trespass

Criminal Trespass

Criminal Trespass is one of those crimes you might accidentally commit. One moment you’re in a place you think you’re allowed to be and the next you’re in handcuffs. Because unlike other charges, Criminal Trespass does not require you to intentionally, knowingly, or recklessly do what they allege you did. All that matters is that you were there. And whether the state can prove it.

Let’s break this down.

Normally we start by looking at the statute (Texas Penal Code § 30.05. Criminal Trespass, you can read it by clicking here), but this one is rather long so we’ll summarize and then go straight to defining some of the terms used:

SUMMARY

A person commits criminal trespass if they enter or remain on or in property of another and the person (1) had notice that the entry was forbidden, or (2) received notice to leave but failed to do so.

ENTRY

Entering, for the purposes of criminal trespass, means the entire body (Section (b)(1)).

  • Example: If you are standing on the public side of a fence and you stick your hand or a finger in an opening of the fence on to the private side of the fence, that is probably not trespassing. But, obviously, if you hop that fence and your entire body in now on the private side on the fence then that is likely criminal trespassing.

NOTICE

There are a few things that the law considers “notice”:

  • Fences
    • Fences or other enclosures that are obviously designed to exclude intruders or to contain livestock are considered notice that entry is forbidden.
  • Oral or written communication
    • Oral or written communication by the owner or someone with apparent authority to act for the owner counts as a notice;
    • This means that if you enter a property and someone says “get off my property” that may be enough notice. If you refuse to get off their property, that could be charged as criminal trespass.
  • Signs
    • A sign can be notice if it is posted at the entry of the building where someone is “reasonably likely” to see it and know that entry is forbidden.
  • Purple paint marks on trees or posts
    • Consistent paint markings across a piece of land are considered notice.
    • This one has very specific requirements. The markings must be:
      • (i) vertical lines of not less than eight inches in length and not less than one inch in width;
      • (ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground;  and
      • (iii) placed at locations that are readily visible to any person approaching the property and no more than:
        • (a) 100 feet apart on forest land;  or
        • (b) 1,000 feet apart on land other than forest land
  • Obvious farm land
    • Land that is visibly being used for crops grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry qualifies as having notice that entry is forbidden.

Punishment Level

Criminal Trespass is generally a Class B Misdemeanor. That makes it punishable by a $0 to $2,000 fine and 0 to 180 days in county jail. But of course the law is rarely that simple and there are some exceptions.

Criminal Trespass is a Class C misdemeanor if it occurs on agricultural land and within 100 feet of the boundary of the land or on residential land and within 100 feet of a protected freshwater area.

Criminal Trespass is a Class A misdemeanor if:

  • It occurs in a habitation or shelter center, on a superfund site or on (or in) a critical infrastructure facility
  • It occurs on (or in) the property of an institution of higher education* and the person already been convicted of trespass on higher education property
  • The person is carrying a deadly weapon during the commission of the offense

*if it is proven that the alleged trespass happened during a protest covered by the first amendment of the constitution then it is a class B misdemeanor.

Defenses

There are several defenses for Criminal Trespass helpfully provided by the statute. If it is your job to respond to emergencies (think a firefighter or paramedic), that could be used as a defense. If you are an employee of some sort of utility company (electric, plumbing, etc) and thought you had permission to perform your duty, that could be used as a defense as well. Or if you were accused of criminal trespass with a firearm, you could use a defense to try and mitigate the potential punishment by claiming or proving that you were lawfully carrying that firearm.

As always, it is a defense to criminal trespass if you can negate (or disprove) any of the required elements of the crime. For example, maybe there wasn’t notice that entry was forbidden. Or, as mentioned above, maybe you didn’t enter with your entire body. Maybe you actually had permission to be there.

Any criminal charge that does not have an intention requirement, meaning that the state does not have to prove that you committed your alleged misdeeds intentionally, knowingly, or recklessly, can get real sticky real fast. Keep a sharp eye out for notices that you’re not supposed to be somewhere and if you do get charged with Criminal Trespass, make sure you’ve got a good lawyer on your side.

It just so happens that we offer free consultations. So if you find yourself on the wrong side of the law’s fence, get in touch by clicking here.

Stay safe, San Antonio!

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