Texas Conservative Coalition Research Institute
Senate Committee on State Affairs
February 26, 2020
Regarding the Committee’s Charge:
Examine opportunities and make recommendations to reduce the profitability of and demand for human trafficking in Texas. Determine ways to increase public awareness on the proliferation of human trafficking, as well as resources for victims and survivors. Review the interaction between local, state, and federal agencies in responding to and prosecuting human trafficking and sex trafficking offenses in Texas' five most populous counties. Make recommendations to ensure law enforcement agencies and prosecutors have the tools necessary to promptly and thoroughly respond to these crimes.
Human trafficking is a serious problem in Texas. At any given time, the estimated number of people being trafficked in Texas is over 300,000. Of this population, an estimated 79,000 are victims of sex trafficking, with the remainder being victims of labor trafficking. In 2018, the federal court districts containing Houston and Dallas ranked first and second, respectively, in terms of defendants being federally-prosecuted for child trafficking. Overall, Texas had more federal prosecutions for trafficking in 2018 (primarily sex trafficking) than any other state.
Trafficking is a crime that warrants special attention because of its sheer scope, the difficulty in apprehending and prosecuting traffickers, and the terrible treatment of its victims. A number of factors make Texas attractive to traffickers, including its large area and population, its international border, and a sizeable migrant population, some of whom are either not fluent in English or do not fully understand the U.S. legal system. Fortunately, Texas policymakers are aware of the problem and over the last few legislative sessions have taken strong steps to combat trafficking. The Legislature created the Texas Human Trafficking Prevention Task Force (the “Task Force”) in 2011 which submits a biennial report with legislative recommendations on how to bolster the fight against trafficking. This testimony summarizes the current state of trafficking in Texas and suggests several steps policymakers and law enforcement can take to better combat it.
II. Overview of Trafficking
The primary criminal statute addressing trafficking is Section 20A of the Penal Code. Under this statute, people commit the offense of trafficking if they knowingly do any of the following:
Traffic another person with the intent that the trafficked person engage in forced labor or services;
Receive a benefit from participating in a venture that involves a trafficked person engaging in forced labor or services;
Traffic another person and, through force, fraud, or coercion, causes the trafficked person to engage in prostitution or prostitution-related offenses such as online promotion of prostitution; or
Receive a benefit from participating in a venture that involves such prostitution or prostitution-related behavior, or engage in sexual conduct with the person trafficked.
Notably, any of the above actions is classified as a separate offense if the trafficked person is a minor.
The Penal Code defines the word “traffic” itself quite broadly: “to transport, entice, recruit, harbor, provide, or otherwise obtain another person.”
Trafficking is generally a second-degree felony. However, the offense may be upgraded to a more serious offense under certain circumstances, as illustrated by Table 1 below.
In addition to these penalty enhancers, human trafficking charges, subject to narrow exceptions, can be “stacked” with other charges; for example, a trafficker who sexually assaults his victim could be charged with the sexual assault as well as human trafficking, and receive punishment for both offenses.
Details about trafficking in Texas can be difficult to ascertain. However, available tools and research shed some light. As its name suggests, the National Human Trafficking Hotline is a service which people all over the country can call to report trafficking-related complaints or concerns. From 2013-2015, calls to the hotline in Texas reported 1,228 suspected cases of trafficking. The Houston, Dallas-Fort Worth, Austin, and San Antonio metropolitan areas accounted for 41.6 percent, 23.6 percent, 7.3 percent, and 6.5 percent of these suspected cases, respectively- a total of 79 percent.
Of the estimated 79,000 victims of sex trafficking in Texas in a given year, the overwhelming majority are young and female. Virtually all of them have had at least some contact with the child welfare system at some point. This estimate is consistent with a 2016 estimate by the National Center for Missing and Exploited Children that 86 percent of missing children nationally who are suspected of being forced into sex work come from the foster care or social services system. Data from federal investigations of trafficking (not limited to Texas) indicates that 83 percent of sex trafficking victims were United States citizens.
Victims of sex trafficking are not always open to working with law enforcement. Some do not recognize that they are victims of a serious crime. Some describe “their experience in commercial sex as positive and without fear,” or express the belief that their trafficker deeply cares about them. Many victims are wary of cooperating with law enforcement due to fears of criminal sanctions or retribution by their traffickers. The Legislative Budget Board has echoed these findings, stating that “Some victims fear law enforcement and do not trust authority figures, due to past experiences or conditioning from their traffickers. Others fear retaliation against themselves or loved ones or shame if the activities in which they have been forced to engage are revealed.” Consistent with these findings, one study has found that only 10 percent of trafficking cases are initiated by victim complaints.
