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kidnapping, Abduction, and Unlawful Restraint: Texas Kidnapping Charges
In Texas, kidnapping charges can be filed against someone based on either federal statute or Texas law. Both federal prosecutors, acting through the local branch of the Office of the United States’ Attorney General, as well as state prosecutors acting through the local district attorney’s office (such as the Office of the District Attorney for Dallas County, Tarrant County, Collin County, etc.) can file charges based upon situations where someone has taken another person against their will and without their approval and placed that person in a confined area where they are not free to leave.
Kidnapping is illegal under federal law and state law, and both federal arrests and Texas arrests are possible in many kidnapping situations. Furthermore, federal law extends to areas where state law cannot in kidnapping cases: for example, Congress has passed the International Parental Kidnapping Act to deal with parents who take children without authority and in violation of court order across national borders. Another example is the Lindberg Law, which allows federal agents to aid in the pursuit of kidnapping cases once it is established that the kidnapped person has been moved across the state lines.
Therefore, kidnapping cases can quickly escalate into complicated fact patterns with both federal and state investigations pursuing possible charges based upon state and federal law. Texas kidnapping lawyers, accordingly, need to be experienced and familiar with both sets of applicable laws as well as both sets of prosecutors (Assistant United States Attorney, District Attorney) that may be overseeing investigations and filing charges.
Examples of Kidnapping, Abduction, and Unlawful Restraint in Texas Today
One person taking another person without their okay happens in Texas much more often than people realize. Examples of kidnapping, abduction, or unlawful restraint include:
- Parents taking their children without legal authority to do so (for example, in violation of child custody orders);
- Strangers taking victims and holding them for ransom (this is happening with greater frequency in Texas counties close to the Texas-Mexico border and is much more common in Mexico);
- Workers held for ransom in order to take advantage of employers’ kidnapping insurance policies (as for example in the Meg Ryan – Russell Crowe movie, “Body of Proof”); or
- Couples who are having problems or who have split up having one spouse (or boyfriend/girlfriend) take the other spouse without their permission, not for ransom but in an attempt to resolve the conflict and resume the relationship.
Texas kidnapping cases today do not always involve the more traditional idea of kidnapping cases that existed in past years, where people were held for profit (ransom). Today in Dallas County and other parts of Texas, for example, it is becoming almost a routine occurrence for parents to face allegations of parental kidnapping (as well as child endangerment charges) when dealing with combative ex-spouses over child custody issues. Kidnapping charges, and having criminal lawyers experienced in kidnapping defenses, are more commonplace in Texas courts today than much of the public assumes to be the case.
Kidnapping and Aggravated Kidnapping in Texas
Kidnapping and aggravated kidnapping are two separate charges under Texas law and the two crimes carry different sentences upon conviction. They share two key factors: the unlawful restraint and abduction of someone. Both are considered felony charges; however, aggravated kidnapping carries much more serious punishment with the possibility of 99 years’ incarceration.
Kidnapping is a third degree felony in Texas, which carries as a general rule of punishment $10,000 in maximum fines and 2 to 10 years in time behind bars. Aggravated kidnapping can be either a first or second degree felony, and a 1st degree felony carries $10,000 in maximum fine and jail time of anywhere between 5 years and essentially life imprisonment. (Aggravated kidnapping can be considered at the lesser charge of a 2nd degree felony if the defendant proves that he voluntarily released the kidnapped person in a safe place.)
Kidnapping versus Unlawful Restraint in Texas
It is also possible to face charges of unlawful restraint without the charge of kidnapping. This can be a critical difference in pre-charge negotiations between a Dallas kidnapping lawyer and a local prosecutor as well as in plea negotiations after kidnapping charges have been filed against the defendant.
Unlawful restraint is a misdemeanor, while kidnapping is a felony. Therefore, kidnapping defense lawyers will fiercely focus upon the element of abduction in the review of the state’s evidence against their client, the defendant, to determine what (if any) proof exists to show that the defendant have the means to restrain the victim and the intent to do so in order to curtail their freedom by either keeping them in a hiding place or threatening them with deadly force.
