Criminal Trespass Statute

The signs at Diversion Lake cite as authority for the threat of prosecution TPC Sec. 30.95.  The only logical interpretation I have been able to come up with for "TPC" is "Texas Penal Code," but the Texas Penal Code has no Sec. 30.95.  The sign probably intends to refer to Texas Penal Code Sec. 30.05, which deals with criminal trespass.  That section provides as follows:

§ 30.05.  CRIMINAL TRESPASS.  (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.                          
(b)  For purposes of this section:                                            
(1)  "Entry" means the intrusion of the entire body.                         
(2)  "Notice" means:                                                         
(A)  oral or written communication by the owner or
someone with apparent authority to act for the owner;
(B)  fencing or other enclosure obviously
designed to exclude intruders or to contain livestock;
(C)  a sign or signs posted on the property or at
the entrance to the building, reasonably likely to come to the
attention of intruders, indicating that entry is forbidden; 
(D)  the placement of identifying purple paint
marks on trees or posts on the property, provided that the marks
are:
(i)  vertical lines of not less than eight
inches in length and not less than one inch in width;
(ii)  placed so that the bottom of the mark
is not less than three feet from the ground or more than five feet
from the ground;  and
(iii)  placed at locations that are readily
visible to any person approaching the property and no more than:
(a)  100 feet apart on forest land;  or                                   
(b)  1,000 feet apart on land other
than forest land;  or               
(E)  the visible presence on the property of a
crop grown for human consumption that is under cultivation, in the
process of being harvested, or marketable if harvested at the time
of entry.
(3)  "Shelter center" has the meaning assigned by
Section 51.002, Human Resources Code.
(4)  "Forest land" means land on which the trees are
potentially valuable for timber products.
(5)  "Agricultural land" has the meaning assigned by
Section 75.001, Civil Practice and Remedies Code.
(6)  "Superfund site" means a facility that:                                 
(A)  is on the National Priorities List
established under Section 105 of the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. Section 9605);  or
(B)  is listed on the state registry established
under Section 361.181, Health and Safety Code.
(c)  It is a defense to prosecution under this section that
the actor at the time of the offense was a fire fighter or emergency
medical services personnel, as that term is defined by Section
773.003, Health and Safety Code, acting in the lawful discharge of
an official duty under exigent circumstances.
(d)  An offense under Subsection (e) is a Class C misdemeanor
unless it is committed in a habitation or unless the actor carries a
deadly weapon on or about the actor's person during the commission
of the offense, in which event it is a Class A misdemeanor.  An
offense under Subsection (a) is a Class B misdemeanor, except that
the offense is a Class A misdemeanor if:
(1)  the offense is committed:                                               
(A)  in a habitation or a shelter center;  or                               
(B)  on a Superfund site;  or                                               
(2)  the actor carries a deadly weapon on or about his
person during the commission of the offense.
(e)  A person commits an offense if without express consent
or if without authorization provided by any law, whether in writing
or other form, the person:
(1)  enters or remains on agricultural land of another;                      
(2)  is on the agricultural land and within 100 feet of
the boundary of the land when apprehended;  and
(3)  had notice that the entry was forbidden or
received notice to depart but failed to do so.
(f)  It is a defense to prosecution under this section that:                  
(1)  the basis on which entry on the property or land or
in the building was forbidden is that entry with a handgun was
forbidden;  and
(2)  the person was carrying a concealed handgun and a
license issued under Subchapter H, Chapter 411, Government Code, to
carry a concealed handgun of the same category the person was
carrying.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. 
Amended by Acts 1979, 66th Leg., p. 1114, ch. 530, § 3, eff. Aug.
27, 1979;  Acts 1981, 67th Leg., p. 2385, ch. 596, § 1, eff. Sept.
1, 1981;  Acts 1989, 71st Leg., ch. 139, § 1, eff. Sept. 1, 1989; 
Acts 1991, 72nd Leg., ch. 308, § 1, eff. Sept. 1, 1991;  Acts
1993, 73rd Leg., ch. 24, § 1, eff. Sept. 1, 1993;  Acts 1993, 73rd
Leg., ch. 900, § 1.01, eff. Sept. 1, 1994;  Acts 1997, 75th Leg.,
ch. 1229, § 1, 2, eff. Sept. 1, 1997;  Acts 1999, 76th Leg., ch.
161, § 1, eff. Sept. 1, 1999;  Acts 1999, 76th Leg., ch. 169, §
1, 2, eff. Sept. 1, 1999;  Acts 1999, 76th Leg., ch. 765, § 1, 2,
eff. Sept. 1, 1999;  Acts 2001, 77th Leg., ch. 1420, § 16.002,
21.001(94), eff. Sept. 1, 2001;  Acts 2003, 78th Leg., ch. 1078,
§ 1, eff. Sept. 1, 2003;  Acts 2003, 78th Leg., ch. 1178, § 1,
eff. Sept. 1, 2003;  Acts 2003, 78th Leg., ch. 1276, § 14B.001,
eff. Sept. 1, 2003.

