Texas Penal Code 71.02 – Engaging in Organized Criminal Activity

WHAT IS ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

The Texas law against engaging in organized criminal activity prohibits three or more persons combining as a criminal street gang and committing gang-motivated offenses.

• What is a criminal street gang? Texas Penal Code Section 71.01 defines a criminal street gang as three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

• What are gang-free zones? Texas Penal Code Section 71.028 defines “gang-free zones” as any location: (1) in, on, or within 1,000 feet of a school, youth center, playground, residential treatment center; (2) on a school bus; or (3) in, on, or within 300 feet of a shopping mall, movie theater, public swimming pool, or arcade.

• What is organized crime in Texas? The Texas law against engaging in organized criminal activity enhances the penalty for the following offenses if committed or conspired to be committed as a combination or three or more people, or as a member of a criminal street gang:

• • murder and capital murder
  • robbery and aggravated robbery
  • arson
  • burglary, theft, and burglary of a motor vehicle,
  • kidnapping and aggravated kidnapping
  • sexual assault and aggravated sexual assault
  • assault (punishable as a Class A misdemeanor), and aggravated assault
  • continuous sexual abuse of young child or disabled individual
  • solicitation of a minor
  • forgery
  • deadly conduct
  • unauthorized use of a motor vehicle
  • any gambling offense punishable as a Class A misdemeanor
  • unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons
  • promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution
  • drug-related offenses
  • obscenity
  • sale, distribution, or display of harmful material to a minor, sexual performance by a child, possession of lewd visual material depicting a child, electronic transmission of visual material depicting a minor, and child pornography
  • any felony offense under Chapter 32;
  • bribery and corrupt influence offenses;
  • money laundering, insurance fraud, or health care fraud;
  • impersonating a public servant;
  • trafficking of persons and continuous trafficking of persons;
  • tampering with a governmental record;
  • escape, permitting or facilitating escape, implements for escape, and prohibited substances or items in a correctional facility
  • dog fighting
  • smuggling of persons and continuous smuggling of persons
  • unlawful interception, use, or disclosure of wire, oral, or electronic communications
  • any offense classified as a felony under the Tax Code

WHAT IS THE ENGAGING IN ORGANIZED CRIMINAL ACTIVITY LAW IN TEXAS?

Tex. Penal Code § 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY.

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or disabled individual, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;

(2) any gambling offense punishable as a Class A misdemeanor;

(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;

(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;

(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;

(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;

(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;

(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;

(8) any felony offense under Chapter 32;

(9) any offense under Chapter 36;

(10) any offense under Chapter 34, 35, or 35A;

(11) any offense under Section 37.11(a);

(12) any offense under Chapter 20A;

(13) any offense under Section 37.10;

(14) any offense under Section 38.06, 38.07, 38.09, or 38.11;

(15) any offense under Section 42.10;

(16) any offense under Section 46.06(a)(1) or 46.14;

(17) any offense under Section 20.05 or 20.06;

(18) any offense under Section 16.02; or

(19) any offense classified as a felony under the Tax Code.

(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for:

(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the defendant is 18 years of age or older and:

(A) the victim of the offense is younger than six years of age;

(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or

(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense;

(2) life or for any term of not more than 99 years or less than 30 years if the most serious offense is an offense under Section 20.06 that is punishable under Subsection (g) of that section; or

(3) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1) or (2).

(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.

Tex. Penal Code § 71.05. RENUNCIATION DEFENSE.

(a) It is an affirmative defense to prosecution under Section 71.02 that under circumstances manifesting a voluntary and complete renunciation of the actor’s criminal objective, the actor withdrew from the combination before commission of an offense listed in Section 71.02(a) and took further affirmative action that prevented the commission of the offense.

(b) For the purposes of this section and Subsection (d) of Section 71.02, renunciation is not voluntary if it is motivated in whole or in part:

(1) by circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or

(2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.

(c) Evidence that the defendant withdrew from the combination before commission of an offense listed in Section 71.02(a) and made substantial effort to prevent the commission of an offense listed in Section 71.02(a) shall be admissible as mitigation at the hearing on punishment if the actor has been found guilty under Section 71.02, and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided under Section 71.02.

WHAT IS THE PENALTY CLASS FOR ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

The penalty classification for engaging in organized criminal activity is one category higher than the most serious offense committed. Engaging in organized criminal activity is a:

• First degree felony, punishable by:
  • life without parole, if the offense was aggravated sexual assault against a victim:
    • under six years old;
    • under 14 years old, and the offense was committed by threatening or causing serious bodily injury to the child; or
    • under 17 years old, and the child suffered serious bodily injury;
  • between 30 years and 99 years or life in prison, if the offense was continuous smuggling of persons, and the smuggled person became a victim of sexual assault or suffered serious bodily injury or death;
  • between 15 years and 99 years or life in prison if the offense was any other first degree felony;
• First degree felony, punishable by five to 99 years or life in prison, if:
  • the object offense was a second degree felony;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the object offense was a third degree felony;
• Third degree felony, punishable by two to ten years in prison, if:
  • the object offense was a state jail felony;
• State jail felony, punishable by 180 days to two years in a state jail facility, if:
  • the object offense was a Class A misdemeanor;
• Class A misdemeanor, punishable by up to one year in county jail, if:
  • the object offense was a Class B misdemeanor;
• Class B misdemeanor, punishable by up to 180 days in county jail.

