick-Eagle Pass;
  • Edwards-Rocksprings; and
  • Medina.

These counties sit on or are closely connected to US 90, which is a major smuggling route in South Texas. Accordingly, this is where police are making a large number of transporting and smuggling arrests.

State vs Federal Alien Smuggling Charges in Texas.

There are two types of alien-smuggling crimes in Texas. The first one is the federal crime. The second type is the state crime of Smuggling of Persons in Texas. As a side note, state prosecutors go out of their way to say the state crime is not1 an alien-smuggling crime. However, both of these crimes cover the same conduct.

In particular, the most common fact pattern for these two types of crimes is a traffic stop that leads to an alien-smuggling arrest. Border Patrol agents and state police know the routes human smugglers use to pickup and drive migrants from the border and into major cities. So they sit on these routes and look for telltale signs of human smuggling.

From here, this is where the risk of jail time will diverge in your case. If police arrest you for a federal2 crime, then your risk of jail time goes up. In contrast, if police arrest you for the state3 crime of Smuggling of Persons, then it is a real possibility that you may avoid jail time in your case.

The key takeaway is that state prosecutors have more discretion to make a probation plea offer than federal prosecutors. More to the point, federal prosecutors generally do not make probation offers. This means the probation request will be up to the federal judge in your case. Unfortunately, this often results in a jail term for a person in federal court.

Factors that raise the risk of jail time for human-smuggling cases.

Although the state and federal crimes of human smuggling are completely different laws, they share certain traits. Specifically, they both consider the risk of danger the driver caused in the case. For instance, the risk of jail time will go if you:

  • got into a high-speed chase with police;
  • put migrants in the trunk of the car or hid them in a secret compartment;
  • overloaded the car with migrants;
  • hid the migrants in the trailer of an 18-wheeler;
  • drove the migrants in dangerous conditions;
  • have done this before;
  • have a serious criminal record;
  • are charged with a federal crime.

These factors vary on a case-by-case basis. They also show why it is so hard to answer this simple question: “Will I go to jail for human smuggling in Texas?”

Nevertheless, this information will give you an idea of what to expect in your case. In general, if your case is a state crime, you have a clean record, and none of these factors are present, then probation is possible. On the other hand, if it is a federal case, then you will face a high risk of jail time.

How can an attorney help me with an alien smuggling charge in Texas?

The right lawyer can help you in at least two ways. First, your lawyer can review the facts of your case to see if you did what the prosecutors says you did. To illustrate, the lawyer will review the body and dash camera videos with you to see what really happened.

In addition, the attorney will review the cellphone evidence and any statements you made to see if police can show that you had the criminal intent to break the law. Notably, lack of criminal intent is the most common reason why people decide to go to trial on alien smuggling charges in Texas. In other words, the driver may have had migrants in the car, but he did not intend to break the law.

Second, a lawyer can help you manage the risk of jail time in your case. In many cases, people work out a plea deals to avoid jail time. Yet in other cases, the risk of jail time is a secondary consideration.

This happens when either the defendant is not a US Citizen, or he or she cannot have a felony conviction on their record. In these types of cases, pleading out will cause ICE to remove them from the country. Or it will cause them to lose their gun rights or government benefits. For people in this situation, a jury trial will make sense even if there is strong evidence of guilt.

A lawyer can guide you through this decision tree and help you make the best choice based on your goals.

Conclusion.

The hardest part of a criminal defense lawyer’s job is to balance a client’s sense of hope for the future against their fear of a bad outcome in the case. A lawyer can do this by going over the case with you to figure out a plan for your case. Sometimes that may mean taking a plea deal to cut your losses. But in other cases, it may mean taking your case to trial because you are innocent or to protect other important rights.

In sum, the risk of jail time for your alien smuggling charge in Texas will depend not only on the facts of the case, but on how you want to approach the defense. And that choice will vary from client to client.

Attorney Genaro R. Cortez. Phone: 210-733-7575.

  1. Normally, the crime of transporting aliens is exclusively a federal crime. However, in 2021, Texas started filing alien-smuggling cases in state court. Therefore, it is likely that a Texas Smuggling of Persons charge based on alien smuggling is an unconstitutional crime. Nevertheless, state and federal courts have not been clear on this issue. ↩︎
  2. If police arrest you in one of the listed counties above for a federal crime, then you will appear in Del Rio Federal Court. Historically, a case in Del Rio Federal Court will result in a jail term. ↩︎
  3. If police arrest you for the state crime of Smuggling of Persons in Texas, then you will go to court in the county you were arrested in. For example, if you are arrested in Uvalde County, then your case will be handled by the Uvalde County Prosecutors Office. ↩︎