- Pursuant to the Texas Penal Code 20.03, kidnapping is defined as the unlawful act of taking another individual without their consent. The unlawful taking is completed by the use of force, threat of violence, or fraud.
Kidnapping also includes confining an individual for a substantial period of time without their consent. It may be charged as a state crime or as a federal crime.
Kidnapping can also occur within a family if the parents are separated or divorced. For example, a child can be kidnapped by their non-custodial parent, referred to as parental kidnapping is a type of kidnapping.
Parental kidnapping occurs when a parent takes a minor child under the following circumstances:
- Taking the child violates a court order;
- They are not the child’s custodial parent;
- There is an ongoing custody lawsuit involving the child.
Parental kidnapping charges are taken very seriously in Texas, as in all states. If an individual has any questions regarding kidnapping in Texas, they should consult with a local attorney in Texas.
Does Texas Have a Statute of Limitations on Kidnapping?
Yes, in general, there is a five-year statute of limitations on kidnapping in Texas. This means that charges must be brought against a defendant within five years of the offense.
What Is Aggravated Kidnapping in Texas?
In Texas, a defendant may be convicted of the more serious crime of aggravated kidnapping if they commit a kidnapping with the intent of doing any of the following:
- Holding the victim and demanding a reward or ransom;
- Using the victim as a shield or keeping them as a hostage;
- Aiding in the commission of a felony or an escape after committing a felony;
- Inflicting bodily injury on the victim;
- Sexually violating the victim;
- Abusing the victim;
- Terrorizing the victim or another person;
- Interfering with the performance of a political or governmental function; or
- Using or exhibiting a deadly weapon in the course of the crime.
In addition, a defendant may be charged with aggravated kidnapping if, during a parental kidnapping, they:
- Demand ransom for the child’s return;
- Use a deadly weapon at any time during the commission of the crime;
- Abuse the child.
Is Unlawful Restraint the Same as Kidnapping?
No, the offense of unlawful restraint in Texas is not the same as kidnapping. Unlawful restraint involves knowingly or intentionally restraining another individual but not abducting them.
Abduction and individual means moving them from one location to another location against their will. In contrast, restraining an individual involves keeping them in one place against their will.
In Texas, unlawful restraint is classified as a Class A misdemeanor, which is punishable by:
- Up to one year in county jail;
- A fine of $4,000;
- A fine and jail time.
If a defendant is charged with kidnapping in Texas, a felony, the charge may be reduced to unlawful restraint, which is a misdemeanor, through a plea bargain.
Are the Crimes of Kidnapping and Smuggling of Persons Used Interchangeably in Texas?
Kidnapping and smuggling of persons are two distinct offenses in Texas. The offense of smuggling a person, or human trafficking, involves the intent to conceal an individual from law enforcement.
It is a criminal offense to use a vehicle, airplane, boat, or any other type of vehicle intentionally to:
- Hide an individual from law enforcement;
- Flee from law enforcement.
In addition, under Texas law, it is a crime to knowingly:
- Encourage individuals to enter the country;
- Actively prevent an individual from being caught by law enforcement;
- Helping two or more individuals to enter or remain on farmland without the owner’s permission.
These laws are aimed at making it illegal to drive across the border to pick up other individuals with the intent to bring them across the border or otherwise transport them while hiding them from law enforcement.
Examples of smuggling of persons include:
- Picking up undocumented aliens at the Mexican border and driving them to Dallas, Houston, or San Antonio;
- Operating a stash house;
- Entering into an agreement with other individuals to transport undocumented aliens from the border to major cities.
In Texas, smuggling individuals is a second-degree felony if:
- The perpetrator commits the offense in such a way that it creates a substantial likelihood that the smuggled individual will suffer serious bodily injury or death;
- The smuggled individual is a child who is younger than 18 years of age at the time of the offense.
Smuggling an individual is a felony in the first degree in Texas if any of the following apply:
- It is proven at trial that, as a direct result of the commission of the offense, the smuggled individual became a victim of sexual assault or aggravated sexual assault, as defined in the Texas Penal Code;
- The individual who was smuggled suffered serious bodily injury or death.
The penalties for smuggling of individuals in Texas are similar to the penalties for kidnapping to the same degree. Continuous smuggling of persons is a more severe offense in Texas.
Continuous smuggling of persons is defined in the Texas Penal Code, Section 20.06, as conducting smuggling of individuals activities more than once over a period of 10 days or more. The perpetrator must have been engaged in smuggling activities on a more persistent basis to face this charge.
What Is the Punishment for Kidnapping in Texas?
In Texas, the punishment for kidnapping may include:
- Two to ten years in state prison;
- Criminal fines of $10,000;
- A combination of both.
If the offense is aggravated kidnapping, the perpetrator will be charged with a first-degree felony, which is punishable by:
- Five to 99 years in state prison;
- Criminal fines of up to $10,000;
- A combination of both.
This offense may be charged as a second-degree felony if, during the punishment phase of the trial, the defendant can demonstrate that they voluntarily released the victim in a safe place. If their argument is successful, the defendant may only face:
- Two to 20 years in state prison;
- Criminal fines of up to $10,000;
- A combination of both.
What Are the Affirmative Defenses to Kidnapping in Texas?
If an individual is charged with kidnapping, there are affirmative defenses that may be available to them, depending on the facts of their case, including:
- The defendant voluntarily released the victim in a safe place;
- This is a partial defense that may only result in a reduction in the penalty and the crime charged by one degree;
- The victim consented to the movement or confinement;
- An honest mistake can be a defense in a parental kidnapping case if the perpetrator parent shows that the supposed kidnapping was the result of the parent not understanding a custody plan and how it is supposed to function;
- Lack of intent to use deadly force;
- Lack of knowledge;
- The perpetrator is a relative of the victim; and
- The intent of the perpetrator was to gain lawful control of the victim.
It is important to note that other defenses may be available that are available in all types of criminal cases. For example, a defendant may claim that they were misidentified as the perpetrator when they did not, in fact, commit the offense.
This may occur if a witness misidentified the defendant in a photo line-up. Or, a defendant may try to have evidence excluded that was obtained in an illegal search or seizure.
Is Kidnapping a Misdemeanor or Felony Crime?
In Texas, as discussed above, kidnapping is a third-degree felony offense. Felony offenses are more serious than misdemeanor offenses and result in harsher punishments.
What Is a Third-Degree Felony in Texas?
A third-degree felony is the least serious category of Texas felony charges. A defendant, if convicted, may spend anywhere from two to 10 years in a state prison, may pay a fine of up to $10,000, or may be required to do a combination of both.
Do I Need the Help of a Lawyer With My Kidnapping Case in Texas?
If you are facing kidnapping or any related charges in Texas, it is essential to consult with a Texas criminal attorney. Kidnapping is a felony offense and may result in consequences that go far beyond your criminal record if you are convicted.
Your attorney can review your case and determine what defenses may be available to you. In addition, your lawyer can attempt to negotiate a plea bargain with the prosecution or have your charges reduced, if possible.
