TRESPASSING:
Case law concerning trespassing at apartment complexes can be found at (Westlaw)
site as: 995 S.W. 2d 284.
The opinions stated below are not to be construed as legal advice. Each situation can
be different from the next and case law can change. Your final determination on
whether or not you run the risk of trespassing should be obtained from a lawyer,
namely, the attorney who hires you to serve the process. It is not clear how the above
case law applies to private process servers.
Basically, a person does not commit the offense of trespass at an apartment complex in
what is considered "common areas". This includes the parking lot and sidewalks or
areas [that do not] harbor the "intimate activity associated with the 'sanctity of a man's
home and the privacies of life'." This extends to areas that would not give a person "a
reasonable expectation of privacy in that area". Further, the erection of fences alone
does not create a constitutionally protected expectation of privacy. This is more clearly
illustrated as an apartment or condo complex that provides a "911 key" to authorities for
entrance in an emergency. Note: Criminal laws against trespass are meant, in part, to
protect against intruders who "poach, steal livestock and crops, or vandalize property".
Clearly, an attempt to serve process in itself does not insinuate a criminal intention.
But, as always, TPW suggests that everyone err on the side of caution. If there is any
question whatsoever, check before you enter a property. Your certification, and more
importantly, your freedom are not worth one single service. And with the PSRB
behaving as it has, It's better to check first and return at a later time. Oh, and don't
forget the famous "purple paint". In 18 years and thousands of services, this author has
never encountered a purple paint mark indicating no trespassing. But for some reason,
some in the industry think it's worth mentioning, mostly for making an obscure point on
the extent of their knowledge. Congratulations Mr. Know-it-all!
Private process servers should not jump locked gates or other enclosed areas on
private property that are obviously designed to keep people out. A gate with no lock is
usually designed to keep livestock in, especially in Texas. As always, there are other
options. Service by certified mail or some other form of substituted service may suffice.
Sometimes, the only option is to wait outside the property for the person to arrive or
leave. Our clients will just have to understand and most do. They don't want their
process server to subject themselves to a civil liability, a criminal conviction, or worse,
get shot or attacked by a dog. In some cases crossing a cattle guard can be
considered trespassing. If ever you are uncertain, it is always better to try and call the
witness/defendant from the street. You can also leave a card or note and return at a
later time. Always check with your client if you are unsure.