Are Texas Anti-Smuggling Laws Unconstitutional? Governor Abbott and Texas Penal Code §20.05 and §20.06

Our state government continues to take independent state action using criminal laws to try and stem all sorts of border activities involving both people and things crossing from Mexico into Texas.  Recently, for instance, Governor Abbott issued an executive order announcing that two Mexican Cartels, and possibly more in the future, will be considered as “foreign terrorist organizations” in the State of Texas with law enforcement given specific orders in tandem with the designation.  For more, read Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective.

Of course, overall, there is Operation Lone Star, where the Texas Governor issued a “disaster declaration” in March 2021.  Almost fifty Texas counties are involved, with an instruction to the Texas Department of Public Safety to “use available resources to enforce all applicable federal and state laws to prevent the criminal activity along the border, including criminal trespassing, smuggling, and human trafficking, and to assist Texas counties in their efforts to address those criminal activities.”

There has been a new Texas immigration policy regarding state trespassing laws, as well.  The Governor has mandated state law enforcement to use existing state criminal trespass laws to arrest people caught crossing the border illegally. Read, “How Texas Gov. Greg Abbott has leveraged Texas trespassing laws to jail ‘thousands’ of migrants,” by Dan Carson and published by Chron on October 1, 2021.

However, one of the most powerful and far-reaching from a criminal defense standpoint has been the state focus upon human trafficking activities and how the State of Texas can fight against smuggling of persons across the state line independently of any federal action.

The 2021 Amendments to the Texas Alien Smuggling Statutes

To that end, Texas Governor Greg Abbott signed into law two amendments to the state alien smuggling statutes found in Texas Penal Code §20.05 and §20.06.  The changes are extremely beneficial from a prosecutorial perspective.  What’s happened?

In his September 2021 news release, the Governor explained the changes do two key things from the perspective of law enforcement:  (1) they enhance the criminal penalty for human smuggling when a payment is involved; and (2) they eliminate the requirement of proof for prosecution that a smuggler intended to receive payment for the crime of human smuggling. Read, “Governor Abbott Meets With McAllen City Officials, Signs Anti-Smuggling Legislation Into Law,” published by the Office of the Texas Governor on September 22, 2021.

The problem here?  These aggressive border policies arguably overstep their jurisdictional boundaries. Arguments can be made that they enter into federal sovereignty.  They are a kind of illegal border crossing in their own right. Read, e.g., “Texas judge opens door for widespread constitutional challenges to Gov. Greg Abbott’s border initiative,” written by Jolie McCullough and published in the Texas Tribune on January 14, 2022.

Of particular importance, from a Texas criminal defense viewpoint, are the two amended Texas anti-smuggling laws, which apparently have been and continue to be the basis of arrests being made right now.

The current anti-smuggling statutes arguably cross the line between the powers of the State of Texas and the authority of the federal government in violation of the United States Constitution.   Importantly, at least one federal district court in the State of Texas agrees with this position.  See Cruz v. Abbott, 177 F.Supp.3d 992 (W.D. Tex. 2016), rev’d in part, 849 F.3d 594 (5th Cir. 2017).

What are the 2021 Texas Human Smuggling Laws?

Under the expanded Texas Human Smuggling Statutes, “human smuggling” has been defined by state law.  These are defined criminal offenses independent of any federal human trafficking legislation.  Read, Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2; and Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2.

Texas Penal Code §20.05: Smuggling of Persons

In Texas, “smuggling of persons” is defined by Texas Penal Code §20.05 as a criminal offense if the person knowingly:

(1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to:

(A) conceal the individual from a peace officer or special investigator; or

(B) flee from a person the actor knows is a peace officer or special investigator attempting to lawfully arrest or detain the actor;

(2) encourages or induces a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection; or

(3) assists, guides, or directs two or more individuals to enter or remain on agricultural land without the effective consent of the owner.

The statute defines violation of this criminal statute as a felony offense.  Depending upon the circumstances of the crime, the accused faces charges of a third-degree felony up to first-degree felony if the smuggled person is killed or shown to be victim of sexual assault or great bodily harm.

