Can Being in a Gang Increase Penalties for a Crime in Texas?

April 17, 2023

If you’re charged with a crime and also accused of being in a gang, it can increase the penalty for the crime. Texas’s laws regarding “gang” activity are broad, covering many crimes, not just serious felonies.

What is a “Gang” in Texas?

Under Texas law, a criminal street gang “means 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.” Tex. Pen. Code § 71.01(d) (1995). Membership in a gang might be based on living in a geographic area, race, income source, or ethnicity. Gang members might identify with a symbol or even wear a certain color. But you can face increased penalties if you commit a crime while a gang member.

Engaging in Organized Criminal Activity

Under Texas law, “gang” activity is more formally called “organized criminal activity.” Someone engages in “organized criminal activity” if they commit a specific crime “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.” Tex. Pen. Code § 71.02 (2003).

1. Crimes Qualifying as Organized Criminal Activity

Some of the included crimes are:

• Murder,

• Burglary,

• Robbery,

• Theft,

• Kidnapping,

• Aggravated assault,

• Sexual assault,

• Sexual abuse of a child or disabled person,

• Solicitation of a minor,

• Forgery, • Deadly conduct,

• Misdemeanor assault,

• Car theft, or • Unauthorized use of a motor vehicle.

“Unauthorized use of a motor vehicle” is broad enough to make crimes like DWI, street racing, or using a motor vehicle while committing any crime into “organized criminal activity.” Crimes that fall under organized criminal activity also include:

• Misdemeanor gambling offenses;

• Promoting prostitution;

• Unlawfully selling, manufacturing, transporting, or repairing firearms or prohibited weapons;

• Possessing, manufacturing, selling, or distributing a controlled substance or dangerous drug;

• Possession or promotion of obscene material or an obscene device;

• Any offense against a minor under Chapter 43 of the Texas Criminal Code;

• Felony offenses that qualify as fraud, bribery, money laundering, insurance fraud, Medicaid fraud, human trafficking, impersonating a public servant, tampering with government records, escape, facilitating or implementing escape, dog fighting, having a prohibited substance in jail, unlawful transfer of weapons, firearm smuggling, and smuggling people; and

• Any felony tax code violation.

2. Conspiring to Commit a Crime

For a crime to qualify as gang activity under the statute, you must commit or conspire to commit that crime. Conspiring to commit a crime means:

  • [T]hat a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties. Tex. Pen. Code § 71.01(b).

But the “members” of a gang don’t have to be friends or even know each other well. The membership can constantly change, and members can be in an arms-length or supplier-wholesaler relationship to distribute illegal substances. Members don’t even have to know the identities of other members.

Increased Penalties for Organized Criminal Activity

If you’re facing charges for organized criminal activity in addition to the underlying crime, the penalty will be one grade higher than the underlying offense. For example, if you are facing a burglary charge in Texas, the crime is typically a state jail felony. You could face penalties of up to two years in jail and a $10,000 fine. If police also charge you with organized criminal activity, it will be a third-degree felony, punishable by two to ten years in prison and up to a $10,000 fine. Similarly, if you face a Class A misdemeanor assault charge, the penalty can be up to one year in jail and a $4,000 fine. But for an accompanying organized criminal activity charge, you could face a state jail felony punishable by up to two years.

Get Help from an Experienced Defense Attorney in Weatherford, TX

If you face criminal charges, it’s crucial that you receive the best legal representation available. Call the Law Office of Kenneth W Mullen PC today at (817) 341-4848, or contact us online for a free consultation.


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