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Criminal Trespass or Civil Matter?

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  • Criminal Trespass or Civil Matter?

    Here is the call I got the other day. A father was visiting his daughter who lives at an apartment complex. The father was invited for that purpose. The apartment complex security confronts the father as he is leaving the complex on foot because he threw an aluminum can on the grass. An argument ensues and the father refuses to leave after being asked to leave by security.

    Both parties call the police and I respond. Security wants the father charged with criminal trespass. I call the DA's Office to speak to an ADA about the situation because in Harris County, a Class B or higher charge needs the permission of an ADA before making an arrest. The ADA refuses the charge. I let the security guards know that the ADA has refused the charge and they become quite upset. The father then leaves and goes about his business.

    I've been doing a little research and I found a 2003 case out of the Twelfth Court of Appeals (Owens v. County Court of Law #1) that upheld a criminal trespass conviction under a similar set of circumstances. However, I have not found any cases from the Courts of Appeal that have jurisdiction in Harris County.

    I’ve never had an ADA who accepted charges based on the preceding set of circumstances, i.e. an invitee of a tenant who refuses to leave after being requested to do so by the property manager or security. Is the DA’s Office throwing away legit cases or is this a civil matter?

  • #2
    I say civil, 100%.. The tenant pays for their residency, they can invite whomever they want over..

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    • #3
      I would say not civil, the tenant is responsible for the apartment they pay rent for but not the grounds where the father was littering.

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      • #4
        Originally posted by ZoomByU View Post
        I would say not civil, the tenant is responsible for the apartment they pay rent for but not the grounds where the father was littering.
        True, but the complaint in question was not the littering, but the refusing to leave the premises. And as was stated, he was an invitee of someone who was renting there. I guess that still doesn't answer the question, but I could see the DA's reasoning.
        My gut says it's civil. The tenant is paying to rent the apartment and for ingress and egress to/from the apartment, which would include the parking lot or other grounds. This would logically apply to guests of the tenant as well. All this would be governed by the lease. So I suppose to keep the guy off the property, the landlord would have to get a civil injunction. Just like if they wanted to kick the tenant out for violating the lease, they'd have to go through civil eviction proceedings.
        I'm way too lazy to look for case law on this right now, but if I get really bored before 5:00, I might take a look.
        "No one can make you feel like a turd without your permission." - Eleanor Roosevelt.

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        • #5
          Here when we show up to something like this we issue them a Criminal Trespass Warning which is formal writing that they are supposed to sign, if they refuse no big deal I read it to them and write refused on the line. At this point on they can be arrested for trespassing and charged with the Class B. We also have a city citation for Criminal Attempt Trespassing which honestly just keeps the money in the city instead of the county or a nice week in city jail.

          Here is my take on the situation. The resident is allowed to invite anybody they want over to their apartment/property. But we know that people that rent do not rent the hallways, parking lots, ect. They rent the room only and have rights granted by the apartment to use the pool, washing room area, ect. Ultimately though the apartment complex or authorized representative can limit the use of these properties. Now I would say some discretion should be used if they are parking and walking up to their friend's apartment versus just cruising through the complex either on foot or in a vehicle.

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          • #6
            Quit over analyzing the stuff. It's civil, through and through. She pays rent, he can come over...

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            • #7
              She may pay rent but it's the management that decides who is welcome on THEIR property. If management does not want them there, then it is not a civil issue anymore.
              Moooooooooooo, I'm a goat

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              • #8
                Originally posted by JSD73 View Post
                She may pay rent but it's the management that decides who is welcome on THEIR property. If management does not want them there, then it is not a civil issue anymore.
                True, I agree 100%, she could have anyone over but as soon as mgmt does not want that visitor in the complex, they have to file a crim tresp report and have that visitor warned that they are not welcomed. If he comes back or refuses to leave after a peace officer told him, then it is jail time...If they don't like it break the lease and move somewhere else...

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                • #9
                  Uh, good lord, seriously??