From Texas Penal Code §20.05 (“TPC §20.05”):

(b) An offense under this section is a felony of the third degree, except that the offense is:

(1) a felony of the second degree if:

(A) the actor commits the offense in a manner that creates a substantial likelihood that the smuggled individual will suffer serious bodily injury or death;

(B) the smuggled individual is a child younger than 18 years of age at the time of the offense;

(C) the offense was committed with the intent to obtain a pecuniary benefit;

(D) during the commission of the offense the actor, another party to the offense, or an individual assisted, guided, or directed by the actor knowingly possessed a firearm; or

(E) the actor commits the offense under Subsection (a)(1)(B); or

(2) a felony of the first degree if:

(A) it is shown on the trial of the offense that, as a direct result of the commission of the offense, the smuggled individual became a victim of sexual assault, as defined by Section 22.011, or aggravated sexual assault, as defined by Section 22.021; or

(B) the smuggled individual suffered serious bodily injury or death.

For more on the differences between these felony punishments, read Felony Charges under Texas and Federal Law: Criminal Defense Overview.

Importantly, the amended law gives the state prosecutor specific discretionary powers on how to charge.  The law states that “[i]f conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.”

There is something provided for the criminal defense.  A statutorily defined affirmative defense is included where family is involved.  Texas Penal Code §20.05(c) states:

It is an affirmative defense to prosecution of an offense under this section, other than an offense punishable under Subsection (b)(1)(A) or (b)(2), that the actor is related to the smuggled individual within the second degree of consanguinity or, at the time of the offense, within the second degree of affinity.

Texas Penal Code §20.06:  Continuous Smuggling of Persons

The corresponding statute defines the crimes involved when there is a “Continuous Smuggling of Persons.”  Under Texas Penal Code §20.06, “[a] person commits an offense if, during a period that is 10 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Section 20.05.”

The punishment here, as defined by the statute, involves a second-degree felony but it can rise to a first-degree felony (and life imprisonment) if certain facts are proven by the state.

From Texas Penal Code §20.06 (“TPC 20.06”):

(e) Except as provided by Subsections (f) and (g), an offense under this section is a felony of the second degree.

(f) An offense under this section is a felony of the first degree if:

(1) the conduct constituting an offense under Section 20.05 is conducted in a manner that creates a substantial likelihood that the smuggled individual will suffer serious bodily injury or death; or

(2) the smuggled individual is a child younger than 18 years of age at the time of the offense.

(g) An offense under this section is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years, if:

(1) it is shown on the trial of the offense that, as a direct result of the commission of the offense, the smuggled individual became a victim of sexual assault, as defined by Section 22.011, or aggravated sexual assault, as defined by Section 22.021; or

(2) the smuggled individual suffered serious bodily injury or death.

More good news for the District Attorney.  In these matters, the statute provides that the prosecution does not have to get a unanimous jury verdict on the issues of (1) which specific conduct engaged in by the defendant constituted an offense under Section 20.05 or (2) on which exact date the defendant engaged in that conduct.

For a conviction, the jury still must be unanimous that the prosecution has shown beyond a reasonable doubt with admissible evidence that “the defendant, during a period that is 10 or more days in duration, engaged two or more times in conduct that constitutes an offense under Section 20.05.”

One Victim Defense

As for the criminal defense, the statute does provide that some clarification if there are different smuggling charges involving the same victim.  First, according to TPC §20.06, “ [i]f the victim of an offense under Subsection (a) is the same victim as a victim of an offense under Section 20.05, a defendant may not be convicted of the offense under Section 20.05 in the same criminal action as the offense under Subsection (a), unless the offense under Section 20.05:

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a).

Additionally, a defendant cannot be charged with more than one count under Subsection (a) of the Continuous Smuggling Law if all of the conduct that constitutes an offense under the Human Smuggling Law (TPC §20.05) is alleged to have been committed against the same victim.

The Cruz v. Abbott Opinion

One federal district court has considered this matter and agreed with the position that Texas Anti-Smuggling Laws are unconstitutional.  While the case was reversed on appeal based upon lack of standing, the Fifth Circuit Court of Appeals was clear that it was not considering nor ruling upon the remainder of the lower court’s decision.  See Cruz v. Abbott, 849 F.3d 594 (5th Cir. 2017).

