Four years ago on a cold winter night, Teresa Todd was driving on a highway in West Texas when she saw three young migrants from Central America limping along the side of the road. Concerned that one of them, a woman named Esmeralda, looked severely dehydrated and exhausted, Todd pulled over and invited the three of them into her car to stay warm.
A county and city attorney, she was phoning and texting friends for ideas about how to help the migrant trio get medical care when a sheriff’s deputy and Border Patrol agents approached her car. A patrol supervisor told her she could be found guilty of “transporting illegal aliens,” as part of a federal crackdown under the Trump administration targeting private citizens who provide help to migrants. Todd was arrested and kept in a holding cell.
A week later, a federal agent showed up to her office and confiscated her phone. Though not charged with a crime, she became the focus of a federal investigation.
“To have devoted my life to public service, and then to be Mirandized, detained and investigated as if I’m a human smuggler. The whole thing was really, really, very surreal,” Todd told the New York Times after her arrest.
When Gov. Greg Abbott announced recently that the agenda for the Texas Legislature’s special session would include “cracking down on illegal human smuggling,” we assume he didn’t have good Samaritans such as Todd in mind. After all, human smuggling is a persistent problem, and has evolved into an even more lucrative enterprise since the Biden administration lifted the pandemic-era health policy known as Title 42, which allowed border agents to quickly send migrants back over the border. The Dallas Morning News reported recently that desperate migrants now pay coyotes as much as $7,000 to cross the border, where they are sometimes abandoned and left to navigate dangerous terrain on their own. In the worst cases, migrants smuggled into the U.S. are kidnapped, sexually assaulted or coerced into prostitution.
The law should be able to distinguish between criminals running smuggling rings and ordinary people who treat migrants with basic dignity and respect. But Texas lawmakers aren’t bothering to make the difference clear in state law, and may soon raise the stakes by requiring 10-year prison sentences.
Two years ago, Abbott signed a new law making it easier to arrest people on smuggling charges, leading to more arrests in some counties. Law enforcement officers no longer need proof of money exchanging hands to charge someone with human smuggling. Had a sheriff’s deputy caught Teresa Todd in her car with three migrants after this law change, she may very well have been charged with a felony.
House Bill 2, passed by the House recently, would raise the stakes for such encounters even higher. The proposal, sponsored by Rep. Ryan Guillen, (R-Rio Grande City), increases the penalty for human smuggling and for operating a “stash house,” where undocumented immigrants can be held in harrowing conditions by smuggling syndicates or even cartels. The bill would impose a mandatory minimum 10-year jail sentence for those convicted of human smuggling, and a five-year sentence for operating a stash house. The bill was sent to the Senate before the House adjourned, and the Senate referred the bill to the Border Security committee for a hearing last week.
The core problem with the legislation is that it relies on the 2021 law that makes no distinction between a criminal smuggling operation that led dozens of migrants to be packed into sweltering train cars and, say, a bus ferrying migrants from a border crossing to a respite center where they can take a bath or eat a meal. Texas law defines a smuggler as “knowingly concealing a person, fleeing from law enforcement, or shielding a person from detection.”
Some policy experts say that the potential for misapplication of the law could be even more far-reaching. How would a law enforcement officer be able to tell the difference between a smuggler and a church bus transporting members who may be undocumented to a retreat? Could someone giving a ride home to their undocumented immigrant nanny or handyman be charged with a felony? With an estimated 1.7 million undocumented immigrants living in Texas, these mundane, everyday excursions could suddenly carry enormous consequences. We reached out to Rep. Guillen to ask these questions but have not heard back.
While we would like to believe that law enforcement officers, prosecutors and judges have the discretion and wherewithal to differentiate between a member of a smuggling syndicate and someone lending a ride to a migrant on the road, attaching a 10-year mandatory minimum sentence to such an offense leaves little margin for error. Any minor abuse of authority or justice in this context could have devastating ramifications, including overwhelming jails in border counties already clogged with migrants detained on minor charges.
HB 2 as written is in line with the enforcement-only, dragnet-style approach to border security that Abbott has promoted as governor, though with limited effectiveness. His $4.4 billion Operation Lone Star has faced withering criticism — not just from human rights advocates, but also from conservatives who see it as a colossal waste of taxpayer money that hasn’t achieved its objectives. Addressing the root causes of human smuggling and bringing the full force of the law against crime rings that abuse migrants is primarily the role of the federal government, but if the state gets involved, it must do so with more nuance than HB 2. We urge senators to vote down the bill in the special session.