Suppose you live in an apartment, and you invite a friend over for dinner. Your friend arrives, and you begin eating. Moments later, there is a knock at your apartment door. It is the apartment manager, and the police. They tell you that your friend was issued a trespass warning by the apartment security officer last month and is prohibited from coming to the apartment complex where you live. You demand to see the trespass warning as the police handcuff your friend and drag him from your apartment. On the warning, no reason is given for prohibiting your friend from being at the apartment complex. The police tell you that your friend has committed a criminal offense—criminal trespass—punishable by up to 180 days in jail simply by being at your apartment after the trespass warning was issued last month. (Does this type of thing really get charged in Denton County? Yes. I have handled two cases in the past six months like this. In fact, the above facts are the facts from one of these two cases.)
Is this legal?
This may seem like a complicated issue, but it can be boiled down to this very basic question: Can an apartment complex tell a tenant that the tenant may not invite a specific person over to the tenant’s apartment (who has not acted unlawfully or committed any illegal act), and arrest the person if the tenant invites the person over nonetheless?
The answer is NO. We intuitively know this (at least defense lawyers and normal people do), and the State, at some level deep down inside its cold machine parts, suspects it is wrong to do this. (They dismiss the charges often enough, when pressed.) But, both defense lawyers and the State have failed to provide a legal basis for what seems like commonsense….until now: here is the reason such behavior on the part of police and the State is just plain wrong.
Texas Penal Code s30.05 – “Criminal Trespass”
Under the Texas Penal Code, section 30.05, a person commits the offense of “criminal trespass” 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.”
The “Owner” Problem
First, the statute makes no reference to ownership, and ownership is not an element of “criminal trespass.” See Texas Penal Code s30.05; see Langston v. State, 855 S.W.2d 718, 721 (Tex.Crim.App. 1993)(en banc). It does, however, reference “the property of another”—meaning, the property of a person other than the person allegedly committing the trespass. The question then becomes how the State will demonstrate the property belongs to someone other than the Accused in the charging instrument. The simplest way to do this is to state that a given person is the “owner” of the property alleged to have been trespassed by the Accused. See Langston, 855 S.W.2d. This is frequently done in indictments and informations to allege ownership (e.g. “[X] entered the property of another, to wit: [Apartment Manager or Security Officer], owner of [Apartment Complex]..”]
But how do we know what an “owner” is under the law? Texas Penal Code section 1.07(a)(35) defines “owner” as “a person who: (A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or (B) is a holder in due course of a negotiable instrument.”
So, a person can be an “owner” of property in a few ways: (1) by having title to the property; (2) by having possession of the property; (3) by having a greater right to possession of the property (where two or more people have a right to possess the property—for example, where two people own property as tenants in common); or (4) is a holder in due course of a negotiable instrument. Critical to note here is that “possession” does not mean some abstract, metaphorical ownership of the property—it means “actual care, custody, control, or management” of the property. Texas Penal Code s1.07(a)(39).
Furthermore, multiple people could be “owners” under the law of property—an apartment complex has title to the property, but the tenant has possession of the apartment, and has a greater right to possession of the apartment. As such, both are “owners” under the Penal Code.
The Battle of Owners: Landlord versus Tenant
With two owners—landlord and tenant—we need to look at the rights each party have.
“When a tenant enters into possession under a lease, the landlord, during the term, parts with his right of control over the same…He has no more right to enter upon the premises, except so far as he has reserved that right in the lease, than a stranger…The tenant, during the term is invested with all the right of control over the premises that the landlord himself would possess…The landlord’s right as to possession [of the property] is suspended from the time the tenant takes possession under his lease, and no right of entry on his part is implied for any purpose, unless specifically reserved.” Zallner v. State, 15 Tex.App. 23; citing Brumley v. State, 12 Tex.App. 609. Put simply, the tenant has the right to include and exclude persons (including the landlord) from tenant’s apartment during the term of the lease, unless the landlord has provided otherwise in the lease.
Think not? Could your apartment manager invite all of her friends over to a party in your apartment without your consent? Could your apartment manager enter your apartment without giving written notice to you, or without receiving written permission from you?
Consider: a landlord can be liable for trespass on property that he has leased to a tenant, because the landlord has no right of entry without a tenant’s permission, unless such right is specifically reserved. Zallner, 15 Tex.Ct.App. at 24-5; see also Elliott v. State, 39 Tex.Crim. 242.
Weighing the Right to Possess Under Lease v. Title
So, a tenant clearly has a greater right to possession of the property than landlord. But, landlord has title to the property. How do we weigh these respective interests?
This point comes about indirectly through previous holdings of Texas courts. In State v. Kinsey, the Texas Court of Criminal Appeals (the highest criminal court in Texas), specifically reserved the question of whether a defendant could trespass on property to which the defendant has a lesser title (interest) than the complainant (i.e. person whose property was allegedly trespassed upon.) 861 S.W.2d 383, 385 (Tex.Crim.App. 1993). The Court held that a defendant could, in fact, trespass on property which the defendant had a lesser interest in than the complainant. Id. However, in ruling so, the Court seemingly implied that trespass could not occur of the defendant had equal or greater title to the complainant. See Frazier, 2011 WL 1631689 (Tex.Crim.App.)(dissenting opinion of J. Keller)(not designated for publication).
We know, then, that a conviction for criminal trespass cannot occur if the defendant has a greater right to possession than the complainant. But, in the above facts, the defendant has no right to the premises. Instead, the tenant has the rights. So, the battle becomes who is the OWNER of the property: the tenant, or the landlord?
Who is the Owner?
When two people have the same interest in property, the Texas Court of Appeals has suggested that “ownership,” in such cases, means actual possession of the property. For example, where sister and brother owned property as tenants in common, but brother had never lived on the property, brother could be convicted of criminal trespass for entering the property. See Frazier, 2010 WL 2978494 (Tex.App.-Dallas)(discretionary review granted by Texas Court of Criminal Appeals, and judgment affirmed in Frazier v. State, 2011 WL 1631689, Tex.Crim.App.). What about tenant versus landlord? Under the facts above, the tenant is the owner of the property, insofar as the tenant has actual possession of the property.
Thus, under the facts above, the State cannot prove ownership superior to that of the Tenant. So if the tenant consents to the accused’s presence in the apartment (and the accused is not acting unlawfully inside the apartment), the “owner” of the apartment has consented.
Therefore, any claim of “criminal trespass” should fail as such, where the State has alleged the apartment complex or security officer has “ownership” in the charging instrument. The State cannot prove that the complex or security officer have a greater ownership interest in the property than the tenant. See Langston, 855 S.W.2d. (where State alleged Complainant “owned” property in question, State’s failure to prove ownership precluded conviction.)