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                  • #10
                    Originally posted by Lawfficer View Post
                    I call the DA's Office to speak to an ADA about the situation because in Harris County, a Class B or higher charge needs the permission of an ADA before making an arrest. The ADA refuses the charge.

                    WHAT?? Do they answer at 3 a.m. also????

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                    • #11
                      Originally posted by janego10 View Post
                      WHAT?? Do they answer at 3 a.m. also????
                      When I was a city cop we used a system called DIMS, it had its pros and cons, you have pc and arrest, take them to station, start report and call an onduty ADA that works 24/7, present the case pc over the phone and they either accept or decline the case, works well with bs famv calls or weak cases that you don't really want to arrest, let the ADA make the call and its on them, it cuts a little of time and gets officers on the field working on the backlog of calls

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                      • #12
                        it makes a little sense, but it seems to cut into your discretion a bit. I can see how it can cut the paperwork for the DAs office since they dont have to review every darn case we file and then either drop it or do something else. A lot of officers will put the highest charge and "let the DA handle it."

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                        • #13
                          Absolutely 100% civil matter. That call would have lasted about 60 seconds, just long enough to inform security that if they or the landlord wants the man banned from the property they will have to evict the person who keeps inviting him over to their residence.

                          Security probably won't know this unless they are experience and well versed in law, but the property owners should.

                          There is a ton of case law on this. Sorry, I can't quote the cases and I don't have the time to look for them right now. I read them, know what they say and what the law says, and know how to apply it. If I come across it sometime soon I will make a thread with the applicable law.

                          This situation is no different than if a husband says someone can't come to the house but the wife says they can. The husband can't CTW someone if another legal resident of age wants them there. If one person wants someone issued a CTW against the wishes of another adult legal resident, the person wanting the CTW must have the other person legally evicted and take sole possession of the property.

                          Originally posted by JSD73 View Post
                          She may pay rent but it's the management that decides who is welcome on THEIR property. If management does not want them there, then it is not a civil issue anymore.
                          There is a ton of case law on this that says that once you sign a lease and take control of a piece of property, it is your residence. You can possess firearms in your residence legally even if it says you can't in the lease (been there). And you can cram 20 people into the apartment if you want, regardless of what the lease says. You can have animals, smoke, drink, etc regardless of what the lease says and there is no criminal offense. If the landlord or their representative wants you gone, they have to evict you. Once you are served with an eviction and the time allotted to vacate has expired, then it is criminal trespass on everyone because they are no longer in control of the piece of property.


                          You won't really get into trouble for issuing a CTW to someone, but once you try to enforce it against the wishes of a legal resident(tenant), then you're hanging yourself out to dry. Find something else to arrest them for if you absolutely believe they need to go to jail. Littering, DOC-language if they cuss in public, PI, jaywalking, something, anything. But arresting for CT when they are invited by a legal resident will get you a visit from a lawyer, an angry department head, some paper in your permanent file, a lawsuit against the department and a few other unpleasant results.

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                          • #14
                            The areas around the complex belong to the complex, not the tenant. They can CTW him from that. We've had apartments around here do it when some little thug comes in and causes trouble.
                            sigpic
                            Let your watchword be duty, and know no other talisman of success than labor. Let honor be your guiding star in your dealing with your superiors, with your fellows, with all. Be as true to a trust reposed as the needle to the pole. Stand by the right even to the sacrifice of life itself, and learn that death is preferable to dishonor. ~ Gov. Richard Coke, October 4, 1876

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                            • #15
                              Originally posted by janego10 View Post
                              WHAT?? Do they answer at 3 a.m. also????
                              There are at least three ADAs working at the DA's Intake Division 24/7. They don't just accept/decline charges. They are also available if an officer wants to get a warrant. Harris County also has a criminal law hearing officer (magistrate) that is available at the county courthouse 24/7.
                              Last edited by Lawfficer; 10-24-2009, 02:01 AM.

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