One of the legal elements that the prosecution must prove by proof beyond a reasonable doubt in criminal trespass cases is that the defendant had notice that they were not supposed to be on the property and that they were trespassing. Property owners have several options to provide this legally-mandated notice, including signs, verbal warnings, and purple paint that are unique to Texas law. An experienced criminal defense attorney can carefully review your case to determine if you had sufficient notice or not.
What Is Criminal Trespass in Texas?
To understand the role of notice, you must first understand what trespass means under Texas law. Criminal trespass is considered a property crime in Texas. It occurs when a person enters or remains on someone else’s property without their consent when the person had notice that entry was forbidden or received notice of trespass to leave but didn’t do so.
A few common examples when a person may be charged with criminal trespass in Texas include:
- A person jumps a fence onto someone else’s property.
- A person enters property they know belongs to someone else and doesn’t have permission to go there.
- A person “squats” or illegally occupies another person’s property.
- A person stays on a property after they were told to leave.
- A person enters a property with criminal intent to cause harm there.
- A person carries a handgun in a holster when there is a “firearms prohibited sign.”
This criminal offense is generally charged as a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000. However, the crime can be charged more harshly when:
- The location trespassed upon was a habitation or shelter center, a Superfund site, or a critical infrastructure facility.
- The offense is committed at a residential treatment center.
- The location trespassed upon was an institution of higher learning, and the defendant had previously been convicted of another trespass crime for entering or remaining on or in property of an institution of higher education.
- The defendant carried a deadly weapon during the commission of the offense.
- The offense was committed in the course of committing certain other offenses, such as smuggling others.
What Are the Legal Elements of Criminal Trespass in Texas?
To prove trespassing, the prosecutor must show the following legal elements:
- Specific property: Texas trespassing laws apply to “property of another, including residential land, agricultural land, a recreational vehicle park, a building, a general residential operation operating as a residential treatment center, or an aircraft or other vehicle.”
- Entry: Entry means that a person’s entire body is on the property.
- Notice: The defendant must have had notice that entry was forbidden or received a notice to depart, but failed to do so.
- Lack of consent: The trespasser must not have had the owner’s permission to come onto or remain on their land.
The prosecutor must meet the highest burden of proof that exists in the justice system with proof beyond a reasonable doubt.
The Legal Significance of Notice
Texas Penal Code §30.05 requires “notice” to make trespass criminal. Under the Texas trespass notice law, the act is only criminal if the defendant knew they were not supposed to be on the property. Otherwise, it could be considered an innocent mistake.
How Can Property Owners or Occupiers Provide Notice?
Texas law explicitly states how property owners can notify potential trespassers that they are not allowed on the property. Trespassing notice in Texas can include any of the following:
Oral or Written Communication
The property owner or someone with apparent authority to act for them can provide oral or written communication that it is private property and that no trespassing is allowed. Under this option, if a property owner simply says “No trespassing,” this can be sufficient to provide notice under Texas’ criminal trespass law.
Fencing
Enclosed land can also be sufficient to express that the property should not be intruded upon. Fencing or other enclosures obviously designed to exclude intruders or to contain livestock are enough to establish notice against trespass under Texas law.
No Trespassing Signs
Property signs that indicate trespassing is not permitted can also provide proper notice under Texas’ trespassing law. Regarding the sign placement and sign size, Texas law states that the sign or signs must be posted on the property or at the entrance to the building and be “reasonably likely to come to the attention of intruders.” Texas’ signage laws require that signs indicate entry is forbidden.
Purple Paint Marks
Under state regulations, property owners can also indicate that trespass is not permitted on their property by applying purple paint marks. However, there are specific rules that the property owner must comply with.
Under the criminal trespass purple paint rule, the landowner must use identifying purple paint marks on trees or posts on the property that are:
- Vertical lines
- Not less than eight inches in length and not less than one inch in width
- 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
- Placed at locations that are readily visible to anyone approaching the property
- No more than 100 feet apart on forest land or 1,000 feet apart on other land
Crop Growth
Another way that property owners can provide sufficient notice against trespass is if they have a visible presence on their 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.
How an Experienced Criminal Defense Attorney Can Help with Trespassing Charges
While you may not think that criminal trespass is a big deal, the potential penalties can be life-altering and include possible jail time. As a result, you must take these charges seriously.
An experienced criminal lawyer can help with your case by:
- Reviewing the nature of the charges against you
- Explaining the allegations against you
- Getting your side of the story
- Clearing up misunderstandings with the property owner or prosecutor
- Seeking an early dismissal of charges when the facts call for it
- Negotiating a plea agreement with the prosecutor for reduced charges
- Exploring options for pretrial diversion programs to minimize the impact of a guilty plea
- Identifying defense strategies specific to your case
- Representing your legal interests during court proceedings
Ultimately, your lawyer can advocate for you and protect your legal rights at every stage of the case.
Possible Defenses to Criminal Trespass Charges Based on Defective Notice
You may have various defenses that you can raise in your defense to criminal trespass charges, such as that you were in lawful possession of the property or that you mistakenly believed the property was yours or somewhere you were legally permitted to be. Some defense arguments that you may be able to raise based on lack of notice could include:
No One Said You Couldn’t Be There
If the property owner or someone else did not communicate in any way that you couldn’t be on the property, such as by saying this or posting a notice, you might not have reasonably known you were trespassing.
The Person Giving Notice of Trespass Didn’t Have Apparent Authority to Do So
Only the property owner or someone with “apparent authority” can provide the trespass notification required by law.
There Was No Fence
The property may not have been enclosed with a fence, or the portion of the property you were on may not have had a fence. With no clear land boundaries, you may not have even known you were on someone else’s property.
There Were Problems with the Fence
The fence or enclosure must be of a nature that was “obviously designed to exclude intruders or to contain livestock.” If the fence was too low, purely for decorative purposes, or broken, your lawyer may be able to argue that it did not meet the standard required by law.
There Were No “No Trespassing Signs” or They Were Flawed
You may not have seen any no trespassing signs. Even if they were there, the posted land signs may have been insufficient to meet the notice requirement if they were not “reasonably likely to come to” your attention or did not communicate that entry was forbidden.
There Were Problems with the Purple Paint Marks
Even if land owners used purple marks allowed under state law to provide notice against trespassing, the application of these marks could be insufficient if the marks were:
- Horizontal
- Not lines
- Less than eight inches in length
- Less than one inch in width
- Placed less than three feet from the ground
- Not readily visible to people approaching the property
- Spaced out more than 100 feet on forest land or more than 1,000 feet on other land
The Crops Were Not Under Cultivation Crop Growth
If the property owner is relying on the presence of crops as their notice against trespassing, this could be insufficient if the crops had died or were otherwise not “under cultivation.”
As you can see from the examples above, defense arguments based on lack of notice are very fact-specific. It is best to work with an experienced criminal defense attorney who can investigate your case and carefully determine the defenses they can use in your case that are best targeted to bring about a positive resolution of your case.
Contact an Experienced Criminal Defense Lawyer for Help with Your Case
Have you or a loved one been accused of trespassing? Are you facing criminal trespass charges in Texas? If so, you need an experienced Texas criminal trespass defense lawyer who can mount a strong defense in your case.
The Law Office of Mike Howard is focused 100% on criminal defense. We fight relentlessly to protect the rights and futures of our clients. We can explain more about how we can help when you call for your 30-minute case review. Contact us today to get started.
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