Can someone be charged with criminal trespass at an RV park in Texas?

TX AG Opinion GA-0606: Does criminal trespass law apply to RV parks?

Plain-English summary

A state senator asked whether the criminal trespass provisions of Penal Code section 30.05 apply to recreational vehicle (RV) parks and similar commercial businesses, and whether the statute is clear about how local police can enforce it there. The question arose after the Legislature passed two 2007 bills (Senate Bill 182 and House Bill 1092) that would have added "recreational vehicle park" to the list of places where criminal trespass can occur. The Governor vetoed both, saying current law already covered those places and the bills were redundant.

The Attorney General gave a two-part answer. First, section 30.05(a) broadly prohibits criminal trespass on real property regardless of the commercial enterprise on it, so land used as an RV park is "property" where criminal trespass may occur; the statute does apply. Second, the statute is not entirely clear about how officers should enforce it in the RV-park context, because whether a particular person is trespassing depends on the facts and on any agreement between the guest and the park. An RV guest's contract may be a lease (creating a landlord-tenant relationship) or a license (more like a hotel guest), and that distinction matters. A guest with a valid, unchallenged lease generally cannot be treated as a criminal trespasser, because Texas courts hold that criminal law is not a substitute for civil process in property disputes, and a person acting under a bona fide claim of right lacks the criminal intent the offense requires. Property Code chapter 94 also requires a landlord in a manufactured-home community to get a civil writ of possession before excluding or evicting a tenant. Where the guest is only a licensee, a hotel can evict on reasonable notice without a civil detainer action, but even then the opinion said the law was not clear enough to predict how the trespass statute would apply.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Penal Code section 30.05 and Property Code chapters 24 and 94 may have been amended since 2008, and later court decisions may have clarified how criminal trespass applies to RV parks. Confirm current law before acting.

Who this opinion affected (as of 2008)

RV park and campground operators: The opinion told them their land counted as "property" under the criminal trespass statute, but that removing a paying guest was not automatically a trespass matter. If the guest held a lease, the operator generally had to use civil eviction; the operator's own contract terms could determine which path applied.

Local law enforcement: The opinion acknowledged officers faced real uncertainty. It explained that the existence of a lease or other possessory interest bears on elements of the offense (whether the land is the "property of another," whether the guest had effective consent, and whether the guest had criminal intent), so an arrest decision could not be made on the RV-park label alone.

RV guests and campers: For a guest acting under a genuine claim of right under a lease, the opinion indicated the dispute was likely civil, not criminal. A guest who was merely a licensee had a weaker position, but the opinion still found the criminal-trespass analysis unclear.

Common questions

Can an RV park just call the police to remove a guest as a trespasser?
Not necessarily. The opinion said RV-park land is property where trespass can occur, but if the guest has a valid lease, a court would likely find the guest's presence is not criminal trespass, and removal would go through civil eviction instead.

Why does a lease versus a license matter?
A tenant under a lease has an estate in the land and a right to possession, so removing them usually requires civil process. A licensee (the opinion compared a hotel guest) has no property interest, and a hotel can evict on reasonable notice without a detainer suit. The label affects whether criminal trespass elements are met.

Didn't the Legislature try to fix this?
Yes. Senate Bill 182 and House Bill 1092 in 2007 would have added "recreational vehicle park" to the trespass statute, but the Governor vetoed them as redundant, saying current law already covered RV parks.

Background and statutory framework

Section 30.05(a) makes it an offense to enter or remain on or in another's property, or in a building, without effective consent after notice that entry is forbidden or notice to depart (Tex. Penal Code Ann. § 30.05(a)). "Property" includes real property (Sarsfield v. State, 11 S.W.3d 326, 327 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)), and the statute's elements are general (Bader v. State, 15 S.W.3d 599, 606 (Tex. App.-Austin 2000, pet. ref'd)). The 2007 bills (Tex. S.B. 182; Tex. H.B. 1092) that would have named RV parks were vetoed as redundant.

