Always note that state law may be
more restrictive on police power than the U.S. Constitution.
Does a tenant, who resides at an apartment complex and who has the key access to the apartment’s completely gated swimming pool, commit criminal trespass if he enters (without consent of the apt manager) the swimming pool area to swim after pool hours? The pool is gated and is locked with a key; however, it’s the same key which is used by the tenants to enter during pool hours. Does the tenant and its guest commit criminal trespass (Texas Law) or is this a Landlord Tenant Lease Violation?
Is that area of the pool described above, which is restricted access by key and only tenants have access, would that pool area be considered a PUBLIC PLACE. The gate is a wrought iron gate and the pool is behind the apartment office. There are about 500 apartment in the complex.
The question at hand directly refers to Tex. Penal Code § 30.05 (Criminal Trespass). This statute defines criminal trespass as follows:
(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.
This question is best fit for a Texas attorney; however, generally speaking, a tenant and his or her guest have the right to the use and enjoyment of the apartment that he or she leases and all common areas. Thus, incorrectly using a “common area” to which the tenant has access via a key, or using the common area “after hours,” would amount to an apartment rule or lease violation, the remedy for which is most likely contained in the lease. Thus, generally, if a tenant and his or her guest went to the pool after hours, they are merely violating a rule of the apartment complex rather than committing a criminal trespass. However, if a non-tenant who is not a guest of a tenant were to jump the fence, then this may violate the statute. However, specific questions on interpretation of Texas statutes should be directed to a local prosecutor.
