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Is Santa Claus Breaking Laws?

Santa Claus is coming to town. He’ll also be coming down your chimney, which may cause you to wonder, as I often have, whether Santa commits a crime by entering your home through the chimney. Let’s discuss.

The Texas Penal Code defines the crime of burglary as when a person, “without the effective consent of the owner, . . . enters a habitation, or a building (or any portion of a building) not open to the public, with intent to commit a felony, theft, or an assault.” Therefore, the two best arguments that Santa does not commit a burglary when he comes down your chimney are that (1) he has the effective consent of the owner, and that (2) he does not enter with the intent to commit a felony, theft, or an assault. Let’s look at these elements a little more closely, shall we?

First, consent. Consent is a particularly dynamic concept in the law, especially in the sexual context, but since that’s not a very merry topic, we’ll skip right to the apropos: When it comes to entering a habitation, “effective consent” can take many forms. An explicit invitation would surely do the trick, but does anyone ever explicitly invite Santa into their home? Merely asking Santa to bring you something or telling him what you want for Christmas may not be enough, because it doesn’t necessarily imply an invitation to enter your home unless it can be proven that you knew Santa’s modus operandi when you asked him for something, in which case the fact that you asked may be evidence of effective consent. Also, leaving cookies and milk out for Santa may be circumstantial evidence of effective consent.

Second, intent. Santa would not be guilty of burglary even without effective consent to enter the habitation so long as he doesn’t enter with the intent to commit a felony, theft, or an assault. It’s the prosecutor’s burden to prove intent; which, because it is a state of mind, is often proved solely by circumstantial evidence. Now, we all know that Santa’s intent is to leave presents, and not to take them, but being caught with a sack full of gifts would look awfully suspicious. Also, consuming the cookies and milk could be seen as a theft because it deprives the owner of the property by disposing of the property “in a manner that makes recovery of the property by the owner unlikely.” However, lack of effective consent is also an element of theft, so we would have to go through the exercise above again as to the owner’s consent to be deprived of the property.

Another crime that Santa should be wary of is criminal trespass. Similar to burglary, criminal trespass involves a person entering or remaining on or in property without effective consent, but instead of the element of intent to commit another crime once inside, a trespass occurs when the person had notice that the entry itself was forbidden, or received notice to depart and failed to do so. The Texas Penal Code defines what constitutes “notice” for purposes of the criminal trespass statute, which includes “fencing or other enclosure obviously designed to exclude intruders or to contain livestock.” Now, this doesn’t require the fence to be on your roof or around your chimney, or to be designed to contain flying reindeer, it merely must be obviously designed to exclude ordinary intruders or to contain ordinary livestock. Notice may also be given by a sign placed “at the entrance to the building, reasonably likely to come to the intention of intruders, indicating that entry is forbidden.” Again, it is not necessary for the sign to be placed on your chimney. Incidentally, if Santa has a license to carry a handgun, you can forbid him from entering your home with a concealed or openly carried handgun by displaying the appropriate sign in accordance with the requirements of the Texas Penal Code.

You may have noticed that lack of “effective consent” is an element of each of the crimes discussed above that Santa is at risk of committing. Therefore, it would help Santa to beat a burglary or trespass rap if you would explicitly invite him in, or at least leave a note by the milk and cookies that reads: “for Santa.” However, should Santa happen to find himself in jail on Christmas Eve, movies such as “The Santa Clause,” starring Tim Allen, and “The Christmas Chronicles,” starring Kurt Russell, indicate that (spoiler alert) one of Santa’s elves will inevitably break him out of jail to save Christmas, so you needn’t worry if you neglected to explicitly invite him in this year.

Merry Christmas, and Happy New Year!

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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