Victims of labor trafficking are heavily over-represented in a handful of industries, such as farm working, cleaning services, construction, kitchen work in restaurants, and landscaping. The status of an illegal immigrant is a significant risk in increasing a person’s chances of being a victim of labor trafficking.
Broadly speaking, targeting trafficking can be done in three ways: apprehending and prosecuting traffickers, steering at-risk people from circumstances which increase the risk they will be trafficked, and educating the state’s population about the dangers and risks of trafficking so that traffickers are deterred by a hostile climate throughout the state.
Texas has passed at least one comprehensive trafficking bill in each of the last several sessions. Each of these bills implemented the legislative recommendations of the Task Force’s report published shortly before the applicable legislative session (or most of those recommendations). The combined effect of these bills has been to attack trafficking in the above three ways. Below is a summary of key pieces of legislation enacted in the 85th and 86th sessions.
Senate Bill 20 (86R) implemented the recommendations of the 2018 report by the Human Trafficking Prevention Task Force. The bill’s numerous changes to the law include:
Providing for community supervision for those convicted of “selling” prostitution (a Class B misdemeanor), provided that the defendant participates in a commercially sexually exploited persons court program, if a program has been established for the county where the defendant lives.
Upgrading the offense of prostitution for “buyers” to a Class A misdemeanor, or if the offender is a repeat offender, a state jail felony.
Making online promotion of prostitution a third degree felony, although penalty enhancers apply in some cases. Online promotion consists of operating a computer service with the intent to promote the prostitution of another person. Penalties would be heightened for people promoting the prostitution of a group of people.
Restricting the admissibility of the sexual history of the victim in prosecuting a person for any of numerous sex-related offenses, including sexual trafficking and compelling prostitution.
House Bill 29 (85R) implemented the recommendations of the 2017 report by the Human Trafficking Prevention Task Force. The bill’s numerous changes to the law include:
Adding a new framework of “Procedures and Evidence” to Chapter 140A of the Civil Practice and Remedies Code (CIVIL RACKETEERING RELATED TO TRAFFICKING OF PERSONS). That framework sets out a procedure for collecting evidence, demands for evidence and compliance with that demand, answering interrogatories, oral testimony, and noncompliance with an evidentiary demand. It specifies that “deliberate noncompliance” with an evidentiary demand (i.e. destroying, concealing, or altering evidence) is a misdemeanor punishable by fine up to $5,000, confinement in county jail for up to one year, or both.
Creating a new requirement for commercial driver’s license training to include training on the recognition and prevention of human trafficking.
Amending the crime of “Continuous Sexual Abuse of Young Child or Children” so that it is an offense “regardless of whether the actor knows the age of the victim at the time of the offense.” It makes the same change to the crime of “Indecency with a Child,” and several other crimes of a sexual nature as they relate to minors.
Upgrading Promotion of Prostitution from a Class A misdemeanor to a state jail felony. If the defendant is a repeat offender, the penalty is upgraded from a state jail felony to a third-degree felony.
Due to the various steps taken by Texas policymakers in the last few years, the state is already addressing much of the interim charge before the Committee.
On the topic of increasing public awareness of trafficking, various state agencies have undertaken campaigns to raise awareness about the prevalence of trafficking in the state. For example, the Texas Department of Transportation (TxDOT) was appropriated $200,000 in fiscal year 2020 to “install signage, at public transportation hubs, including buses, bus stops, trains, train stations, rest areas, and airports, regarding services and assistance available to victims of human trafficking.” The Texas Education Agency has worked with the Texas Human Trafficking Prevention Task Force to train school personnel to identify and assist victims of human trafficking. The Texas Department of Licensing and Regulation posts information about trafficking on its social media accounts. In October of last year, the state began posting anti-child trafficking billboards in 70 markets across the state as part of its “Can You See Me?” campaign. The Office of the Attorney General (OAG) has developed a 52-minute educational video on trafficking- “Be the One”- and made it available to the public and to all state agencies.
The state is also working with private businesses to raise awareness of trafficking. For example, the OAG has worked with Uber to train its employees on how to detect signs indicating a person is being trafficked. The Secretary of State invites businesses to join the coalition Texas Businesses Against Trafficking (TBAT). Any business may join as long as they take certain steps such as participating in public awareness campaigns and training employees to recognize and address human trafficking. As awareness of human trafficking grows, businesses will have even more reason to join TBAT, thereby advertising to consumers that their products and services are not tainted by trafficking.
