To Trespass or Not to Trespass, That is the Question

November 17, 2011

Time and again the media traipses in with the "authorities" to take pictures and video and broadcast it to support their sensationalized versions of events.  Yesterday, KCBD was sued and for doing just that and, today, their defense is "no one told us to leave".  WELLLLL, no one has to do that.  Since the Texas media seems to be wholly unaware of the Texas Criminal Trespass statute, I'm going to publish a bit of it here:

Sec. 30.05.  CRIMINAL TRESPASS.  (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, 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.

See that great big OR between those 2 subsections? Nobody has to tell you to get the hell out if you had notice you weren't supposed to be there in the first place.  What's "notice"?  That one is pretty simple too.

"Notice" means:
(A)  oral or written communication by the owner or someone with apparent authority to act for the owner;
(B)  fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
(C)  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;  
(D)  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(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;  or
(E)  the 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.

Fencing "OR OTHER ENCLOSURE", signs, certain other markings OR crops and you should stay the hell off of private property unless you are invited; otherwise, you are probably guilty of CRIMINAL trespass.  On the civil/tort side (that's what is involved in the lawsuit linked above), the rules are even simpler.

WHAT IS TRESPASS TO REAL PROPERTY?

Trespass to real property occurs when a person enters another's land without consent. Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 n.4 (Tex. App.--Eastland 2008, pet. denied); Wilen v. Falkenstein, 191 S.W.3d 791, 797-98 (Tex. App.--Fort Worth 2006, pet. denied).

SUING FOR DAMAGES FOR TRESPASS ON LANDTo recover damages, a plaintiff must prove that: (1) the plaintiff owns or has a lawful right to possess real property; (2) the defendant entered the plaintiff's land and the entry was physical, intentional, and voluntary; and (3) the defendant's trespass caused injury to the plaintiff. Rankin, 266 S.W.3d at 509 n.4; Wilen, 191 S.W.3d at 798.SOURCE: 04-08-00171-CV (7/8/09) (San Antonio Court of Appeals)

Um, hey, KCDB it looks to me like you're pretty well screwed both criminally and civilly on this one.  And I think you know it too.  How many times do we see the media at a distance using telephoto lenses or flying overhead?  Yeah, you guys know damn good and well that you aren't supposed to be traipsing onto private property BUT, in these animal seizure cases, you've just gone BONKERS.  You seem to think that the law is turned on its head, that the property owner has the burden to oust you when, in fact, YOU have the burden to seek and obtain permission to enter BEFORE doing so.

It's pretty simple in Texas, we property owners don't have an obligation to hover over our property 24 hours a day, 7 days a week, 52 weeks of the year in order to be present to tell those without authority to GET THE HELL OUT because the law tells them NOT TO ENTER.  But please don't forget this IS Texas and we recently boosted the stakes with a Castle law, we just might shoot you instead of telling you to GET THE HELL OUT because we know the law tells you NOT TO ENTER.  In all honesty, I'm not really worried about trespassing media members getting shot.  They really do know better so, if they get shot, that's on them and pretty much falls under the good old "deserved killing" clause.  I am, however, worried about the animal "rescuers" on this point.

I attended a little animal law seminar held at South Texas College of Law recently and got to hear the touted "animal law expert" Don Feare speak.  He stood before a room of mostly volunteers and some lawyers and told them that, if they were on someone's property at the behest of law enforcement, they were safe from liability.  I really, REALLY, urge those in the "rescue" community to seek out a second legal opinion on that topic from someone in criminal and/or property law, someone without the myopic "animal law" perspective.  You need to make sure you've got a real "deal" with that law enforcement agency, otherwise, your asses might not be covered.

There are indeed some defenses to the criminal trespass law.  Here's some of them:

(e)  It is a defense to prosecution under this section that the actor at the time of the offense was:
(1)  a firefighter or emergency medical services personnel, as defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances;
(2)  a person who was:(A)  an employee or agent of:(i)  an electric utility, as defined by Section 31.002, Utilities Code;(ii)  a telecommunications provider, as defined by Section 51.002, Utilities Code;(iii)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code;(iv)  a gas utility, as defined by Section 101.003 or 121.001, Utilities Code; or(v)  a pipeline used for the transportation or sale of oil, gas, or related products; and(B)  performing a duty within the scope of that employment or agency; or
(3)  a person who was:(A)  employed by or acting as agent for an entity that had, or that the person reasonably believed had, effective consent or authorization provided by law to enter the property; and(B)  performing a duty within the scope of that employment or agency.

