Criminal Trespass is a misdemeanor crime in Texas that essentially involves being somewhere you’re not supposed to be. A Criminal Trespass charge can sometimes arise in a situation where a you enter the wrong house by mistake or when you cross through someone else’s property on the way to another location.

A prosecuting attorney might also allege that Criminal Trespass occurred when a person violates a “stay away order” put in place by a court or refuses to leave a location when the property owner tells them to do so.

Update: The 86th Texas Legislature added an affirmative defense to this offense, effective as of September 1, 2019. Learn more about this change below.

What is the current Texas law about Criminal Trespass?

The current Texas law defines the offense of Criminal Trespass in Penal Code Section §30.05 as follows:^[1]

(a) A person commits an offense if the person enters or remains on or in 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, 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.

The Texas Criminal Trespass law was updated in 2017 with the passage of S.B. 1649 in the 85th Legislature. Effective September 1, 2017,^[2] convictions for trespassing on the property of colleges and universities can be enhanced if the state proves that you have a prior conviction (or sentence of deferred adjudication) for criminal trespass on the grounds of a college or university.^[3]

What does it mean to “enter” a property?

The Texas Penal Code defines entry as the “intrusion of the entire body”. This means, in the state of Texas, that you must be completely on the property, or on or in a vehicle or building. For example, reaching into someone’s car with your arm is not sufficient for a charge of criminal trespass. Going inside a building, sitting inside a car, or jumping a fence onto the property of someone else would be considered an “entry” under the law.

What is effective consent? How do I know if I have proper notice?

Section 30.05 of the Texas Penal Code lists all the ways that notice can be given:

• An oral or written communication from the owner or a person with the authority of the owner. This means that if you have received a letter, telephone call, email, or have been verbally told by the owner that you are not allowed on the property that you have been given proper notice.
• Fencing or other enclosure that is clearly designed to keep people out or livestock in. Security fences or barbed wire might be examples of fencing obviously designed to keep people out.
• Signs that are reasonably likely to be noticed that indicate that entry is forbidden. For example, no trespassing or keep out signs posted at regular intervals on a fence, or a no entry sign posted on a gate would fall under this category.
• Purple paint marks on trees that meet specific criteria. These occur mostly in large undeveloped properties in woodland areas.
• Visible crops that appear to be grown for consumption, or in the process of being harvested. For example, a farm without a fence but with rows of corn would be considered as having proper notice.

How can I be charged with criminal trespass?

You can be charged with Criminal Trespass if a police officers see you entering or staying in a location you have notice to not be in, or if they believe you may have committed the offense. Many instances involve a property owner or a neighbor notifying the police of the alleged offense. You may be charged with the offense if you were seen on video entering the property. You may be charged with the offense even if you were originally on the property with permission, but that permission was revoked or has expired.

What is the penalty for a criminal trespass conviction? What happens if I plead guilty to a charge of criminal trespass?

Under the Texas Penal Code, a Criminal Trespass conviction is by default a Class B misdemeanor. But if the alleged offense occurs in an agricultural area within 100 feet of the boundary or in a residential area within 100 feet of a freshwater river or stream, the misdemeanor is dropped to a Class C misdemeanor.^[4]

However, the state’s attorneys may seek to enhance the punishment for three different reasons. Should the alleged trespass occur in specially designated shelter area, a ‘critical infrastructure’ location (such as a power plant, water treatment plan, or train yard), or if the alleged trespass is committed while carrying a deadly weapon (which includes firearms or any weapon that is reasonably capable of causing death or injury), the penalty can be raised to a Class A misdemeanor.^[5] In addition, effective September 1, 2017, the penalty can be enhanced to a Class A misdemeanor if the offense is for trespassing on a college or university and you have a prior conviction or deferred adjudication^[6] record for the same offense (see footnote 2). Learn more about what penalties the different classes of misdemeanor carry

How can I get a criminal trespass charge dismissed?

Every case is unique, and in order to get a Criminal Trespass case dismissed, you should hire a criminal defense attorney to represent you in court. The most common defenses to a Criminal Trespass charge are to show that you had effective consent, that notice was not proper, that a defendant actually owned the property that he or she is accused of entering without consent.

What are the defenses to prosecution?