From 2015 to 2018, the number of suspected trafficking cases in Texas reported to the national hotline more than doubled. While this statistic seems alarming on its face, it is likely due to the increased awareness of the public and victims regarding trafficking, rather than a dramatic increase in trafficking. The phenomenon of increased reporting resulting from greater public awareness was noted by the Task Force in 2012, shortly after Texas began its concerted crackdown on trafficking.
On the subject of increasing awareness of resources for victims and survivors, one of the most challenging aspects of combating trafficking is working with victims to ensure they are given the resources they need to heal. As noted above, many victims of trafficking are reluctant to interact with law enforcement. This reluctance extends beyond dealing with law enforcement. As one study cited by the 2018 Task Force report stated:
Anecdotally, we have evidence that minor and youth victims fall back into victimization situations several times before escaping (if they ever do), and that they make five to seven trips to some sort of facility or service provider before victims have processed enough of their situation to engage in a meaningful recovery. These trips to shelters vary in length, but anecdotally it seems that a minimum stay necessary for any sort of meaningful progress could be around two weeks. Many victims leave much sooner (very likely returning to their victimized circumstance), and some receive services for as much as a year.
Some anti-trafficking commentators argue that additional funding of social services is needed to address the rehabilitation of victims. They argue that additional funding could be directed to nonprofit organizations which work with victims, as well as to the Department of Family and Protective Services for the treatment of foster children with behavioral problems- children who are at risk of ending up victims of trafficking.
The state has made great strides in funding anti-trafficking efforts. In January of last year, Governor Abbott announced $18 million in grants to state, local, public, and private organizations to address trafficking. Of this amount, $8 million will go to services such as emergency shelters and long term residential treatment centers. During the 2020-21 biennium, state government alone will spend approximately $58 million in combating trafficking. With funding in place, the state should strive to make sure victims are aware of resources. As noted above, TxDOT is currently undertaking a campaign that, among other things, alerts people to the resources available to victims of trafficking.
Helping victims obtain the resources they need to heal can have the additional benefit of helping prosecute traffickers. As one study has noted:
Prosecutors overwhelmingly described victim reluctance to testify, or lack of cooperation more generally, as the biggest challenge they faced prosecuting human trafficking cases. Often prosecutors reported that without cooperating victims they could not proceed with a prosecution. Yet, few services existed within prosecutors’ offices or many local communities to provide coordinated and specialized support and assistance to meet the unique needs of human trafficking victims.
Regarding the interaction between local, state, and federal agencies in addressing trafficking in Texas’ five most populous counties, publicly-available information on the subject is sparse. A review of the research on the prosecution of trafficking, however, reveals a recurring theme. The cases federal prosecutors take on tend to involve large trafficking rings. Fortunately, federal prosecutors often have considerable expertise and resources in prosecuting trafficking. Local prosecutors, in contrast, are often overwhelmed or lack the expertise to mount a vigorous prosecution of traffickers.
In 2018, the federal government had 680 active trafficking cases. These cases were spread throughout the country and involved defendants whose alleged criminal actions occurred in years prior to 2018. Two of the rings smashed in 2018 were the notorious Backpage.com and an international ring that trafficked Thai women. Seven defendants were indicated in the Backpage.com matter, which the federal Department of Justice described as “the Internet’s leading forum for prostitution ads,” including ads of minors. In the matter of the trafficked Thai women, 36 defendants plead guilty or were convicted.
Because local prosecutors lack the resources of the federal government, they may shy away from prosecuting cases that have the potential to be difficult or lengthy. As one law enforcement agent stated:
I think [it is important] having a DA [District Attorney], an aggressive DA that’s willing to put a significant amount of time that they need to prosecute one of these [trafficking] cases. Just to draft the criminal complaint…a lengthy complaint, I can only imagine a significant amount of late nights at work not getting paid, not getting compensated in case prep getting ready for that case. I can’t think of many DAs that have that time available, even if they wanted to, with families and other obligations. I know [name of prosecutor] had formally been just kind of the most aggressive prosecutor in the sensitive crimes section of the DA’s office. She still is aggressive; I think she is prosecuting a sexual assault case that might get upgraded to a state level human trafficking case. But for the most part I think there are relatively few DA’s that have the luxury of that time. I can only imagine there’s a significant hours outside of work that they're putting in to case prep.
Given the scope of trafficking in Texas, one would expect there to be a significant number of arrests and prosecutions for it. However, as Table 3 below illustrates, the cases are surprisingly few.