Unlawful Restraint under the Texas Penal Code
It is against the law, and in violation of Texas Penal Code Section 20.02 to intentionally or knowingly restrain someone else. Section 20.01 of the Texas Penal Code defines restraint as:
to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person.
Restraint is “without consent” if it is accomplished by:
(A) force, intimidation, or deception; or
(B) any means, including acquiescence of the victim, if:
(i) the victim is a child who is less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement; or
(ii) the victim is a child who is 14 years of age or older and younger than 17 years of age, the victim is taken outside of the state and outside a 120-mile radius from the victim’s residence, and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement.
Texas Penal Code Section 20.01(2) distinguishes restraint from abduction. “Abduction” means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found; or
(B) using or threatening to use deadly force.
Proof of Abduction in Kidnapping Cases
The ability of the prosecutor to prove the element of abduction is key in establishing an unlawful restraint situation as a felony kidnapping. If abduction is shown by sufficient evidence, then the next issue will be whether or not the kidnapping was “aggravated” and therefore worthy of more serious sentencing.
If someone intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the abduction, then it becomes an “aggravated kidnapping” and the highest level of felony charge.
Aggravated kidnapping (as defined in Texas Penal Code §20.04) involves intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.
Defenses in Kidnapping Cases – The Need for an Experienced Defense Lawyer
Experienced criminal defense attorneys are important to those defendants facing a kidnapping charge because felony punishments with significant jail time are involved. Having a kidnapping lawyer advocating on your behalf as soon as possible in a situation where you are being threatened with arrest for kidnapping or restraint of another can be extremely important – even if you have a family lawyer already involved, or you have had labor law counsel through your workplace.
Why? For those facing kidnapping charges, the best criminal defense strategy may occur very early in the case, where their kidnapping lawyer negotiates with the prosecutor to keep the charges from being felony kidnapping in the first place, with the district attorney initially filing a lesser charge such as unlawful restraint (a misdemeanor). The best circumstance for a kidnapping charge is to never have one filed in the first place.
Additionally, experienced kidnapping lawyers know to advance defenses found in the Texas Penal Code itself for various kidnapping charges. For instance, in Texas Penal Code Section20.03, the following defenses are listed for a potential kidnapping charge – and if the defense can show facts to support these affirmative defense factors, then the kidnapping charges cannot hold:
(1) the abduction was not coupled with intent to use or to threaten to use deadly force;
(2) the actor was a relative of the person abducted; and
(3) the actor’s sole intent was to assume lawful control of the victim.
Finally, kidnapping and unlawful restraint cases are emotionally fraught circumstances where judges and juries may feel emotionally swayed by certain situations. Mothers trying to spend time with their children at the risk of arrest may receive one kind of emotional response; strangers holding a man for ransom under threat of bodily harm or death will have another kind of emotional impact. Kidnapping lawyers must mount defenses based upon legal strategies that are unique to these situations, and having experienced lawyers on these kinds of prosecutions is important.
Texas Kidnapping Defense Lawyer
As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, Board Certified Criminal Lawyer Michael Lowe not only brings his years of experience to each case, he also dedicates 100% of his law practice to the defense of those being accused of a crime under Texas or federal law.
With a streamlined law firm that coordinates its efforts to give each client the personal attention that they need and deserve when fighting against the government and the possibility of jail time, fines, permanent marks on public records, prison incarceration, loss of licensure, loss of jobs, absence from family events and everyday living, Michael Lowe maintains an efficient and excellent criminal trial practice that is ready to help you or your loved ones in your defense against criminal charges from pre-arrest investigation to post-trial appeals.
To discuss your case in a free and completely confidential consultation, please contact Dallas Board Certified Criminal Lawyer Michael Lowe today.