That last one MIGHT cover you "rescuers" on criminal liability (if you're absolutely sure whoever you are working with won't throw you under the bus if push comes to shove).  At a minimum, you should really consider getting something in writing (you know, a contract or something) that says you're an agent of that governmental entity that's asking you to rush in with them and that specifies what you may do and what the rules are for any property you help to remove and you damn sure want to now what, if any, authority you have over property (animals) that you take custody of because you almost certainly do not own them at that point.  Even then, I'm not sure your asses are covered on the civil/tort liability for trespass which is more straight forward. And there are SO many other potential liability issues I'm not even going to try to touch on them here.

Mr. Feare did have one other little tidbit of advice at the seminar that I found interesting.  Some of the "rescuers" were complaining that owners of dogs they had pulled from shelters were showing up and demanding their dogs back.  Did they have to give them back and, if so, couldn't they at least demand some compensation for what they had spent on the dogs (pull fees, vet costs, food/shelter, etc.)?  Mr. Feare started with the general rule that one can only sell what one owns.  If that shelter didn't own that dog, then the "rescue" doesn't own that dog.  Give the dog back!  Nope, you have NO right to get paid.  I agree with Mr. Feare on this one and what he didn't say is YOU are trafficking in STOLEN property.  Yeah, give it back and pray you don't get prosecuted or sued!

Good old Mr. Feare did take his advice on this point one step further in encouraging the "rescuers" to promote city's passing ordinances (and county's passing resolutions) that specify that animals in their shelters automatically become forfeit to the shelter at some point; some "law" that they can hang their hat on to says the shelter "owns" the animal so then the "rescue" will be able to take ownership.  That shelter can only sell what it owns, remember.  I questioned this at the seminar.  Can cities simply declare they "own" your found vehicle after 3 days?  In response, Mr. Feare pointed out that cities have deals with tow companies and vehicle storage companies who are the ones that pick up those found vehicles and then apply for new titles under a specific state statute.

Yep, indeed those tow companies and vehicle storage lots do and I'm pretty sure that's because the Texas property laws are pretty damn stringent on NOT forfeiting property to the state (or its subdivisions: counties, cities) except when there is a specific law permitting it and I have yet to find one that would allow the summary forfeiture of foundling pets.  There are statutes that cover estray wildlife and livestock but not pets.  Is that a glitch in the law?  Maybe but, without such a statute (one that is constitutionally valid), best I can tell under general Texas property laws, it would take about 3 years for a foundling animal to become "forfeit" and even then there would be ownership issues.  Is that a bad outcome for pets?  Yeah, I think so.  My question is this: Why haven't the "animal law experts" like good old Don Feare taken note of this and proposed some legislation to deal with it?  I mean, seriously, y'all have high paid lobbyists and you're so damn super smart so SURELY you haven't simply missed such a simple issue!

Well, in good old Don Feare's defense, his excuse probably goes back to his history as a cop.  Cops just want a written law they can hang their hat on along with their "official immunity".  But Don, dearest, you're a lawyer now and you're advising average lay folk at these seminars.  They aren't cops and they may not be entitled to any immunity at all (despite your declaration to the contrary at the seminar).  Or do you just not mind throwing them under the bus "for the sake of the animals"?  Are you that big of a liberal animal rights activist?  Oh, my, there I've gone and done it.  I called Don Feare an activist and I hear he finds that offensive and tends to sue people over it.  Hey, Donny boy, bring it!  Are you afraid of a little old blogger just like Attila the Prosecutor in Houston?

Go Back

I'm all for removing ABUSED animals, but not some entity coming in, taking over without just cause and STEALING pets without proof of such abuse. The first proof is emanciated animals.

The folks taking animals, and those that they are given to had damn well better PROVE the pets ARE abused or face criminal & civil prosecution.



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