                                           GREG       ABBOTT




                                               March 13,2008


The Honorable Jeff Wentworth                            Opinion No. GA-0606
Chair, Committee on Jurisprudence
Texas State Senate                                      Re: Whether the criminal trespass provisions of
Post Office Box 12068                                   section 30.05 of the Penal Code apply to
Austin, Texas 787 11-2068                               recreational vehicle parks (RQ-062 1-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.' 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'TCODEANN.5 27.03 1(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 1092were 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).


         '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].
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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 vehicle^."^ 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.

11.      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


         2The bills provided:

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

                                (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).

           3Thebills would have adopted the definition o f 'recreational vehicle" fiom the Transportation Code, as "amotor
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.CODEANN. 5 522.004(b) (Vernon Supp. 2007)).
The Honorable Jeff Wentworth - Page 3                      (GA-0606)



                 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.PENALCODEANN.5 30.05(a) (Vernon Supp. 2007).4

        Section 30.05(a) does not define "property," but the term includes real property. See
SarsJield 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.PENALCODEANN.fj30.05(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


         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   CODEANN. 5 30905(b)(2)(A) (Vernon Supp. 2007).

          '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. 5 30.05(b),
(el, (g).
The Honorable Jeff Wentworth - Page 4                        (GA-0606)



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., 8 19
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 StubbleJield 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.CODEANN. $5 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 . ~ . ) .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 "[ilf 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


         Thapter 94 applies to the relationship created when a landlord leases property in a "manufactured home
community" to a tenant. TEX.PROP.CODEANN.§ 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. 6 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).

           7AccordBrown 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 ofthe premises and [ofthe 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).
The Honorable Jeff Wentworth - Page 5             (GA-0606)



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 73 1,733-34 (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, "[ulnder Texas law, . . . a
guest in a hotel is a mere licensee, not a tenant." Pate1 v. NorthJieldIns. 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.
The Honorable Jeff Wentworth - Page 6           (GA-0606)



                                      S U M M A R Y

                      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,



                                             G R E ~ A B B O T T
                                             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