Given the presence of the sign, the basic elements of the offense for a paddler not carrying a deadly weapon, i.e., the points a prosecutor would have to prove to get a conviction, would be that the paddler was on the land of another without permission.  But we know from Diversion Lake Club v. Heath that the water is public and the public has a right to use it.  Therefore the signs are misleading, no doubt intentionally so.  Given Diversion Lake Club v. Heath, the logical conclusion is that the signs were placed in the water in bad faith, that they are intended to wrongfully intimidate the public from exercising its right to use the water of Diversion Lake.

Further evidence of the wrongful intent is that the penalties cited by the sign are exaggerated.  Under Penal Code Sec. 30.05, the offense is a Class C misdemeanor unless it involves a habitation, which paddling on the lake clearly would not, or unless the actor carries a deadly weapon.  But the penalties threatened are closer to those for a Class B misdemeanor.  Here are the misdemeanor penalties of the Texas Penal Code:

SUBCHAPTER B. ORDINARY MISDEMEANOR PUNISHMENTS

§ 12.21.  CLASS A MISDEMEANOR.  An individual adjudged 
guilty of a Class A misdemeanor shall be punished by:
		(1)  a fine not to exceed $4,000;                                             
		(2)  confinement in jail for a term not to exceed one 
year;  or             
		(3)  both such fine and confinement.                                          

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.  
Amended by Acts 1991, 72nd Leg., ch. 108, § 1, eff. Sept. 1, 
1991;  Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.


	§ 12.22.  CLASS B MISDEMEANOR.  An individual adjudged 
guilty of a Class B misdemeanor shall be punished by:
		(1)  a fine not to exceed $2,000;                                             
		(2)  confinement in jail for a term not to exceed 180 
days;  or             
		(3)  both such fine and confinement.                                          

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.  
Amended by Acts 1991, 72nd Leg., ch. 108, § 1, eff. Sept. 1, 
1991;  Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.


	§ 12.23.  CLASS C MISDEMEANOR.  An individual adjudged 
guilty of a Class C misdemeanor shall be punished by a fine not to 
exceed $500.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.  
Amended by Acts 1991, 72nd Leg., ch. 108, § 1, eff. Sept. 1, 
1991;  Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

Caveat:

Despite the above information, I do not encourage anyone to ignore the signs and paddle the lake.  We have been told that law enforcement authorities in the area wrongfully cite people for paddling despite the above points.  If you are cited, you will be in the position of establishing a defense.  Doing so will not be cheap in your time or your money.  Even if you have money to burn, the better approach would be through the civil courts and, if we can build a sufficient case on our budget, a criminal charge against the homeowners' association for blocking a public right of way.  See Cornelison v. State.

A final point to remember before offering yourself as a sacrificial victim, is that right does not always prevail.  Our legal system is among the best, but it is far from perfect.  Even though you might be in the right, you could still be convicted and have the penalties enforced against you.

These points exemplify the perniciousness of the signs and the threat they embody.  The signs are a significant deterrent from exercising your right to enjoy the waters of Diversion Lake, showing that the threat is all the more wrongful.  The signs need to come down--by legal process, not self-help.