The “Arrests” and “Convictions” by year are not necessarily related; for example, the six convictions in 2008 may have involved only some (or none) of the 22 arrestees in that year. In addition, some of the arrestees in 2017 (and perhaps previous years) undoubtedly did not have their cases resolved at the time the Task Force released its report; thus, the conviction numbers for the later years may be understated. A possible explanation for why the numbers of arrests and convictions are so low is that the alleged offenders may have been arrested and prosecuted for other
offenses that were tied to the trafficking (e.g., sexual assault, indecency with a minor, compelling prostitution).
Indeed, in the debate over Senate Bill 1257 (discussed below), critics of providing the OAG with concurrent jurisdiction over trafficking offenses defended local prosecutors by pointing out that they may be prosecuting offenses which are easier to prove and may even carry more severe penalties in some cases than trafficking.
It may also be the case that smaller counties are less equipped to handle complex prosecutions than larger counties. Only 19 of 254 counties in Texas in 2018 prosecuted trafficking cases. In contrast, Harris County alone filed 266 trafficking and compelling prostitution cases in 2019, although how many of each category is unclear.
Before discussing recommendations to improve Texas’s response to trafficking, a few recent accomplishments by policymakers should be highlighted because of their potential to decrease trafficking once they are fully implemented.
Under some circumstances, victims of trafficking may now receive orders of nondisclosure for offenses they committed while they were being trafficked. In addition, Governor Abbott recently announced the publication of a form by which trafficking victims can apply for pardon for offenses they committed while they were being trafficked. Recognizing that victims of trafficking who committed offenses while in thrall to another person do not deserve harsh penalties will hopefully allay at least some of the concerns that victims have in dealing with law enforcement.
For a long time, the state lacked an adequate data reporting system for trafficking offenses. This lack of data makes policymakers’ job more difficult. House Bill 3800 (86R) calls for a data reporting system to be put in place. When fully implemented in 2021, this system will require law enforcement and district attorneys in the state to submit data to the OAG. The required date includes the offense being investigated, information regarding each person suspected of the offense and each victim, case number associated with the offense, the date and location of each alleged offense, the type of human trafficking involved (forced labor, sexual activities, child trafficking, etc.), information regarding any victims’ service organization the victim was referred to, and the disposition of the investigation. The last two points are especially important because they will help policymakers determine how many victims are receiving help and how trafficking cases may be prosecuted as other crimes.
The anti-trafficking initiatives of the state have multiplied in recent years as policymakers have made a determined effort to crack down on traffickers. The creation of the State Human Trafficking Prevention Coordinating Council as a result of SB 72 (86R) will ensure that the state coordinates anti-trafficking activities among its various agencies and will ensure that state appropriations are used in the most efficient manner.
In the 87th session, the Legislature should consider the following reforms:
Provide the OAG with concurrent jurisdiction over trafficking cases. The most important change Texas can make in its anti-trafficking approach is to give the OAG the power to prosecute trafficking crimes. In Texas, most criminal prosecutions are the responsibility of local prosecutors, although the OAG and the federal governments have the power to prosecute some crimes under certain circumstances. It is clear that Texas has strong punishments in place for traffickers and growing public awareness of the problem of trafficking. Nevertheless, prosecutions for trafficking are still surprisingly uncommon. Local prosecutors declining to bring trafficking charges may lack time, resources, and anti-trafficking expertise. The OAG, in contrast, created a specialized unit in 2016 that is devoted to fighting trafficking- theHuman Trafficking and Transnational/Organized Crime Section. Among other actions, this unit played a key role in coordinating law enforcement efforts with the federal government against Backpage.com. As the Legislative Budget Board has noted, “[t]he Human Trafficking and Transnational/Organized Crime Section has prosecutorial expertise and resources for human-trafficking cases that some local prosecutors may lack, but the circumstances within which it can participate in these cases are limited.” Currently, local prosecutors can, but are not required to, request assistance from the OAG on trafficking cases.
An attempt in the 86th session was made to provide the OAG with concurrent jurisdiction with local prosecutors in trafficking cases, with the qualifier that the OAG would have concurrent jurisdiction over trafficking cases confined to a single county only if the local prosecutor consented or first refused to prosecute the case. Unfortunately, this legislation (SB 1257/HB 3979) was not enacted into law. The Legislature should reconsider it in the 87th session.
Eliminate the possibility of parole for anyone convicted of trafficking a minor. While Texas laws against trafficking already provide significant criminal penalties, it would be appropriate for the law to provide even stiffer penalties for the evil of trafficking children.