Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective
Posted on by Michael Lowe.
On September 21, 2022, the Office of Texas Governor Greg Abbott issued a press release with its accompanying Executive Order GA-42 and the news that, at least in the State of Texas, Mexican cartels are now considered to be “terrorist organizations” by state law enforcement.
In the release, Governor Abbott explains that the growing market in the illegal drug trafficking of fentanyl, both nationally and within the Lone Star State, was his motivation:
“Fentanyl is a clandestine killer, and Texans are falling victim to the Mexican cartels that are producing it. Cartels are terrorists, and it’s time we treated them that way. In fact, more Americans died from fentanyl poisoning in the past year than all terrorist attacks across the globe in the past 100 years. In order to save our country, particularly our next generation, we must do more to get fentanyl off our streets.”
What does this mean, from a criminal defense perspective? Consider the following.
1. The New Executive Order
First, a consideration of Executive Order GA-42 (“EO GA-42”) itself, entitled “Relating to designation of Mexican drug cartels as foreign terrorist organizations.”
In support of the action being undertaken by the Governor, the following statements are provided:
- Mexican drug cartels are responsible for trafficking hundreds of millions of lethal doses of fentanyl into Texas and the United States;
- Over 1,600 Texans were fatally poisoned by drugs containing fentanyl in 2021, representing an increase of more than 680 percent since 2018, and fentanyl’s death toll continues to rise in 2022;
- Mexican drug cartels also smuggle humans across the Texas-Mexico border and subject them to sexual assault, human trafficking, assault, extortion, and other dehumanizing, violent, and heinous acts;
- Deadly violence is associated with the Mexican drug cartels, who are fighting for the territory needed to expand their influence in the United States;
- A disaster proclamation on May 31, 2021, which has been amended and renewed in each subsequent month effective through today, certifying under Section 418.014 of the Texas Government Code that the surge of individuals unlawfully crossing the Texas-Mexico border posed an ongoing and imminent threat of disaster for a number of Texas counties and for all state agencies affected by this disaster;
- Through Operation Lone Star, I have deployed thousands of brave men and women from the Texas National Guard and the Texas Department of Public Safety to secure the border, and they have seized over 336 million lethal doses of fentanyl trafficked through Texas since March 2021;
- The head of the federal Drug Enforcement Administration has declared that “[f]entanyl is the single deadliest drug threat our nation has ever encountered,” and that the “[f]entanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel”;
- Even though President Biden has declared a national emergency due to “trafficking into the United States of illicit drugs, including fentanyl and other synthetic opioids,” his Administration still has not designated the Mexican drug cartels as foreign terrorist organizations under Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189; and
- Designating the Mexican drug cartels as foreign terrorist organizations will target them for enhanced apprehension, prosecution, and disruption, while heightening awareness of their deadly activities for our citizens and the international community.
It is clear that the Texas governor’s focus here is three-fold insofar as violations of state criminal laws. From a criminal defense standpoint, state and local arrests will likely increase – and in a significant amount – for these three felony crimes defined by the Texas Penal Code.
Drug Trafficking Crimes
First, there is the desire to curtail the illegal drug trafficking involved with rapidly growing worldwide fentanyl operations as they apply to Texas and the United States. For more, read our earlier discussions in:
- Texas Drug Crimes: Criminal Defense Overview
- Carfentanil, Fentanyl Analogues, Heroin, China, the Police, and Felony Arrests
- Fentanyl and Heroin Here in Dallas: Dangers of Arrest and More
- Methamphetamine in Dallas and North Texas: Expect More Felony Meth Arrests
- Synthetic Drug Arrests in Texas: Police Focusing on K2 and Spice in Dallas.
Human Smuggling and Homicide Crimes
Along with drug trafficking, the Texas Governor’s focus is also upon cartel human smuggling (trafficking) operations as well as homicides / capital murder arising in cartel-related turf wars. To learn more about these two types of state criminal charges, read:
- Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2
- Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2
- Child Sex Trafficking Arrest in Texas: Criminal Defense Overview
- Manslaughter: When Killing Someone Does Not Mean Murder – Texas Penal Code §19.04
- Killings in Dallas: Felony Charges When Someone Kills in Texas.
