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Emergency Management 13


Recommendation

Texas should create new criminal offenses for terrorism, enhance penalties for terrorist acts and amend state law to allow the death penalty for criminals convicted of acts of terrorism.


Summary

On September 17, New York adopted the “Anti-terrorism Act of 2001.” This act:

  • Established six new penal law offenses for persons who commit terrorist acts, make terrorist threats, solicit or provide material support for terrorist acts or hinder the prosecution of terrorists;
  • Enhanced penalties for those who falsely report an incident or place a false bomb; and
  • Extended the death penalty to make persons who intentionally murder others in furtherance of an act of terrorism eligible for the death penalty.

Texas should use New York’s act as a model in developing its own anti-terrorism laws.

There is no crime of terrorism, as such, in the Texas Penal Code. The Penal Code does refer to a crime of “terroristic threat.” Under Texas law, a terroristic threat is made unlawful in the following language: “a person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies, place any person in fear of imminent serious bodily injury, prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place, or cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service.”[1]

This definition fails to capture the scale of terrorism exemplified in the New York Law. The New York Law hits straight at the motivation for terrorism—an offense committed to: (1) intimidate or coerce a civilian population; 2) influence the policy of a unit of government by intimidation or coercion; 3) affect the conduct of a unit of government by murder, assassination or kidnapping. The Texas definition should be revised to include terrorism of the scale exemplified by the events of September 11, and could adapt New York’s definition.

The New York Law also enhanced penalties for existing crimes when committed as part of a scheme of terrorism, including committing the acts, as well as simply providing support for those acts. If the specified offense is a felony in class B, C, D, or E, the punishment is one category higher.[2] The penalties for terroristic threats in Texas are relatively minor; they constitute misdemeanors unless the threat is made to cause impairment or interruption of public communications, public transportation, public water, gas or power supply or other public service, in which case it is a felony. The difference between the New York and Texas laws is that the New York law has a definition of terrorism that addresses events on the same scale as those that occurred on September 11, while Texas law addresses events of more limited scale. Should events similar to those that occurred in New York on September 11 occur in Texas, the state needs to have appropriate penalties available. The Texas Penal Code would have to be amended to adequately address terrorism.


The Death Penalty

Under the Texas Penal Code, persons convicted of murder do not receive the death penalty unless a judge or jury finds aggravated circumstances specified by the Penal Code. The Penal Code’s list of aggravated circumstances does not include terrorism. However, many successfully executed acts of terror could result in the death of more than one person during the “same criminal transaction,” as specified by the Texas capital murder statute. This provision would still leave some murders committed as part of a scheme of terrorism outside the capital murder statute. For example, an act of terrorism, such as the assassination of a political leader or a scheme of terrorism intended to result in the death of many that misfired or was partially obstructed by the authorities might not be included. The only way to ensure that acts of terrorism resulting in death are included in the statute is to include terrorism specifically. It is important to remember that the application of the death penalty is extended to “accomplices” under the Penal Code.[3] The addition of a more specific definition of accomplice related to terrorism may be necessary, and would add categories of offenses for which the death penalty could be received.


Legislative Changes Required:

  • Add a new definition of terrorism to the Penal Code §107(a)(47) and renumber subsequent sections.
  • Add a new Penal Code §7.03 to give a specific definition as to what constitutes “accomplice” conduct with respect to terrorism and renumber subsequent sections.
  • Amend Penal Code §19.03 by adding provision §19.03(a)(9) to define murder in connection with terrorism as capital murder.
  • Amend Penal Code §22.07 to make reference to the new definition of terrorism;
  • Add a new Penal Code §38.08 to address hindering prosecution of terrorists and renumber accordingly.
  • Add a new section of the Penal Code that provides that if the judge or jury determines that a violation of the Penal Code was committed as an act of terrorism, or as part of a scheme of terrorism, the punishment of the offense will be increased to the next highest category of offense.


Fiscal Impact

It is impossible to estimate the number of offenses that might occur that would receive either the death penalty or increased penalties in comparison with those administered under the current Texas Penal Code. Therefore, the increased cost to the state is impossible to estimate. It should be noted that one of the purposes of criminal law, as well as increased penalties, is to deter crime. The deterrence effect is also impossible to estimate.


[1] TEX PEN. CODE ANN. § 22.07.

[2] New York Penal Code §490.25.

[3] TEX. PEN. CODE ANN. §§ 7.01-7.02.