The opinion explained that an RV guest's agreement may be a lease creating a landlord-tenant relationship, including under Property Code chapter 94 for manufactured-home communities, which requires a civil writ of possession before eviction (Tex. Prop. Code Ann. §§ 94.001-.303, 94.002; §§ 24.001-.011). A tenant with a valid lease is generally not a criminal trespasser, because criminal courts are not the forum for property-title disputes (Moore v. State, 268 S.W.2d 187, 189 (Tex. Crim. App. 1954)) and acting under a bona fide claim of right negates criminal intent (Gornick v. State, 898 S.W.2d 678, 680 (Tex. App.-Texarkana 1997, no writ); State v. Mendieta, 898 S.W.2d 11, 14 (Tex. App.-San Antonio 1995, no writ); Hann v. State, 771 S.W.2d 731, 733-34 (Tex. App.-Fort Worth 1989, no writ)). By contrast, a hotel guest is generally a licensee with no property interest (Patel v. Northfield Ins. Co., 940 F. Supp. 995, 1002 (N.D. Tex. 1996)) and can be evicted on reasonable notice without a detainer action (McBride v. Hosey, 197 S.W.2d 372, 374-75 (Tex. Civ. App.-El Paso 1946, writ ref'd n.r.e.)). Even so, the opinion concluded the statute was not entirely clear about enforcement in the RV-park setting.

Citations

Statutes:

• Tex. Penal Code Ann. §§ 30.05(a), 30.05(b)(2)(A) (Vernon Supp. 2007)
• Tex. Gov't Code Ann. § 27.031(a)(2) (Vernon Supp. 2007)
• Tex. Transp. Code Ann. § 522.004(b) (Vernon Supp. 2007)
• Tex. Prop. Code Ann. §§ 94.001-.303, 94.002, 24.001-.011 (Vernon 2007 & Supp. 2007)
• Tex. S.B. 182, 80th Leg., R.S. (2007); Tex. H.B. 1092, 80th Leg., R.S. (2007)

Cases:

• Sarsfield v. State, 11 S.W.3d 326, 327 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)
• Bader v. State, 15 S.W.3d 599, 606 (Tex. App.-Austin 2000, pet. ref'd)
• Moore v. State, 268 S.W.2d 187, 189 (Tex. Crim. App. 1954)
• Gornick v. State, 898 S.W.2d 678, 680 (Tex. App.-Texarkana 1997, no writ)
• State v. Mendieta, 898 S.W.2d 11, 14 (Tex. App.-San Antonio 1995, no writ)
• Hann v. State, 771 S.W.2d 731, 733-34 (Tex. App.-Fort Worth 1989, no writ)
• Patel v. Northfield Ins. Co., 940 F. Supp. 995, 1002 (N.D. Tex. 1996)
• McBride v. Hosey, 197 S.W.2d 372, 374-75 (Tex. Civ. App.-El Paso 1946, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0606
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0606.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

GREG ABBOTT

March 13, 2008

The Honorable Jeff Wentworth
Chair, Committee on Jurisprudence
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0606

Re: Whether the criminal trespass provisions of section 30.05 of the Penal Code apply to recreational vehicle parks (RQ-0621-GA)

Dear Senator Wentworth:

You ask whether the criminal trespass provisions of section 30.05 of the Penal Code apply to recreational vehicle ("RV") parks and similar commercial entities.[1] More generally, you ask if the current statute "is clear or unclear as to how local law enforcement can enforce the statute as it relates to RV Parks or similar entities." Request Letter, supra note 1, at 2.