A. EO GA-42: Official Designation of Cartels as Terrorist Organizations
Referencing his power and authority under the Texas Constitution and state statutes, the Governor formally and officially designates as “foreign terrorist organizations” the following groups:
- The Sinaloa Cartel;
- The Jalisco New Generation Cartel; and
- Any Similarly Situated Mexican Drug Cartels who may be identified in subsequent proclamations.
Of note, the Governor has his eyes specifically upon two organizations: the Sinaloa Cartel and the Jalisco New Generation Cartel. Other cartels may be named in the future, but these two organizations are the targets right now.
It is critical to note that the State of Texas has no special criminal statutes defining or outlawing terrorism or “foreign terrorist organizations.” That happens under federal law (as discussed below).
As for these two named cartels, of course there are other established and known Mexican cartels operating in Texas. See, e.g., Illegal Drug Trafficking Business Operations in Texas: Federal Investigations into the Texas Mexican Mafia aka La Eme or Mexikanemi.
Why is Governor Abbott labelling these two enterprises as terrorist organizations? They are the two major cartels operating in the State of Texas.
The Brookings Institute explains that the Sinaloa Cartel and the Cartel Jalisco Nueva-Generación (“CJNG”) are the two largest cartels in Mexico. Read, “How the Sinaloa Cartel Rules,” written by Vanda Felbab-Brown for Mexico Today and published by Brookings on April 4, 2022. Most will recognize the former CEO of the Sinaloa Cartel, Joaquin “El Chapo” Guzman Loera, from his notorious escape and recapture back in 2016. Read, “Timeline of El Chapo’s Major Escapes and Captures,” written by Tessa Berenson and published by Time Magazine on January 8, 2016.
Meanwhile, CJNG has been labelled as “Mexico’s foremost criminal threat,” as a cartel that has evolved with leadership from earlier known groups, such as the Torcidos and the Milenio Cartel. With a reputation for violence, it is an international enterprise networking throughout most of Mexico as well as Central America, China, Australia, Canada, Southeast Asia, and the United States. Read, “Jalisco Cartel New Generation (CJNG),” by InsightCrime on July 8, 2020.
B. EO GA-42: New Marching Orders for DPS
Under the September 2022 Executive Order by Governor Abbott, the Texas Department of Public Safety (“DPS”) is given new authority and instructions to act. The DPS is ordered by the Governor to do the following:
- Establish a Mexican Cartel Division within the Texas Fusion Center to collect and analyze intelligence that will enable further apprehension, prosecution, and disruption of these foreign terrorist organizations;
- Identify, arrest, and impede the gangs in Texas that support the drug and human smuggling operations of these foreign terrorist organizations;
- Conduct multi-jurisdictional investigations of foreign terrorist organizations operating in Texas to support criminal prosecutions here and in other States;
- Conduct multi-jurisdictional investigations of transnational and Texas-based gangs that support the smuggling operations of foreign terrorist organizations;
- Target, seize, and dismantle the infrastructure, assets, vehicles, and buildings used by foreign terrorist organizations to smuggle drugs and people into and throughout Texas;
- Enhance southbound criminal interdiction operations resulting in the seizure of bulk cash and other assets being smuggled into Mexico; and
- Intensify efforts under Operation Lone Star focused on detecting an interdicting transnational criminal activity between the ports of entry.
The Governor’s directives will enable law enforcement at the Department of Public Safety to build cases independently and together with other agencies in “multi-jurisdictional investigations” against members of these two cartels, the Sinaloa and the CJNG, and members of their gang-affiliates. These files will proceed to state prosecutors where state felony charges can bring severe and widespread punishments upon conviction.
Of course, this is the goal of EO GA-42: convictions and sentencings that take out key members of these organizations, crippling their leadership and grabbing their financial resources in order to remove fentanyl from the Texas marketplace along with decreasing human trafficking here and lowering the current murder rates.
Criminal defense lawyers expect to see cases being brought pursuant to state criminal law for things like (1) racketeering / organized crime activity; (2) promotion of prostitution or compelling prostitution; (3) money laundering; and more. Whenever possible, enhancement will be sought based upon proving the connection of the accused to membership in the criminal organization.