The amendments to the state anti-smuggling statutes that happened after these opinions were issued arguably do not change the lower court’s reasoning regarding the constitutionality of the State of Texas’ human smuggling laws.

A criminal defense argument remains that the current Texas anti-smuggling statutes are unconstitutional because they violate the Supremacy Clause of the United States Constitution. See U.S. Const. art. VI, cl. 2.

Consider the following arguments, as addressed in Cruz, 177 F. Supp.at  1010-1011 (quoting extensively from the opinion):

1. The statutes violate the Supremacy Clause of the United States Constitution. SeeS. Const. art. VI, cl. 2.
2. They intrude in a field occupied by the federal government and conflict with the purposes of federal immigration statutes.
3. There are two bases for preemption: the Supreme Court has ruled that “in the absence of an express preemption provision, a state or local law may be required to `give way to federal law’ under at least two circumstances: field and conflict preemption.” Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524, 528 (5th Cir. 2013) (en banc) (quoting Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2501, 183 L.Ed.2d 351 (2012)).
4. Regarding field preemption, it has been held that states and localities may not `regulat[e] conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.'” Villas at Parkside, 726 F.3d at 528 (quoting Arizona, 132 S.Ct. at 2501). “The intent to displace state law altogether can be inferred from a framework of regulation `so pervasive … that Congress left no room for the States to supplement it’ or where there is a `federal interest … so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'” Arizona, 132 S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).
5. Regarding conflict preemption, state and local laws are preempted `when they conflict with federal law.'” Villas at Parkside, 726 F.3d at 528 (quoting Arizona, 132 S.Ct. at 2501). “This includes cases where `compliance with both federal law and state regulations is a physical impossibility,’ and those instances where the challenged law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” Arizona, 132 S.Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000)).
6. There is a presumption against preemption. Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). Nevertheless, the presumption is not strong when the states have not traditionally legislated, especially in areas which are “inherently federal in character.” Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001).
7. Similar state anti-smuggling laws have been held unconstitutional on these grounds in other federal circuits, including (1) the Fourth Circuit; (2) the Eleventh Circuit; (3) Third Circuit; and the (4) Ninth Circuit. Of note, the Eighth Circuit did not find its city ordinance to be field preempted.
8. In Cruz, the court found the reasoning in the Third, Fourth, Ninth, and Eleventh Circuits for field preemption analysis persuasive.
9. As for conflict preemption, the court opined that the Texas anti-smuggling laws are also likely conflict preempted.
10. The arguments for conflict preemption are they conflict with federal law because (1) they relocate decision-making from federal actors to state actors; (2) they impose inconsistent and greater penalties than 8 U.S.C §1324; and (3) they widen 8 U.S.C §1324 in certain aspects and narrows it in other aspects.
11. The Fifth’s Circuit ruling in Farmers Branch is instructive. “The federal government alone, however, has the power to classify non-citizens.” Farmers Branch, 726 F.3d at 536. Accordingly, allowing a state official to preliminarily “assess the legality of a non-citizens presence absent a `preclusive’ federal determination, open[s] the door to conflicting state and federal rulings on the question.”

Texas Arrests for Smuggling In Violation of Texas Penal Code §20.05 or §20.06

Right now, Texas law enforcement can and will act in conjunction with Governor Abbott’s edict.  Arrests will be made based upon the current state anti-smuggling laws.  It will take federal defense action within the courts to address the issue of the constitutionality of these arrests and whether or not they are preempted pursuant to the Supremacy Clause of the United States Constitution.

Accordingly, a vigorous and experienced criminal defense lawyer will be needed for anyone facing charges in state court based upon these laws.  Nothing bars these arrests right now.

For more, read:

• Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2
• Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2
• Child Sex Trafficking Arrest in Texas: Criminal Defense Overview
• Organized Criminal Activity Charges Under Texas Penal Code §71.02.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “TOP 10 THINGS TO KNOW WHEN DEFENDING TEXAS CHARGES OF MANUFACTURE OR DELIVERY OF AN ILLEGAL SUBSTANCE.”