Texas Criminal Trespass and “Notice to Depart”

By March 8, 2018October 15th, 2021Criminal Trespass

How To Get Your Criminal Trespass Dismissed! What Must The Government Prove!

Updated October 5, 2021; Original Post: March 8, 2018 Criminal Trespass

If you have been charged with criminal trespass in Texas, it’s important to know the role that “notice to depart” plays in your case. In this post, we’ll detail the law, the associated penalties, and what defenses you can use to fight your charges.

Criminal Trespass Definition in Texas

Criminal trespass is a misdemeanor crime that can arise from several different scenarios in Texas. At its essence, criminal trespass is being in a place where you are not authorized to be.

Criminal trespass is defined in the Texas statutes as when an individual:

“…enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.”

In other words, you can face this charge if you enter someone’s property when you know the entry is prohibited – or if you remain on the property after being asked to leave.

You must enter the property with your entire body, whether in person or in a vehicle, for charges to apply.

Penalties for Criminal Trespass

Under most circumstances, criminal trespass is a Class B misdemeanor in Texas. You could face up to 180 days in jail and a fine of up to $2,000 if convicted.

For trespass on agricultural land within 100 feet of the land boundary, or in a residential area within 100 feet of a freshwater stream or river, a Class C misdemeanor may apply. The penalty for a Class C misdemeanor is a $500 fine.

A charge can be elevated to a Class A misdemeanor if the defendant was carrying a deadly weapon at the time of the offense. If convicted, a Class A misdemeanor will result in up to one year in jail and a fine of up to $4,000.

The charges can be raised if the trespass occurred in a building, aircraft, vehicle, recreational vehicle park, or if you have prior criminal trespass convictions. Further elevations may occur if the trespass took place on a Superfund site, in a critical infrastructure facility, or in a shelter or habitation center.

The Importance of “Notice to Depart” in Texas

A notice to depart is necessary to prove that criminal trespass occurred. Here are the five ways a notice to depart can be issued.

  1. Written or oral communication by the owner or another person acting on the owner’s behalf.
  2. An enclosure or fence that serves the obvious purpose of excluding entry to strangers or containing livestock.
  3. Signage posted on the property or building’s entrance that indicates entry is prohibited. The signs must be placed in areas that are reasonably likely to be seen.
  4. Purple paint marks placed on tree trunks or posts. The marks must be at least one inch wide and eight inches long, placed between three and five feet from the ground. In forested land, marks must be made no less than every 100 feet. On non-forested land, marks must be made no less than every 1,000 feet.
  5. On land with crops for human consumption, the crop itself is visible evidence that prohibits trespass. This is true while the crop is being cultivated or harvested.

If the trespass occurred under any of these situations, the charges of criminal trespass may apply.

Penalties for Criminal Trespass in Fort Worth

 

Defenses to Criminal Trespass Charges

A skilled attorney will be able to determine the best possible defense to your charges. Common defenses to criminal trespass charges include the following:

  • The individual entering the property was a firefighter.
  • The individual entering the property was an emergency medical services team member. Emergency medical technicians and others are permitted to enter private property for the purpose of emergency services.
  • The individual was an acting agent for an electric or gas utility. Utility workers are permitted to enter private property through the utility easement in order to perform maintenance and other necessary tasks.
  • The individual was an acting agent for a provider of telecommunications, cable, or video services. Cable or videos services employees are permitted on your property if they are carrying out business for their company.
  • The individual was carrying a concealed handgun with a license on property or land where entry with a handgun was prohibited.
  • The individual did not receive adequate notice to depart. In other words, was it perfectly clear that you were not permitted to be on the property? For example, we represented a man that was waiting for a friend to arrive at a local eatery. He was waiting in his car in a parking spot and an employee approached him and asked him what he was doing. He was upfront with the employee and told him he was waiting for a friend. The employee told him he would need to buy something to remain in the parking lot and proceeded to walk away. The employee then turned around and call the police and the man was charged with criminal trespass? Was he clearly informed he must depart? It is arguable that he did not receive adequate notice. Remember, at the end of the day you are not required to prove anything. The State of Texas must prove the case beyond a reasonable doubt.