Texas Penal Code Section 71.028 increases the penalty class to the next highest category if the offense was committed in a gang-free zone.

WHAT IS THE PUNISHMENT RANGE FOR ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

The punishment range for organized criminal activity depends on the penalty category.

• Class B misdemeanor: up to 180 days in jail, maximum $2,000 fine;
• Class A misdemeanor: up to one year in jail, maximum $4,000 fine;
• State jail felony: 180 days to two years in a state jail facility, maximum $10,000 fine;
• Third degree felony: two to ten years in prison, maximum $10,000 fine;
• Second degree felony: two to 20 years in prison, maximum $10,000 fine;
• First degree felony: five to 99 years or life in prison, maximum $10,000 fine, if the object offense was a second degree felony;
• If the object offense was a first degree felony:
  • 15 to 99 years or life in prison, maximum $10,000 fine;
  • 30 to 99 years or life in prison, maximum $10,000 fine; or
  • life without parole.

WHAT ARE THE PENALTIES FOR ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

A person charged with engaging in organized criminal activity categorized as a Class A or Class B misdemeanor may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years.

A person charged with engaging in organized criminal activity as a state jail felony is eligible for probation or deferred adjudication for a period between two and five years, with the possibility of extending supervision for up to ten years.

If a person is charged with engaging in organized criminal activity as a third degree felony, second degree felony, or first degree felony, unless the minimum punishment exceeds ten years in prison, is eligible for probation or deferred adjudication for up to ten years.

Texas Code of Criminal Procedure article 42A.507 permits a court to order electronic monitoring or other form of GPS tracking as a condition of community supervision for a member of a criminal street gang who has been previously convicted of or placed on deferred adjudication for two or more felony offenses.

Texas Code of Criminal Procedure article 42A.508 further permits a court, as a condition of community supervision for a criminal street gang member, to restrict where and at what times a person on supervision may operate a motor vehicle.

• What is parole eligibility for engaging in organized criminal activity in Texas? Pursuant to Texas Government Code Section 508.145, people sent to prison for engaging in organized criminal activity must serve the lesser of half their prison sentence, or 30 years before becoming parole-eligible.

WHAT ARE THE DEFENSES TO ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

Texas Penal Code Section 71.03 specifically excludes certain defenses to engaging in organized criminal activity, meaning a person accused thereof may not argue at trial as a defense that:

• one or more members of the combination are not criminally responsible for the object offense;
• one or more members of the combination have been acquitted, have not been prosecuted or convicted, or are immune from prosecution;
• another has already been charged with, acquitted of, or convicted of the same offense; or
• since forming the combination, the number of participants was reduced or changed, so long as two or more persons are involved in the combination’s continuing course of organized criminal activity.

Although certain defenses are excluded, Texas law provides a renunciation defense to organized criminal activity.

• What is the renunciation defense to engaging in organized criminal activity in Texas? Texas Penal Code Section 71.05 provides an affirmative defense to engaging in organized criminal activity if the accused withdrew from the combination prior to the commission of the object offense, and took further affirmative action to prevent the commission of the offense.

WHAT IS THE STATUTE OF LIMITATIONS FOR ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS?

The limitation period for engaging in organized criminal activity is the same as the most serious offense that is the object of the organized criminal activity.

ENGAGING IN ORGANIZED CRIMINAL ACTIVITY IN TEXAS

Texas law punishes engaging in organized criminal activity as one offense category higher than the object offense of the criminal street gang. The Legislature places high importance on deterring the activity of both local and transnational criminal street gangs, and has funded law enforcement in furtherance of this effort.

TEXAS ENGAGING IN ORGANIZED CRIMINAL ACTIVITY COURT CASES

The case law regarding organized criminal activity in Texas illustrates how people may be held criminally responsible for all foreseeable acts of their co-conspirators.

• In Zuniga v. State, the defendant was convicted of capital murder and engaging in organized criminal activity after participating in the beating, stabbing, and shooting of two brothers who were part of a rival street gang. The defendant and several others had claimed El Paso as their gang’s territory for drug trafficking, and the victims’ rival gang refused to pay their demanded fee. The jury could have reasonably determined the murders were pursuant to his role as a member of a criminal street gang. Convictions affirmed.