I. Background

A typical RV park, as you describe it, is a commercial campground business that provides services as a "resort style destination." Id. at 1. You relate that a proprietor of an RV park may have occasion to remove or exclude various persons who refuse to leave the premises voluntarily. You give as examples a paying guest (or a guest of a guest) asked to leave because of unruly behavior or refusal to obey park rules. Id. Also, an RV park may deny potential guests accommodation because their equipment does not meet safety standards or for other reasons. Id. at 2. You state that law enforcement agencies routinely apply criminal trespass laws under similar circumstances to remove persons from a "movie theatre, hotel, restaurant or other service related business." Id. at 1-2. But, you inform us, some law enforcement agencies have questioned whether the criminal trespass statute applies in the context of an RV park, or whether the issue is one "for a JP to resolve," suggesting that it is a civil matter. See id. at 1; see also TEX. GOV'T CODE ANN. § 27.031(a)(2) (Vernon Supp. 2007) (establishing justice court's original jurisdiction for forcible entry and detainer civil actions).

To clarify the criminal trespass statute's application in these circumstances, Senate Bill 182 and House Bill 1092 were passed during the Eightieth Legislative Session. See Request Letter, supra note 1, at 1; see also Tex. S.B. 182, 80th Leg., R.S. (2007); Tex. H.B. 1092, 80th Leg., R.S. (2007). As enrolled, both bills would have amended section 30.05(a) of the Penal Code to specifically include a "recreational vehicle park" as property where criminal trespass may occur.[2] The bills also would have defined the term "recreational vehicle park" to mean "a tract of land that has rental spaces for two or more recreational vehicles."[3] Tex. S.B. 182, 80th Leg., R.S. (2007); Tex. H.B. 1092, 80th Leg., R.S. (2007).

The Governor vetoed the bills, on the grounds that:

House Bill 1092 . . . and Senate Bill 182 . . . seek to amend the offense of criminal trespass by creating certain places that are subject to criminal trespass. Current statute covers the places identified in these bills, which renders this legislation redundant. If there are problems, the State of Texas should address criminal trespass issues in a comprehensive manner that makes the system consistent for enforcement and punishment.

Veto Message of Gov. Perry, Tex. H.B. 1092, H.J. OF TEX., 80th Leg., R.S. 7407 (2007); Tex. S.B. 182, S.J. OF TEX., 80th Leg., R.S. 5322 (2007). You ask "whether . . . the current Texas Penal Code Section 30.05 covers the places identified in the two bills, per the Governor's office opinion," and whether the section is clear "as to how local law enforcement can enforce the statute as it relates to RV Parks or similar entities." Request Letter, supra note 1, at 2.

II. Analysis

As currently written, section 30.05(a) of the Penal Code provides that:

(a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

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

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

TEX. PENAL CODE ANN. § 30.05(a) (Vernon Supp. 2007).[4]

Section 30.05(a) does not define "property," but the term includes real property. See Sarsfield v. State, 11 S.W.3d 326, 327 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (holding that the "offense of criminal trespass under section 30.05, Texas Penal Code, applies . . . to real property"). Section 30.05(a) broadly prohibits criminal trespass on real property without regard to the particular commercial enterprise conducted on the property. TEX. PENAL CODE ANN. § 30.05(a) (Vernon Supp. 2007).[5] Real property used as an RV park is "property" where criminal trespass may occur under section 30.05(a). Id. To answer the first part of your question, section 30.05(a) is applicable to property used for RV parks and similar enterprises.

More generally, you ask if the criminal trespass statute is clear "as to how local law enforcement can enforce the statute as it relates to RV Parks or similar entities." Request Letter, supra note 1, at 2. Section 30.05 does not specify how it would apply when the property in question is an RV park or similar property. Rather, it sets out broad elements of the offense, which are that: "(1) a person, (2) without effective consent, (3) enters or remains on the property or in a building of another, (4) knowingly, intentionally, or recklessly, (5) when he had notice that entry was forbidden or received notice to depart and failed to do so." Bader v. State, 15 S.W.3d 599, 606 (Tex. App.-Austin 2000, pet. ref'd). In a particular case the application of one or more of these elements to the facts and circumstances may not be clear.

