Persons are discovered riding without permission in railroad cars. Normally that would be a Class C misdemeanor. In this particular case, the police are called to remove the persons from railroad property. The persons choose not to cooperate, i.e., they disregard verbal commands and run along the tracks, engaging the officers in a foot chase. The railroad conductor, on his own volition, determines to halt all railroad traffic in the area (including an Amtrak unit) "for safety of all individuals," until everyone is in custody.

The railroad would now like this case prosecuted under 28.07(e)(3) as involving a pecuniary loss of $1500 or more caused by the person who entered or remained on the railroad property without effective consent. I am pretty well satisfied that the result, stoppage of the trains at a cost of $3000 per minute, would not have occurred but for the conduct of the persons. But, was the decision of the conductor really foreseeable? Would the same decision have been made if there were only one trespasser as opposed to five? Only two of the five chose to run from the police; are they the only two who caused the loss? Furthermore, is this the type of pecuniary loss envisioned by mere entry upon or remaining upon the property? And can it not be pretty easily said the decision to stop the trains was clearly sufficient to produce the result, but, without that choice being made, the conduct of the persons was clearly insufficient? 6.04(b) may apply here as well. Would you accept this case?

How about a pair of class B misdemeanors?
38.04. EVADING ARREST OR DETENTION.
42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.

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Originally posted by Martin Peterson:
Would you accept this case?

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No. The Class C, yes, but not the felony.

I don't see "inconveniencing a RR" mentioned as a type of "pecuniary loss" under PC 28.06 (Amount of Pecuniary Loss). Destroyed, yes; damaged, yes; but inconvenienced? No. (Note that I don't think 28.06 is an actual definition of "pecuniary loss", mind you, but it is instructive.)

I do not see how the railraod had any other choice but to STOP all traffic until the situation had ended.

What if an officer had gotten run over by a train? What if a suspect had gotten run over by the train? Then everyone would be complaining about why they didn't stop the trains.

This is no different than if you had some idiots running around on a flight line being chased by the cops. And I will bet that there is some federal regulation that prohibits the trains from running when idiots are afoot in the train yard.

And even if there isn't, I am sure that the railroad has some sort of safety regs (i.e. OSHA stuff) that instructs their staff to shut things down when civilians are on the tracks. So the Conductor was most likely acting according to railraod regs, federal safety regs and stuff like that.

Charge them with a felony, I say.

As usual, sir, your judgment is impeccable.

The issue is not, of course, the reasonableness of the conduct of the railroad. They can stop their trains for any reason whenever they want. To me, the issue is whether the prospective defendants caused the loss, i.e. whether this particular statute was intended to protect against this particular harm. Interestingly enough, I will get a judicial opinion on the matter next week. I am hoping the judge says my facts do not constitute probable cause to believe a felony was committed (with my apologies to the railroad, the police, and RTC).

Criminal trespass can be a location or in a vehicle as well. I don't have the statutes in front of me, but would that apply in your fact situation?

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What if an officer had gotten run over by a train?. . . . Charge them with a felony, I say.

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So, if someone had died, would it be felony murder?

28.07. INTERFERENCE WITH RAILROAD PROPERTY.  
(a) In this section:     
  (1) "Railroad property" means:
    (A) a train, locomotive, railroad car, 
        caboose, work equipment, rolling stock, 
        safety device, switch, or connection 
        that is owned, leased, operated, or 
        possessed by a railroad;  or
    (B) a railroad track, rail, bridge, trestle, 
        or right-of-way owned or used by a 
        railroad.
  (2) "Tamper" means to move, alter, or interfere 
      with railroad property. 
   
(b)  A person commits an offense if the person:
  (1) throws an object or discharges a firearm 
      or weapon at a train or rail-mounted work 
      equipment;  or
  (2) without the effective consent of the owner:
    (A) enters or remains on railroad property, 
        knowing that it is railroad property;
    (B) tampers with railroad property;
    (C) places an obstruction on a railroad track 
        or right-of-way;  or        
    (D) causes in any manner the derailment of a 
        train, railroad car, or other railroad 
        property that moves on tracks.

(c) An offense under Subsection (b)(1) is a  
    Class B misdemeanor unless the person causes 
    bodily injury to another, in which event the 
    offense is a felony of the third degree.

(d) An offense under Subsection (b)(2)(A) is a 
    Class C misdemeanor.    
     
(e) An offense under Subsection (b)(2)(B), 
    (b)(2)(C), or (b)(2)(D) is a Class C 
    misdemeanor unless the person causes pecuniary 
    loss, in which event the offense is: 
  (1) a Class B misdemeanor if the amount of 
      pecuniary loss is $20 or more but less 
      than $500;
  (2) a Class A misdemeanor if the amount of 
      pecuniary loss is $500 or more but less 
      than $1,500;
  (3) a state jail felony if the amount of 
      pecuniary loss is $1,500 or more but less 
      than $20,000;  
  (4) a felony of the third degree if the amount 
      of the pecuniary loss is $20,000 or more 
      but less than $100,000;
  (5) a felony of the second degree if the amount 
      of pecuniary loss is $100,000 or more but 
      less than $200,000;  or
  (6) a felony of the first degree if the amount 
      of the pecuniary loss is $200,000 or more.

(f) The conduct described in Subsection (b)(2)(A) 
    is not an offense under this section if it is 
    undertaken by an employee of the railroad or 
    by a representative of a labor organization 
    which represents or is seeking to represent 
    the employees of the railroad as long as the 
    employee or representative has a right to 
    engage in such conduct under the Railway 
    Labor Act (45 U.S.C. Section 151 et seq.).

See also: 28.06. AMOUNT OF PECUNIARY LOSS

The first rule of construction regarding a statute is to read the statute. I see now that (e) does not provide for enhancement of an offense under (b)(2)(A) to begin with. Duh. Sorry to have troubled everyone.

What if you go for "tamper" under (b)(2)(B)?

Tamper is defined in subsection (a) to include interference with trains operated by the railroad.

In this theory, (b)(2)(A) is an upgrade to simple trespass because everyone should already know to keep off the tracks... It is special protection for railroads that eliminates the criminal trespass warning. So (b)(2)(B) comes into play when the trespass interferes with the operation of the railroad.


I am just speculating on this, I have no caselaw to support this method of railroading the defendant.