In Texas, not all crimes are created equal. This is especially true when we are talking about gang crimes. In an effort to crack down on gangs, legislators got creative and put a number of Texas gang laws on the books that are specifically geared toward members (or perceived members) of criminal street gangs.
For example, defendants face enhanced, or harsher, penalties if prosecutors can prove they committed a crime that was gang related — or if they engaged in gang-related activity near a school, shopping mall or daycare. The government can also impose so-called “gang injunctions,” which prohibit people from hanging out together or being in certain parts of town. If they violate the order, they could be arrested.
Here’s an overview of the Texas gang laws and answers to some frequently asked questions.
What is a Gang?
Under Texas Penal Code 71.01, a criminal street gang is defined 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.” In general terms, gangs are often based upon race, ethnicity or territory and are identified by the clothing or colors they wear and the ways they make money.
Is it Illegal to be in a Gang?
It is not illegal to be in a gang. However, Texas has enacted numerous laws aimed at deterring gang membership and gang activities.
What Texas Laws are Specifically Geared Toward Gangs?
There are five statutes in Chapter 71 of Texas Penal Code that are specifically geared toward gangs or gang activity. They include engaging in organized activity; violation of a court order enjoining organized criminal activity; coercing, inducing or soliciting membership in a criminal street gang; directing activities of certain criminal street gangs, and gang free zones.
Here’s a look at each one and the punishments for violating a Texas gang law:
1. Engaging in Organized Criminal Activity
In Texas, gang-related conduct is considered organized crime. If a person is a member of a criminal street gang and conspires to commit crimes, it is considered engaging in organized criminal activity. Under Penal Code Section 71.02, a person engages in organized crime activity (EOCA) if they acted “with the intent to establish, maintain or participate in a combination or in the profits of a combination or as a member a criminal street gang” and committed or conspired to commit one of the following:
- murder, capital murder, arson, aggravated, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, 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;
- any gambling offense punishable as a Class A misdemeanor;
- promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
- unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
- 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; causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
- any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
- any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
- any felony offense under Chapter 32 (fraud), 36 (bribery), 34 (money laundering), 35 (insurance fraud), 35A (Medicaid fraud), 37.11(a) (impersonating a public servant), 20A (human trafficking), 37.10 (tampering with government records), 38.06 (escape), 38.07 (facilitating escape), 38.09 (implementing escape), 38.11 (prohibited substance in jail or prison), 42.10 (dog fighting), 46.06(a)(1) (unlawful transfer of weapons), 46.14 (firearm smuggling), 20.05 (smuggling of persons), 20.06 (continuous smuggling of persons);
- any offense classified as a felony under the Tax Code
The punishment for EOCA is one degree higher than the underlying offense. For example, if the underlying offense was a second-degree felony such as arson, sexual assault or manslaughter, then the punishment for engaging in organized crime would be a first-degree felony. If the underlying offense is a first degree felony, such as murder or aggravated robbery, the punishment range begins at 15 years and goes up to life in prison. Normally, a first-degree felony that is not committed in furtherance of a gang starts at five years in prison and goes up to life.
2. Violation of a Court Order Enjoining Organized Criminal Activity
Penal Code Section 71.021 is commonly referred to as a “gang injunction,” which was designed to keep gang members from associating with each other or frequenting certain locations. To get a “gang injunction,” the government must file a civil lawsuit against individuals believed to be gang members. If the court finds that they constitute a “public nuisance,” the court can enter a temporary or permanent order prohibiting them from associating with each other, going to certain locations or engaging in specific activities. If they violate the court order, they can be arrested.
Violating a court order enjoining organized criminal activity is a Class A misdemeanor, which is punishable by up to a year in jail and a $4,000 fine.
3. Coercing, Inducing or Soliciting Membership in a Criminal Street Gang
Gang initiations often involve committing crimes or fighting. In Texas, under Penal Code 71.022 it’s against the law for someone to recruit an individual to be part of a criminal street gang and require them to commit a Class A misdemeanor or felony as part of their initiation or continued membership. It is also illegal to coerce, induce or solicit a child under 17 to participate in a street gang by:
- Threatening the child or family member of the child with imminent bodily injury; or
- Causing bodily injury to the child or a member of the child’s family
Soliciting membership in a criminal street gang is a third-degree felony, punishable by 2 to 10 years and a $10,000 fine on the first offense. A subsequent solicitation offense would be a second-degree felony punishable by 2 to 20 years in prison and a $10,000 fine.
4. Directing Activities of Certain Criminal Street Gangs
Most criminal street gangs are organized and function under a designated hierarchy. If prosecutors can show that a leader of a gang knowingly financed, directed or supervised the commission of a felony by members of a criminal street gang, he or she can be charged with directing activities of certain criminal street gangs under Penal Code Section 71.023. This is a very serious, first-degree felony, punishable by 25 years to life in prison.
5. Gang-Free Zones
Under Penal Code 71.028, Texas law establishes “gang free zones” around specific locations, including schools, shopping malls and day care centers. Gang members will face enhanced, or harsher, punishment if they commit certain offenses at locations that are:
- In, on, or within 1000 feet of any:
(a) Real property that is owned, rented or leased by a school or school board;
(b) Premises owned, rented, or leased by an institution of higher education;
(c) Premises of a public or private youth center; or
- In, on, or within 300 feet of any:
(a) Shopping mall
(b) Movie theater
(c) Premises of a public swimming pool; or
- On a school bus
Individuals who are 17 years or older and engage in gang activity in a gang-free zone will face enhanced penalties. The punishment for these crimes are elevated to the next highest category of offense. For example, a third-degree felony offense committed in a gang-free zone would become a second degree felony. A second-degree felony would become a first-degree felony.
What Should You Do if You’ve been Charged with a Gang Crime in Texas?
If you or a loved one has been charged with a gang crime, it is important to contact a defense attorney who understands the complexities of Texas gang laws. An astute gang crime attorney can determine whether you or a family member’s constitutional rights were violated by aggressive law enforcement officials. They can also work to build a defense to show that the evidence is insufficient evidence to establish engaging in organized criminal activity. It’s vitally important to contact an attorney as soon as possible so they can begin conducting their own investigation.
The attorneys at Varghese Summersett can help. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 600 cases before Texas juries in state and federal courts. All of our senior attorneys were former state or federal prosecutors and five are board certified in criminal law, the highest designation an attorney can reach. We have proven results defending gang-related crimes. When the stakes are high and you don’t know where to turn, turn to us.
Accused of Breaking a Texas Gang Law? Contact Us
Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.