The operations of an RV park or similar commercial enterprise may present special considerations because of the likely existence of a contract pertaining to the use of the property. As you explain, a guest pays for use of the property, which we assume will be pursuant to an agreement or contract, express or implied, with the proprietor of an RV park. See Request Letter, supra note 1, at 1. If express, their contract may address such matters such as the length of the guest's stay, the guest's right to have other guests, and the right of either party to terminate the agreement. The agreement may constitute a lease, a license, or some other legal relationship, each with potentially different consequences. While there is a dearth of authority directly concerning criminal trespass in the context of an RV park, the nature and terms of any agreement governing the person's right to enter and remain on the property may be relevant to several of the elements of the offense of criminal trespass.

For example, an agreement between a property owner and an RV owner may constitute a lease that establishes a landlord-tenant relationship. See, e.g., Dargis v. Paradise Park, Inc., 819 N.E.2d 1220, 1229-30 (Ill. App. Ct. 2004) (determining that a contract to rent a seasonal RV campsite constituted a lease rather than a license). A landlord-tenant relationship may be created under the common law. See Stubblefield v. Jones, 230 S.W. 720, 721 (Tex. Civ. App.-El Paso 1921, writ ref'd) (holding that the "relation of landlord and tenant is always created by contract, either express or implied"). Also, chapter 94 of the Real Property Code recognizes specific circumstances that establish a landlord-tenant relationship between a property owner and an RV owner. See TEX. PROP. CODE ANN. §§ 94.001-.303 (Vernon 2007 & Supp. 2007) (chapter 94).[6]

A tenant has an estate in land and the general and exclusive right to possession during the term of the lease. See Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 159 (Tex. App.-El Paso 1993, writ dism'd w.o.j.).[7] If an RV owner has a valid, existing lease, unchallenged by any civil process, a court would likely conclude that such a person's presence on the leasehold does not constitute criminal trespass. While there are no cases directly on point, Texas courts have held that the criminal law is generally not a substitute for civil process to resolve property disputes. See, e.g., Moore v. State, 268 S.W.2d 187, 189 (Tex. Crim. App. 1954) (holding that "[c]riminal courts are not the forum for determination of disputed titles to real estate, and a criminal prosecution is not the medium for making such determination"); Gornick v. State, 898 S.W.2d 678, 680 (Tex. App.-Texarkana 1997, no writ) (holding that "[i]f a person is acting under a bona fide claim of right, albeit ill-founded, he is not guilty of a crime. If the act is not in fact legally justified, it may constitute a trespass that can be redressed by civil remedies, but it is not a crime."). The existence of a lease may raise issues about elements of the offense of criminal trespass, such as whether the leasehold constitutes the "property of another" under the criminal trespass statute, whether the accused had effective consent to enter and remain on the property, and whether the accused had the requisite criminal intent. See Gornick, 898 S.W.2d at 680 (holding that the criminal trespass statute "does not criminalize acts that are undertaken in good faith as the proper exercise of ownership under a claimed right, for in such a case there is no criminal intent"); State v. Mendieta, 898 S.W.2d 11, 14 (Tex. App.-San Antonio 1995, no writ) (holding that a person who has entered and remained on property in which the person has a possessory interest "is not trespassing on the land of 'another'"); Hann v. State, 771 S.W.2d 731, 733-34 (Tex. App.-Fort Worth 1989, no writ) (holding that the existence of a bona fide dispute over a tenant's right of access to property precluded a criminal trespass finding that the defendant's entry or presence on the property was "without effective consent").

