Editor's Note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Concerns over trespassers entering land are common for Texas landowners. It is important to understand one’s rights with regard to unauthorized persons on property and to be aware of the potential legal avenues a landowner might pursue.

Trespass is a legal claim that can occur both civilly and criminally. A civil trespass claim would involve a landowner filing suit against the trespasser in civil court, usually to seek monetary damages. A criminal trespass suit would be prosecuted by the government on behalf of the state and seek to impose criminal penalties.

Civil Trespass

In order to successfully prove a civil trespass claim, a landowner must prove “entry on the property of another without having consent of an owner.” The burden of proving each of these elements rests with the landowner plaintiff.

Criminal Trespass

A person commits criminal trespass if he or she enters on the property of another without effective consent, and the person had notice entry was forbidden. Thus, in order for a landowner to seek criminal prosecution against a trespasser, the landowner must first ensure the trespasser had notice he was not allowed to enter the property. Notice may be given in any one of the following ways: (1) oral or written communication by the owner or someone with authority to act for the owner; (2) fencing or other enclosure obviously designed to exclude intruders or contain livestock; (3) a sign posted on the property reasonably likely to come to the attention of the intruders’ stating that entry is forbidden; (4) the placement of purple paint marks on trees or posts, or (5) the visible presence of crops grown for human consumption under cultivation, in the process of being harvested, or marketable if harvested at the time of entry. A person violating this statute is guilty of a misdemeanor.

With regard to the purple paint method of indicating entry is forbidden, the statute requires the markings be vertical lines of not less than 8 inches in length and not less than 1 inch in width, with the bottom of the mark being at least 3 feet from the ground but not more than 5 feet from the ground, placed at a location readily visible to any person approaching the property, and no more than 100 feet apart on forest land or 1,000 feet apart on land other than forest land.

Trespass by Drone

In the past couple of years, the issue of drones and privacy has arisen and has been a concern for some landowners. Is a drone trespassing if it flies over your personal property and captures photographs? Although laws regarding operations of drones are enacted at the federal level, there are not federal rules related to drones and privacy.

Texas, however, does have a statute expressly addressing this issue, the Texas Use of Unmanned Aircraft Statute. This statute, passed in 2013, has not been the subject of any reported decisions as of this time, meaning it will remain to be seen how courts might interpret these provisions. Importantly, the statute appears to apply only to drones “capturing images,” which is defined as “capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about real property in this state or an individual on that real property.” Thus, if a drone was merely flying without capturing images, it does not appear that these provisions would apply.

There are a number of lawful drone uses listed in the statute as well as unlawful uses. Violations of these provisions can result in convictions of a Class C misdemeanor. There are also means by which a person may bring suit against the person capturing images seek an injunction, and recover civil penalties of $5,000 and $10,000.

If you believe your property has been the subject of trespass, you should consult law enforcement or an attorney familiar with real estate law to help you.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. 

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