The Texas Penal Code defines criminal trespass as entering or remaining on the property of another person. The offender must not have effective consent of the property owner. Further, the offender must have had notice that entry was forbidden or received notice to leave but failed to do so. Property of another party can include residential land, agricultural land, a recreational vehicle park, a building, a general residential operation, such as a residential treatment center, an aircraft or vehicle.
Meaning of Notice Under Texas Law
The term “notice” means oral or written communication by the owner or someone with apparent authority to act for the owner, such as a property manager or other agent. Notice can be in the form of fencing or another enclosure that is obviously designed to exclude intruders or to contain livestock. Notice can also be a sign posted on the property or at the entrance to the building that is reasonably likely to come to the attention of intruders. Signs must indicate that entry on the property is forbidden.
In a forest, notice can be purple paint marks on trees or posts on the property, if the marks consist of vertical lines at least 8 inches long and 1 inch wide, with the bottom of the mark not less than 3 feet from the ground or more than 5 feet from the ground. These purple marks must be placed at locations readily visible to any person approaching the property but no more than 100 feet apart on forest land or 1,000 feet apart on land other than forest land.
Forest land is land on which the trees are potentially valuable for timber products. Having a visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry also serves as notice.
Penalties Under Criminal Trespass Laws
The state of Texas typically charges criminal trespass as a Class C, Class B or Class A misdemeanor. The penalties for these offenses are: a fine up to $500 for a Class C misdemeanor: jail time up to 180 days and a fine up to $2,000 for a Class B misdemeanor; and jail time up to one year and a fine up to $4,000 for a Class A misdemeanor. The state of Texas usually charges criminal trespass as a Class B misdemeanor if there are no aggravating or mitigating factors. An example of an aggravating factor would be the offender carrying a firearm.
When a trespass is on agricultural land, and the trespasser is apprehended within 100 feet of the boundary of the land, the state may charge the offense as a Class C misdemeanor. The state may also charge the offense as a Class C misdemeanor if the trespass is on residential land and within 100 feet of a protected freshwater area, such as a navigable stream.
The state may charge criminal trespass as a Class A misdemeanor if the offender committed the trespass in a habitation, shelter center or on a Superfund site, or within a critical infrastructure facility like a refinery. The state may charge criminal trespass as a Class A misdemeanor if the trespasser carried a deadly weapon while they were trespassing.
Using Firearms in Self-defense
The Texas Penal Code provides that a property owner or other person who is lawfully on the property may use force, but not deadly force, to stop an act of criminal trespass. This means a person may not shoot a trespasser. There are exceptions to this rule, but the person using a firearm must not shoot the trespasser solely to prevent an act of trespass.
In order to establish a justification for shooting a trespasser, the person shooting must reasonably believe that the conduct is immediately necessary to avoid imminent harm, the urgency of avoiding the harm clearly outweighs the harm sought to be prevented, and there is no legislative purpose to exclude the justification for the shooting. An example of a legislative purpose to exclude the justification is the state law that a firefighter is allowed to enter private property to put out a fire.
Justification for Using Force Against a Trespasser
A person is justified in using force against a trespasser to the degree they reasonably believe the force is immediately necessary to protect them or another person against the trespasser’s use of unlawful force. For example, if a property owner saw a trespasser carrying a firearm walk onto their property and within 10 feet of them, pointing the gun directly at them, the property owner would be justified in shooting the trespasser. They would have been acting in self-defense.
However, if a property owner saw a trespasser walk onto their property, and the trespasser was approximately three city blocks away from them, the property owner would be unlikely to be justified in shooting the trespasser. This is because the trespasser did not pose an immediate threat of harm to the property owner.
Violation of Restraining Order
When an offender engages in criminal trespass and violates a protective order or restraining order, they may face one or more trespass charges for the trespassing incident. They will also face charges for the violation of the protective order or restraining order. The judge can choose to run an offender’s sentences concurrently, meaning the offender serves time for the two offenses at the same time, or consecutively, meaning the offender serves one sentence first and then the other.
Criminal Trespass Affidavit Program
A property owner or tenant can work with a city police department or county sheriff’s office to reduce the likelihood of criminal trespass on their property. To initiate the program, the property owner or the owner’s agent should complete a criminal trespass affidavit and an authorization list. The authorization list provides the names of people who are allowed to be on the property.
The property owner or agent should submit the signed forms to the local law enforcement office, such as the Dallas Police Department and then post no-trespassing signs in prominent locations around the property. The law enforcement officers will check on their property during the normal course of patrolling or while answering a call for police service to the location. The owner or agent is required to provide a letter updating the authorization list once every two years or when the names of authorized people change. Failure to update the authorization list or submit an updated agreement form may result in removal from the program.
- Texas Penal Code: Chapter 12, Punishments
- Texas Penal Code: Chapter 30, Burglary and Criminal Trespass
- Texas Parks and Wildlife: Criminal Trespass
- Office of District Attorney, Harris County: Domestic Violence Division
- Texas Penal Code: Chapter 9, Justification Excluding Criminal Responsibility
- Dallas Police Department: Criminal Trespass Affidavit
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.