Tex. Civ. Prac. & Rem. Code §§ 16.003(a), 41.003, 41.008
Trespass to real property in Texas — nominal damages, and intent to enter rather than to harm
A claim in Texas district and county courts · Last verified August 26, 2026
Trespass protects possession. It is the claim for someone coming onto your land without permission, or putting something on it, and it is one of the few Texas torts where you can win without proving you lost anything — nominal damages are available for the entry itself.
The intent that matters is the intent to enter, not the intent to trespass. A neighbour who believed in good faith that the fence line was correct has still trespassed if it was not.
What the claim is
Someone came onto land you own or possess without permission, or caused something to come onto it.
Where the right comes from
Common law.
What a plaintiff has to prove
- The plaintiff owns or has a lawful right to possess the property.
- The defendant entered the property physically, intentionally and voluntarily.
- The entry was unauthorised.
- Injury — though nominal damages will do.
Possession, not ownership
The claim belongs to whoever has the right of possession. A tenant can sue for trespass; a landlord out of possession usually cannot, except for injury to the reversion.
Entry can be indirect
Physical entry includes causing a thing to enter — water diverted onto the land, debris, a structure that encroaches, particulates in some circumstances. It does not include purely intangible invasions such as noise, odour or light, which are the province of nuisance.
How long you have to file
Two years, under CPRC § 16.003(a), which names "trespass for injury to the estate or to the property of another."
For a continuing trespass, a new claim accrues as the trespass continues, so a plaintiff may recover for the two years preceding suit. For a permanent trespass, the period runs from when the injury became permanent — and the characterisation is often the whole limitations fight.
What has to happen before you file
Nothing.
What the claim pays
Actual damages, measured by the diminution in the property's market value for a permanent injury, or the cost of restoration plus loss of use for a temporary one.
Nominal damages, where the entry caused no measurable harm. This is what makes trespass useful for establishing a boundary or stopping an encroachment.
Exemplary damages on clear and convincing proof of malice under CPRC § 41.003, capped by CPRC § 41.008.
Injunctive relief, which is often the real object — a court order to stop the entry or remove the encroachment.
No attorney's fees absent a statute or contract.
Who can be sued
The person who entered.
Anyone who directed or caused the entry, including a company whose contractor came onto the land.
A person who refuses to remove something they placed on the land, which can make the trespass a continuing one.
Permanent or continuing — the limitations question
The characterisation decides the deadline and the damages.
A permanent trespass is one that is constant and continuous, or that will continue indefinitely — a building that encroaches, a pipeline laid across the land. One claim accrues, damages are the diminution in market value, and the two-year period runs from when the injury became permanent.
A continuing trespass is intermittent or abatable — a neighbour who drives across the corner of the lot each week. A new claim accrues with each entry, and the plaintiff recovers for the two years preceding suit.
Defendants argue permanence to start the clock earlier. Plaintiffs argue continuity to keep it running. The question is often decided on the evidence about whether the condition can practically be abated.
Trespass below the surface
Texas has a substantial body of law on subsurface entry, because mineral and surface estates are routinely severed here.
The general rule is that a surface owner's possessory rights extend downward, so an unauthorised subsurface intrusion can be a trespass. But the mineral estate is the dominant estate: a mineral owner or lessee has an implied right to use as much of the surface as is reasonably necessary to produce the minerals, and conduct within that right is not a trespass.
Disputes about drilling that crosses a lease line, injected fluids that migrate, and fracture propagation are litigated on those principles, and the remedy in most of them turns on proof of actual injury rather than on the entry alone.
Common defenses
- Consent or licence. Permission defeats the claim — but a licence can be revoked, and an entrant who stays after revocation becomes a trespasser.
- Easement or other legal right of entry, including utility easements and public rights of way.
- Necessity, in narrow circumstances.
- The plaintiff has no possessory interest.
- Limitations, turning on whether the trespass is permanent or continuing.
What people get wrong
You do not need to prove damages. Nominal damages are available, and a trespass judgment can settle a boundary question that a damages claim never would.
Intent to enter is what counts. A defendant who thought the land was theirs, or did not know where the line was, has still trespassed. Good faith goes to exemplary damages, not to liability.
An expired invitation makes a trespasser. A guest, contractor or former tenant who stays after permission ends is trespassing.
Noise and odour are not trespass. Intangible interference is a nuisance claim, and Texas keeps the two separate.
Where it came from
Trespass to land is among the oldest common-law actions, and its shape still shows that: it protects the possessor's exclusive right to the land as a matter of principle rather than of loss, which is why nominal damages have always been available.
Texas retained that structure and added the modern overlay — the two-year period in § 16.003, the exemplary damages standard and cap in chapter 41, and a body of oil and gas case law about subsurface entry that has no equivalent in most states.
Common questions
How long do I have to sue for trespass in Texas?
Two years. For a continuing trespass, you can generally recover for the two years before suit.
Do I have to prove I lost money?
No. Nominal damages are available for an unauthorised entry that caused no measurable harm.
What if they did not know it was my land?
They are still liable. The intent required is the intent to enter, not the intent to trespass.
Can I recover attorney's fees?
Not without a statute or a contract that provides for them.
Is noise from next door a trespass?
No. Intangible interference — noise, odour, light — is a nuisance claim.
Can I get an injunction?
Yes, and in boundary and encroachment cases it is usually the relief that matters most.