Comment

The statutes concerning organized criminal activity use the terms and concepts of “combinations” and “conspiracies” in an unclear manner. Under Tex. Penal Code § 71.02(a), the offense can be committed by conspiring to commit a covered crime. This must be done either “as a member of a criminal street gang” or “with the intent to establish, maintain, or participate in a combination or in the profits of a combination.” “Combination” is defined in Tex. Penal Code § 71.01(a) (requiring, among other things, collaboration of three or more persons) and “[c]onspires to commit” in Tex. Penal Code § 71.01(b) (requiring, among other things, agreement with one or more persons).

Some ways of committing the offense involve only one of the terms, as when the state maintains the defendant conspired to commit a covered offense as a member of a criminal street gang. Other ways involve both, as when the state maintains the defendant conspired to commit a covered offense with the intent to establish, maintain, or participate in a combination.

In the second category of cases, the state must, of course, prove the conspiracy occurred and the defendant was a party to the agreement constituting the conspiracy. With regard to the combination, in contrast, the state need only prove the defendant intended—apparently at the time of the agreement—to establish, maintain, or participate in a combination. It need not prove the defendant was a collaborating member of the combination. Cf. Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002) (“[A] person need not be a member of a combination to be guilty of engaging in organized criminal activity.”). Perhaps—at least in some situations—it need not even prove that a combination actually existed; evidence may, for example, show a defendant intended the covered offense as a preliminary step in establishing a combination but establishment of the combination was never completed.

If the state’s theory is that the defendant’s liability is based on conspiring (rather than committing), the conspiracy must be one to commit a covered offense. A combination requires collaboration in carrying on “criminal activities,” but the criminal activities need not be related to covered offenses. Strangely, if the state’s theory is that the defendant acted with intent to participate in the profits of a combination, those profits—given the definition in Tex. Penal Code § 71.01(c)—must be proceeds from a covered offense.

Some provisions of chapter 71 suggest the legislature did not consistently use and distinguish between the terms combinations and conspiracies. For example, the renunciation defense provided for in Tex. Penal Code § 71.05(a) requires proof that the defendant “withdrew from the combination.” (emphasis added). The same is true of the quasi-defense proving for a reduction in punishment under sections 71.02(d) and 71.05(c). But no version of the offense requires the defendant have joined the combination. In some situations, the state must show the defendant joined the conspiracy. Should the defenses be applied to the latter situations?

Tex. Penal Code § 71.03 provides that certain situations do not establish a defense. Sections 71.03(1), (2) and (4) refer to “the combination” but make no reference to the conspiracy. Sections 71.03(1) and (2) resemble provisions in the conspiracy statute, section 15.03(c), which suggests they may have been intended to apply to conspiracy insofar as it is incorporated into section 71.02. But it is difficult to read them as applicable to the conspiracy aspects of organized criminal activity given their phraseology.

Despite these problems, the statutory language is clear and the instructions are drafted in the statutory terminology. The Committee did not believe it could recommend deviating from the statutory language, however inconsistent that language might be.