Loitering Laws: An Overview
The concept of loitering laws, also known as "vagrancy" laws, are found in most U.S. states and jurisdictions. These laws are designed to prohibit individuals from lingering in a public place for an indefinite duration in a manner that may be considered disruptive or detrimental to the order, comfort, and/or convenience of a community.
Loitering laws in Texas have a long and storied history. The earliest record of such a law is in our state constitution of 1836. This section of the constitution stated that "Any person who shall roam or stroll about in the night-time, or under pretense of carrying on business, shall be deemed a night-walker." This provision was incorporated into our state criminal statutes and stands as both the genesis and the exception to the provision. Texas Penal Code Sec. 47.03 (previously 42.05) states that "A person commits an offense if he intentionally or knowingly, without legal privilege and with knowledge of the fact that his conduct is reasonably likely to disturb or alarm another." The act of loitering in violation of this criminal provision carries with it a Class C misdemeanor, which in Texas is punishable by a fine of $500. There are multiple potential affirmative defenses to the crime of loitering.
Various Supreme Court decisions have changed the landscape of loitering laws over the course of several decades. Some of the most important cases to this area of the law include: 1) Papachristou v. City of Jacksonville 405 U.S. 156 (1972); 2) Kolender v. Lawson 461 U.S. 352 (1983); 3) crews v. State, 532 Your 405, (Tex. Crim. App. 1982); 4) Gutierrez by Gutierrez v. City of Elmendorf, Tex. 11 F.3d 100 (1993); followed by 5) City of Chicago v. Morales 527 US 41 (1999); 6) City of Chicago V. Morales 527 US 41 1999); 7) State v. Barletto, 960 A.2d 30 (NJ Sup 2008); 8) State v. Fedorov P.3d 1246 (Utah 2005); 9) City of Montgomery v. Doss , 157 So.3d1 (Ala 2014); 10) Ala. Code pct. 15-11-22 (Ala 2015).
Loitering is often confused in the public mind with panhandling. English dictionaries define it as, "To linger aimlessly, idly," or "To be in a place without a specific reason or purpose to do something."
Panhandling is defined by legal scholars as, "To accost or stop someone in public for the purpose of begging or soliciting money or goods."
The difference in loitering and panhandling is the same as that between a person idling in their car in front of your house until you give him a ride, and a homeless person begging on the street. Texas Guards Against "Loitering For The Purpose Of Prostitution"
The "loitering" law employed in Dallas has been struck down in federal courts as unconstitutional in Lewis v. Uniformed Firefighters Ass’n, Local 217 (UFA), after a long litigation that resulted in a favorable ruling in the Second Circuit Court of appeals.
The ordinance was deemed unconstitutional because it: 1) failed to provide clear notice; and 2) was unconstitutionally overbroad and vague. Applying the logic and law from Federal Courts, as well as the Texas Penal Code, we can see that the applicability of "loitering law" is not so crystal clear.
In some Texas municipalities, there are ordinances against loitering that prohibit a person from standing idle outside of stores for an extended period of time. In referring to these laws, some citizens – and even police officers – incorrectly apply loitering laws in their communities.
Section 47.03 of the Texas Penal Code does not apply to a citizen standing outside of a business, on a sidewalk, for a period of time. Indeed, in an opinion released by Texas Attorney General Ken Paxton, former AG John Cornyn stated that ordinances against loitering outside of business were pre-empted by Texas statute, and unenforceable.
As a citizen, if you are arrested for this type of offense it would be wise to call an attorney with experience defending type of charges.
Loitering Defined by Texas Law
The legal definition of loitering in Texas is codified under Section 42.15 of the Texas Penal Code, which outlines prohibited conduct and specific exceptions. The simplest explanation is that it is a crime to stand around, wander, or congregate in an area without any apparent purpose. The Penal Code Stating "A person commits an offense if he intentionally or knowingly loiters." Since this law does not explain what "to loiter" means legally, we have to look at how the law explains exceptions to the loitering laws. The law says that in order to prove someone was loitering, prosecutors must show that you intended to cause alarm, harm, or the intent to commit a crime at the location.