On the other hand, an agreement between an RV park or similar enterprise and an RV owner may be construed as creating a relationship other than landlord and tenant. You have suggested that the operations of an RV park might be analogized to a hotel. Generally, "[u]nder Texas law, . . . a guest in a hotel is a mere licensee, not a tenant." Patel v. Northfield Ins. Co., 940 F. Supp. 995, 1002 (N.D. Tex. 1996). A hotel guest who is a licensee does not have a property interest in the premises. See Mallam v. Trans-Texas Airways, 227 S.W.2d 344, 346 (Tex. Civ. App.-El Paso 1949, no writ) (holding that while a tenant is vested with an estate in the property, a hotel guest is not). And a Texas court has held that a hotel need not resort to a civil detainer action to evict a guest upon reasonable notice. McBride v. Hosey, 197 S.W.2d 372, 374-75 (Tex. Civ. App.-El Paso 1946, writ ref'd n.r.e.). Nevertheless, even if an agreement between a proprietor of an RV park and a guest is determined to be a license, the law is not sufficiently clear to predict how the criminal trespass statute would apply in that instance. To return to your question, the criminal trespass statute is not entirely clear "how local law enforcement can enforce the statute as it relates to RV Parks or similar entities." Request Letter, supra note 1, at 2.

SUMMARY

Property used as an RV park is "property" where criminal trespass may occur. Whether a particular person has committed criminal trespass on such property depends on the circumstances and the effect to be given to any agreement with the owner of the property concerning the person's rights of entry or presence on the property.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (rec'd Sept. 14, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] The bills provided: (a) A person commits an offense if the person [he] enters or remains on or in property, including a recreational vehicle park or an aircraft or other vehicle, of another without effective consent or the person [he] enters or remains in a building of another without effective consent and the person [he]: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. Tex. S.B. 182, 80th Leg., R.S. (2007); Tex. H.B. 1092, 80th Leg., R.S. (2007) (additions italicized and deletions stricken).

[3] The bills would have adopted the definition of "recreational vehicle" from the Transportation Code, as "a motor vehicle primarily designed as temporary living quarters for recreational camping or travel use. The term includes a travel trailer, camping trailer, truck camper, and motor home." Tex. S.B. 182, 80th Leg., R.S. (2007); Tex. H.B. 1092, 80th Leg., R.S. (2007), citing TEX. TRANSP. CODE ANN. § 522.004(b) (Vernon Supp. 2007).

[4] "Notice" under the statute includes "oral or written communication by the owner or someone with apparent authority to act for the owner." TEX. PENAL CODE ANN. § 30.05(b)(2)(A) (Vernon Supp. 2007).

[5] Section 30.05 of the Penal Code contains other provisions applicable to specific types of property such as "forest land," "agricultural land," and "railroad switching yard," none of which are pertinent here. See id. § 30.05(b), (e), (g).

[6] Chapter 94 applies to the relationship created when a landlord leases property in a "manufactured home community" to a tenant. TEX. PROP. CODE ANN. § 94.002 (Vernon 2007). A "manufactured home" specifically includes a "recreational vehicle," defined as "a vehicle that is primarily designed as a temporary living quarters for recreational camping or travel use and that is permanently tied to, affixed, or anchored to the premises." See id. § 94.001(3), (8), (10). Under chapter 94, an RV owner who is "(A) authorized by a lease agreement to occupy a lot to the exclusion of others in a manufactured home community; and (B) obligated under the lease agreement to pay rent, fees, and other charges" is a "tenant" under chapter 94. See id. § 94.001(11). A landlord subject to chapter 94 of the Property Code may not exclude or evict a tenant without first obtaining a civil writ of possession. See id. §§ 94.203(a) (requiring a writ of possession under chapter 24), 24.001-.011 (Vernon 2007 & Supp. 2007) (chapter 24, concerning forcible entry and detainer actions).

[7] Accord Brown v. Johnson, 12 S.W.2d 543, 545 (Tex. 1929) (holding that an essential feature of a lease is the intent of the landowner "to dispossess himself of the premises and [of the tenant] to occupy them"); Levesque v. Wilkens, 57 S.W.3d 499, 504 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (holding that generally, a "lease grants a tenant exclusive possession of the premises [even] as against the owner"); De Leon v. Creely, 972 S.W.2d 808, 812 (Tex. App.-Corpus Christi 1998, no pet.) (holding that tenant has right of exclusive possession and that property owner's entry onto the leased premises would be unlawful outside of expressly reserved right of reentry).