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Criminal mischief and trespass
Summary of the topic
This topic pairs two property offenses that patrol officers deal with often. Criminal mischief under section 28.03(a) has three limbs, each committed intentionally or knowingly and without the effective consent of the owner: damaging or destroying the owner's tangible property, tampering with it and causing pecuniary loss or substantial inconvenience, or making markings on it. Only the tampering limb is satisfied by inconvenience without any monetary loss.
The grade follows the pecuniary loss. Loss under $100 is a Class C misdemeanor, $100 to under $750 is Class B, and $750 to under $2,500 is Class A. From $2,500 to under $30,000 it is a state jail felony, from $30,000 to under $150,000 a third degree felony, from $150,000 to under $300,000 a second degree felony, and $300,000 or more a first degree felony. Section 28.06 measures the loss: the fair market value for destroyed property, and the cost of repair or restoration for damaged property. Some property is raised regardless of the amount, including a habitation damaged by a firearm or explosive weapon, a livestock fence, and certain schools and places of worship. Section 28.03(e) allows losses under one scheme or continuing course of conduct to be aggregated.
Section 28.08 makes graffiti a separate offense: making markings on the tangible property of the owner with paint, an indelible marker, or an etching or engraving device, without effective consent. It uses the same seven-band loss ladder.
Criminal trespass under section 30.05(a) is entering or remaining on or in property of another without effective consent, after the person had notice that entry was forbidden or received notice to depart and failed to do so. Entry for this section means the intrusion of the entire body. Notice can be oral or written communication by the owner, fencing or other enclosure obviously designed to exclude intruders, a posted sign, purple paint marks that meet the statutory size and spacing, or the visible presence of cultivated crops.
Trespass is a Class B misdemeanor by default. It is a Class A misdemeanor in a habitation or a shelter center, on a critical infrastructure facility, or where the person carries a deadly weapon during the offense, and a third degree felony where committed in the course of smuggling of persons. Under subsection (d-3), where entry was forbidden solely because the person had a firearm or other weapon, the offense is a Class C misdemeanor punishable by a fine not exceeding $200, unless the person received personal notice that entry with a weapon was forbidden and failed to depart.
Provisions this topic covers
- Tex. Penal Code secs. 28.03, 28.08 and 30.05
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