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Kidnapping, trafficking and smuggling

Summary of the topic

Chapters 20 and 20A of the Penal Code build three ladders. The first runs from unlawful restraint through kidnapping to aggravated kidnapping, and it rests on two definitions in section 20.01. To restrain is to restrict a person's movements without consent so as to interfere substantially with the person's liberty, and to abduct is to restrain a person with intent to prevent liberation, either by secreting or holding the person where he is not likely to be found or by using or threatening to use deadly force. Abduction is what separates kidnapping from unlawful restraint.

Section 20.02 makes unlawful restraint a Class A misdemeanor by default, with higher grades where the person restrained was a child under 17 or the actor recklessly exposed the victim to a substantial risk of serious bodily injury. Section 20.03 makes kidnapping a third degree felony. Section 20.04 makes it aggravated kidnapping to abduct a person with one of the listed intents, such as holding the person for ransom or as a hostage, or to abduct a person and use or exhibit a deadly weapon. Aggravated kidnapping is a first degree felony, but under section 20.04(d) the defendant may raise at the punishment stage whether he voluntarily released the victim in a safe place, and if he proves it by a preponderance of the evidence the offense is a second degree felony.

The second ladder concerns smuggling. Section 20.05 covers using a conveyance to transport an individual with intent to conceal the individual from a peace officer, encouraging a person to enter or remain in the country in violation of federal law by concealing or harboring the person, and assisting two or more individuals to enter or remain on agricultural land without the owner's consent. It is a third degree felony with a term of imprisonment of 10 years, and the grade rises to the second or first degree where, for example, the smuggled individual is a child, a firearm is possessed, or the smuggled individual suffers serious bodily injury or death. Section 20.06 covers continuous smuggling over a period of 10 or more days, and section 20.07 covers using or permitting the use of property to operate a stash house.

The third ladder is trafficking of persons in Chapter 20A. Section 20A.02 sets out eight limbs in four pairs, each pairing a form of trafficking with the knowing receipt of a benefit from it. The child and disabled-victim limbs need no force, fraud or coercion, and they are first degree felonies whether or not the actor knew the age or disability. Section 20A.03 makes continuous trafficking over 30 or more days a first degree felony punishable by 25 years to life.

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