Different areas of the state may have slightly different definitions of loitering. The Texas Penal code makes violators of loitering laws subject to Class C misdemeanor charges in most places. However, certain cities and counties, such as Houston and Harris County, have designated areas where loitering can be upgraded to a higher punishable crime, such as a Class B misdemeanor. More serious charges can result if the loiterer has a history of using loitering to determine whether to commit another crime. Provisions in The Penal Code suggest that repeat offenders could face up to a year in jail for their actions.
Texas Statutes Setting Penalties for Loitering
In Texas, a person found guilty of committing a loitering offense may be hit with the following penalties: A fine of up to $500 Up to six months in county jail The specific penalty imposed depends on whether the defendant is a first-time or repeat offender. Loitering is a Class C misdemeanor if it is a first offense. A Class C misdemeanor is the least severe type of violation under Texas law. Fighting in public, graffiti, disorderly conduct, and criminal trespass are other crimes designated under Class C. A repeat offense results in elevated penalties. A Class B misdemeanor is the punishment for a subsequent loitering offense. This type of misdemeanor is one category below a felony. A Class B misdemeanor can result in a fine of up to $2,000, one year in jail, or both.
Grounds for Most Common Loitering Defenses
It’s important to remember that being arrested for loitering does not equal an automatic conviction. There are a variety of defenses that can be used to challenge a loitering charge.
Location, Location, Location
In some cities in Texas, certain areas have been designated as "safety zones" and are prohibited for loitering. However, if the loitering charge occurred in an area where the law is not properly posted or identified as a "safety zone", then it can be argued that no crime was committed. Additionally, if an individual was in an area where loitering was prohibited, the law must have been properly and conspicuously posted for an arrest to be lawful. The loiterer must also have had the ability to read or understand the notice as written. This is primarily for non-English speaking individuals who may have illegally loitered in an area that was off limits by English speakers, or those who were blind or visually impaired who could not see a posted notice.
Intent
Loitering statutes in Texas vary from city to city, so it is vital to understand the law in your area. If you are charged with loitering in an area where only certain activities are prohibited, it is not illegal to engage in any other activity that is not prohibited. Loitering only becomes an issue when you or someone else is engaged in a prohibited activity (such as gambling in a place where gaming is not allowed) and is associated with others in an area known for that activity. Even if the loiterer has not engaged in the crime, they can still be arrested for being in the wrong place at the wrong time.
Honesty
Mayor Annise Parker of Houston, Texas attempted to uphold one of the strictest anti-loitering laws in the country until it was recently overturned. Under her ordinance, it was illegal for anyone under the age of 17 to be on the street between midnight and 6 a.m. Now, the rules are that they must have a guardian or other adult with them at all times while walking along city streets. The overturning of the ordinance caused mayoral candidates to promise a cleanup plan to remove pan-handlers from major roadways and interchanges. While no one can be punished for standing still, the garden-variety defends that they were "just stopped for a minute" always seem to stand up in cases that involve sleeping or sitting.
Local Ordinances Impacting Loitering
Local ordinances are a common feature of municipal law across Texas and even where certain activities are prohibited by State law there may be stricter regulations on the local level. Particularly with loitering, a person may face a tougher enforcement and stricter punishment for behavior that might otherwise go unpunished at the State level.
At the State level, there are several criminal statutes that prohibit the act of loitering. For example, Section 47.01(6) of the Texas Penal Code defines the offense of ‘disorderly conduct’ to include "loitering" in places such as public driveways or porches, areas reserved for the purpose of police, fire, and ambulance crews, or with two or more other people. Section 47.61 of the penal code further provides that a person commits an offense if they intentionally or knowingly "engage in "loitering" by associating with two or more others in a public place while exhibiting unusual or irregular behavior that warrants alarm for the safety of persons or property in the vicinity." As noted in Attorney General Opinion KP-0090, prosecutions for these offenses are "rare indeed" and to date , there have been no documented prosecutions for either offense.