An affirmative defense was created by the 86th Texas Legislature in 2019. This affirmative defense allows you to avoid prosecution if the basis for the prosecution was that you had a firearm in your possession, and you are carrying a handgun in your residence or the residence of someone else as an invited guest, or to and from such a residence and a vehicle or your home. Storing a handgun in a vehicle at such a residence is also a defense.^[7]

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Legal References:

^1. Texas Penal Code §30.05^2. Senate Bill 1649, 85th Texas Legislature, Sections 3-4^3. Texas Penal Code §30.05(d)(3)(B), as created by Senate Bill 1649, 85th Texas Legislature, Section 2, effective September 1, 2017. Pursuant to Section 30.05(d)(3)(B), the offense is punishable as a Class A misdemeanor if:

(B) the offense is committed on or in property of an institution of higher education and it is shown on the trial of the offense that the person has previously been convicted of:

(i) an offense under this section relating to entering or remaining on or in property of an institution of higher education; or

(ii) an offense under Section 51.204(b)(1), Education Code, relating to trespassing on the grounds of an institution of higher education;

However, according to subsection (d-2): “At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(B), the defendant may raise the issue as to whether, at the time of the instant offense or the previous offense, the defendant was engaging in speech or expressive conduct protected by the First Amendment to the United States Constitution or Section 8, Article I, Texas Constitution. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(B) does not apply.”^4. Texas Penal Code §30.05(d)(2)^5. Texas Penal Code §30.05(d)(3)(A)&(C)^6. Texas Penal Code §30.05(d-1), as created by Senate Bill 1649, 85th Texas Legislature, Section 2, effective September 1, 2017^7. Texas Penal Code §30.05(f-1), (f-2) and (f-3), as enacted by H.B. 302, 86th Texas Legislature –

(f-1) It is a defense to prosecution under this section that:

(1) the basis on which entry on the property was forbidden is that entry with a firearm or firearm ammunition was forbidden;

(2) the actor is:

(A) an owner of an apartment in a condominium regime governed by Chapter 81, Property Code;

(B) an owner of a condominium unit governed by Chapter 82, Property Code;

(C) a tenant or guest of an owner described by Paragraph (A) or (B); or

(D) a guest of a tenant of an owner described by Paragraph (A) or (B);

(3) the actor:

(A) carries or stores a firearm or firearm ammunition in the condominium apartment or unit owner’s apartment or unit;

(B) carries a firearm or firearm ammunition directly en route to or from the condominium apartment or unit owner’s apartment or unit;

(C) carries a firearm or firearm ammunition directly en route to or from the actor’s vehicle located in a parking area provided for residents or guests of the condominium property; or

(D) carries or stores a firearm or firearm ammunition in the actor’s vehicle located in a parking area provided for residents or guests of the condominium property; and

(4) the actor is not otherwise prohibited by law from possessing a firearm or firearm ammunition.

(f-2) It is a defense to prosecution under this section that:

(1) the basis on which entry on a leased premises governed by Chapter 92, Property Code, was forbidden is that entry with a firearm or firearm ammunition was forbidden;

(2) the actor is a tenant of the leased premises or the tenant’s guest;

(3) the actor:

(A) carries or stores a firearm or firearm ammunition in the tenant’s rental unit;

(B) carries a firearm or firearm ammunition directly en route to or from the tenant’s rental unit;

(C) carries a firearm or firearm ammunition directly en route to or from the actor’s vehicle located in a parking area provided for tenants or guests by the landlord of the leased premises; or

(D) carries or stores a firearm or firearm ammunition in the actor’s vehicle located in a parking area provided for tenants or guests by the landlord of the leased premises; and

(4) the actor is not otherwise prohibited by law from possessing a firearm or firearm ammunition.

(f-3) It is a defense to prosecution under this section that:

(1) the basis on which entry on a leased premises governed by Chapter 94, Property Code, was forbidden is that entry with a firearm or firearm ammunition was forbidden;

(2) the actor is a tenant of a manufactured home lot or the tenant’s guest;

(3) the actor:

(A) carries or stores a firearm or firearm ammunition in the tenant’s manufactured home;

(B) carries a firearm or firearm ammunition directly en route to or from the tenant’s manufactured home;

(C) carries a firearm or firearm ammunition directly en route to or from the actor’s vehicle located in a parking area provided for tenants or tenants’ guests by the landlord of the leased premises; or

(D) carries or stores a firearm or firearm ammunition in the actor’s vehicle located in a parking area provided for tenants or tenants’ guests by the landlord of the leased premises; and

(4) the actor is not otherwise prohibited by law from possessing a firearm or firearm ammunition.