For more, read:
- What are Racketeering Charges? Organized Crime, Gangs and Cartels, and Overcharging RICO
- Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution
- Gang Crime Charges: Increasing Prosecution of Gang-Related Crimes in Texas
- Organized Criminal Activity Charges Under Texas Penal Code §71.02
- North Texas Banks, Drug Cartels, and Money Laundering in Dallas
- Drug Cartels in North Texas: Big Business and Felony Crimes
- Money Laundering and Texas Drug Cartels.
Forfeiture should be on the rise, too. State law enforcement has the ability to stop an individual and if there is probable cause, to search and to seize property as well as make an arrest. Under state forfeiture laws, assets can be taken by the State of Texas long before there has been any trial or conviction.
To learn more about forfeiture, see:
- Latest Forfeiture Ruling by SCOTUS: What Does It Mean for Texas Criminal Defense?
- Forfeiture Victory for Police: They Can Seize and Keep Assets Even In an Illegal Search Says Texas Supreme Court
- Texas Needs New Asset Forfeiture Law Reform: Spread the Word
- Dallas D.A. Forfeiture Funds: The Temptation of All That Stuff and the Craig Watkins Scandal.
Of note: within weeks of the Governor’s edict, news reports were that Texas law enforcement in its Operation Lone Star Task Force conducted 110 traffic stops within a two-day period in Goliad County. It is reported that 26 arrests were made. Read, “Operation Lone Star Task Force conducted 110 traffic stops over 48-hours,” written by Tamara Diaz and published by the Victoria Advocate on October 10, 2022.
2. Letter to President Biden and Vice-President Harris
In tandem with EO GA-42, the Governor wrote to President Joe Biden and Vice President Kamala Harris and provided access to the correspondence with the press release. Reiterating his request of April 2021, the Governor requests a federal designation of the Sinaloa Cartel, the Jalisco New Generation Cartel, and any similarly situated Mexican drug cartels as “foreign terrorist organizations” as that is defined in 8 U.S.C. §1189.
Pursuant to 8 U.S.C. §1189, a federal designation of “foreign terrorist organization” means that the organization: (1) engages in (a) terrorist activity (8 U.S.C. §1182(a)(3)(B)) or (b) terrorism ( 22 U.S.C. §2656f(d)(2)), or (2) retains the capability and intent to engage in terrorist activity or terrorism, (8 USC § 1182(a)(3)), either which threaten the security of United States nationals or the national security of the United States.
The Governor references the “scourge of fentanyl” and argues two things:
- First, that with federal action, “[c]artel assets could then be frozen, weakening the financial support of trafficking activities,” and
- Second, there would then be enhanced criminal sentences available for federal drug trafficking convictions for individuals proven to fund these Mexican cartels as foreign terrorist organizations.
To date, the White House has not accepted the Texas Governor’s invitation to designate any Mexican cartel as a “foreign terrorist organization.” If this should happen, even more investigations, arrests, asset seizures, convictions, and enhanced prison terms are predicted by criminal defense lawyers. Federal prosecutors (AUSAs) are particularly zealous in their pursuit of cartel matters and federal sentencing guidelines can result in harsher punishments.
For more, read:
- Mandatory Minimum Penalties in Federal Sentencing
- Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law
- Guns and Drug Trafficking: Firearms and Mandatory Minimum Sentences under Federal Law.
Importance of Aggressive Criminal Defense for Cartel Charges
For anyone in Texas who is investigated, arrested, or charged with any type of Texas felony crime where the state prosecutor alleges cartel involvement, particularly that of the Sinaloa or Jalisco New Generation Cartel, it is vital that the accused and their loved ones understand the force with which state law enforcement is seeking to diminish cartel operations through the criminal justice process.
Plea negotiations, from plea deals to the negotiation of charges or counts, will take on a different tone and tenor because of EO GA-42. Gang members must understand this impacts them, as well, should they be tied to either of the Governor’s named “foreign terrorist organizations.”
Serious felonies under Texas criminal law can result in long terms of incarceration, or life imprisonment. Some may include the death sentence, such as certain homicide charges, as Texas remains a capital punishment state. Having an experienced, aggressive criminal defense advocate in these matters is imperative.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “TOP 10 THINGS TO KNOW WHEN DEFENDING TEXAS CHARGES OF MANUFACTURE OR DELIVERY OF AN ILLEGAL SUBSTANCE.”
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