On the other hand, in cities like Houston, Dallas, or Austin, there are probably more arrests and prosecutions for the offense of loitering. Unlike the disorderly conduct offenses, the city ordinances prohibiting loitering are not premised on the prohibition of conduct that may or may not actually turn into criminal activity.
For instance, the City of Houston ordinances are much more comprehensive than those from the State of Texas. Chapter 8 of the City ordinances includes Section 8-4 which serves to prohibit loitering with the intent to engage in prostitution. Further, Section 8-6 prohibits loitering on a sidewalk or street for the purpose of begging. The City of Dallas Ordinance Sec. 27-5 serves to prohibit loitering by panhandling. The Austin municipal code provides a more comprehensive Section 3-3-2. However, with the Austin municipal ordinance, section (B) does go so far as to permit a person to engage in loitering when the person is waiting for the "person’s vehicle or passenger vehicle service vehicle, commercial vehicle or trailer to pull up to the location where the person is standing."
Loitering Controversies and Debates
The application of loitering laws in Texas is a subject of some controversy. Critics argue that such laws respect the rights of individuals to assemble freely, as constitutionally guaranteed. For proponents of these laws, there is a concern that the loitering laws are sometimes used for racially motivated practices, such as targeting those with darker skin for the primary inferences of being up to criminal activities.
Laws against loitering are more closely tied to issues such as homelessness, begging, prostitution and drug offenses than in other states, with lawmen using this provision to give out citations or even arrest people rather than using other means usually employed by enforcers of the law.
Opponents of loitering laws in Texas point to a number of studies that note about a quarter of all arrests made by the state’s police forces involve violence and, therefore, do not fall under loitering laws. In neighborhoods most associated with drug trafficking, such as the border cities of El Paso, Laredo and New Braunfels, those offenses account for barely 10 percent of citations written. In addition, these three cities are also where the highest numbers of loitering citations were issued.
The state board that oversees law enforcement in Texas has pointed to officers in those cities as being biased in their application of justice. A high percentage of citations issued by officers are found to be too vague or even not clearly written at all, which shows a lack of understanding or familiarity with the law and how to enforce it.
A number of court cases involving the application of loitering laws have been settled with outcomes that guided law enforcement in subsequent arrests. These include instances where individuals were arrested without due consideration for whether their loitering truly met the established conditions of the law. As a condition of the court ruling, such arrests were dismissed.
The Texas legislature, spurred on by lobbying groups throughout the state, has enacted several measures that specifically address what proponents of loitering laws in Texas have termed "gangs, drug dealers, prostitutes and drug users." Several re-definitions of loitering were established through such laws, making loitering more clearly referenced and making the classification of the instance involved into one of the above groups.
The best example of those stricter loitering laws in Texas came in the form of a 2001 law that specifically prohibited people from parking, standing, stopping or remaining at specific locations known for drug trafficking. These locations, as stated in the law, were business establishments, places of worship, day-care centers and private homes.
Recommendations for Charged Individuals
If you have been charged with loitering in Texas, it is important to take the situation seriously. Speaking with a lawyer before your court date is advisable, as they may be able to negotiate a dismissal or reduction of your charges. If your lawyer is able to work towards reducing a loitering charge down to a Class C misdemeanor, such as "disorderly conduct," this will not appear on your criminal history.
If a minor is charged with loitering, the parent of the minor may be called in for an in-station adjustment, which is essentially a warning. If the charges fall under the laws against "complicity" – that is , the minor was with someone who had committed a crime – the charges may be dismissed outright. You may also be offered a diversion program by the prosecutor. A written agreement between the prosecutor and the parent may be made early on, known as a "Memorandum of Understanding," and the charges will most likely be dismissed when the conditions are met.
Remaining out of trouble with the law over the following year is best. Having no further run-ins with the law during the period should be the goal. If the charges cannot be dismissed and you end up going to court, having an experienced lawyer at your side is essential.