As you can see, unless you are able to show that you are an agent of one of the above-mentioned entities, notice to depart is likely to become a very important part of your defense. Many times, homeless people will be arrested on site by the police because the business wants them to be removed from the premises. However, it is important that they are given notice to depart in order for the State of Texas to prove the case beyond a reasonable doubt. If the homeless person was loud or causing a disturbance, it may be possible to get the criminal trespass charged dropped from a Class B Misdemeanor to a Class C Misdemeanor Disorderly Conduct or other applicable misdemeanor charge.

What is an adequate notice to depart for criminal trespass in Texas? The most common way to ensure that someone has been given adequate notice to depart from a premises is through a criminal trespass warning. Police officers have the discretion to approach someone and inform them that the owner of the private property no longer wishes for them to remain on the property and a written trespass warning can be provided to the individual clearly establishing they are no longer permitted to be present or return to a property.

For example: what if you are at a private residence and you are hanging out with some friends and a disagreement ensues and the police are called? The owner of the property tells the police that you were trespassing. How can the police prove this? How can it be established that you had adequate notice to depart? If the police are doing their job properly, you will not be arrested. Instead, you will be given a trespass warning and asked to leave. If you return, then you can expect to be arrested.

What if you are arrested for criminal trespass in this situation? Your experienced and aggressive criminal defense attorney can use the lack of adequate notice to depart as your primary criminal defense in court. Remember, the prosecutor has the burden to prove every element of the crime beyond a reasonable doubt. If you did not have adequate notice to depart or you had no criminal intent to enter onto someone’s property, that becomes a strong case to possibly have your criminal trespass dismissed.

What if you did not know you were entering on to private property? The primary way to know you are entering a property without consent is if the owner places a “No Trespassing” sign on a fence or building to make it clear you are not permitted to be on the premises. What if there are no signs?

For example: We represented a client that had visited a public park many times in the past and found a small pond that was well stocked with fish. As a result, he grabbed his fishing gear and brought his two kids to the pond and started fishing. A game warden then arrived and stated that the owner of the property had called the police stating that they were on the property without the owner’s consent and had committed the crime of criminal trespass. It was true that there were signs posted on the north side of the private property but there was no fencing and no signs on the south side of the property, where our client entered with his children. Should he be charged with criminal trespass? NO! An experienced and aggressive criminal defense attorney could go in, armed with this evidence, and demand a dismissal of the criminal trespass charges because the prosecutor will be unable to prove the element of criminal intent because the client did not have notice that they were on private property. That is exactly what The Hampton Law Firm did!

Defenses to Criminal Trespass Charges in Texas

To get your charges reduced or dismissed, you are going to need the help of an experienced Texas misdemeanor crimes attorney. You could face jail time and fines. In addition to these consequences, a criminal trespass conviction could also result in a loss of income and reputation. It is very difficult to find a job if you have been convicted of a crime. People will judge you and believe you are not credible if you are convicted of a misdemeanor or felony crime. Also, when you have a misdemeanor conviction, any crimes in your future can be punished more severely. You could see an enhanced punishment range based upon prior convictions.

At The Hampton Law Firm, we specialize in criminal defense in the Fort Worth, Texas and North Texas area. We have a team of 5 Former Prosecutors that have over 80 years of criminal law experience and over 500 criminal jury trials. If you are a loved one is facing a criminal trespass case, don’t hesitate to contact our law firm for a free consultation. We offer a free case analysis where we can analyze your specific case facts and put together a custom criminal defense plan to partner with you to give you the best chance at getting your criminal trespass case dismissed and eligible to be expunged from your criminal record.

Call our offices today to set up a free, no-obligation case review. We’ll look at all the angles of your case, discuss the possible defenses, and come up with a plan to defend your rights.

About the Author: 

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.

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