Logger Removed Trees from the Wrong Property

[dyslexicDancer]

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Are you an attorney?

[eerelations]

What difference does that make? Given that he's correct...

[dyslexicDancer]

It makes a huge difference

I have an investigator from the Sheriff's office and an investigator from the Forest Service both telling me that this is a crime that can and should be prosecuted ........ and they don't understand why the DA will not take the case.

Both of these guys are in Law Enforcement, both work in the legal system every day, and both tell me something different from this forum, so my confusion should be easy to understand.

I'm here seeking advice, and if adjusterjack is an attorney his advice is more relevant to me than some random auto mechanic who stayed at a holiday inn, additionally if he is an attorney I was going to ask if he could possible refer me to someone. I doubt I can afford it, but if Civil is my only recourse I'll have to see if it's something I can afford, so I was also going to ask what a case like this might cost, but before doing all that I wanted to make sure I was talking to someone in the legal field.

[llworking]

It makes a huge difference

I have an investigator from the Sheriff's office and an investigator from the Forest Service both telling me that this is a crime that can and should be prosecuted ........ and they don't understand why the DA will not take the case.

Both of these guys are in Law Enforcement, both work in the legal system every day, and both tell me something different from this forum, so my confusion should be easy to understand.

I'm here seeking advice, and if adjusterjack is an attorney his advice is more relevant to me than some random auto mechanic who stayed at a holiday inn, additionally if he is an attorney I was going to ask if he could possible refer me to someone. I doubt I can afford it, but if Civil is my only recourse I'll have to see if it's something I can afford, so I was also going to ask what a case like this might cost, but before doing all that I wanted to make sure I was talking to someone in the legal field.

Well, you could always contact the TX AG's office and see if they agree and will put some pressure on the DA. You could also contact the Mayor's office and see if they agree and will put some pressure on the DA.

I disagree with the others to an extent. Some feet over the property line is easy to consider as a mistake that requires some civil compensation. 5-7 acres is a bit unbelievable as a simple mistake.

However, as I previously advised, you really do need to sue both the logger and the neighbor because they both profited unjustly and damaged you. Its quite possible that you can find an attorney who will take the case on contingency. Not guarantee, but absolutely worth consulting a few attorneys.

[flyingron]

I disagree with the others to an extent. Some feet over the property line is easy to consider as a mistake that requires some civil compensation. 5-7 acres is a bit unbelievable as a simple mistake.

It matters not if it was a simple mistake or gross negligence, the statute is CLEAR, it requires intentional harvesting on land known not to be yours to cut. This appears not to be criminal, but an entirely civil matter.

[dyslexicDancer]

Well, you could always contact the TX AG's office and see if they agree and will put some pressure on the DA. You could also contact the Mayor's office and see if they agree and will put some pressure on the DA.

Very good advise, I had not thought about contacting the Mayor's office

I disagree with the others to an extent. Some feet over the property line is easy to consider as a mistake that requires some civil compensation. 5-7 acres is a bit unbelievable as a simple mistake.

I agree completely, if we were talking about a few feet over the property line no big deal. However they cut all her property and the vast majority of mine. No way to make an "honest" mistake like this. Also, while there was no actual fence, our property lines were pretty easy to see because there were still quite a few old fence posts every 50 or so feet that marked the property boundaries where a fence used to be.

However, as I previously advised, you really do need to sue both the logger and the neighbor because they both profited unjustly and damaged you. Its quite possible that you can find an attorney who will take the case on contingency. Not guarantee, but absolutely worth consulting a few attorneys.

I also agree with this. Sue just one and they will blame the other person.

Know any good (hopefully inexpensive) attorneys in the DFW area?

[Taxing Matters]

It makes a huge difference

I have an investigator from the Sheriff's office and an investigator from the Forest Service both telling me that this is a crime that can and should be prosecuted ........ and they don't understand why the DA will not take the case.

It certainly may be a crime. But the likely reason the DA won’t take it is that proving it is crime to a jury may be quite difficult. Without knowing more about the land at issue and what your neighbor and logger knew about where the property lines really were, I can’t say just how difficult that case would be. Unless the DA can prove that the defendants knew they were taking property that did not belong to them they won’t get convicted. It’s not going to be enough here to show that they did remove your trees. The DA has prove this was more than mere negligence. And he/she must prove the criminal case beyond a reasonable doubt, not the lower standard of preponderance of evidence that applies to most civil cases.

Whatever the DA’s reason, it is his choice whether to pursue prosecution or not. There is nothing you can do to force the DA to prosecute a case he/she does not wish to pursue. So this is out of your control. What is in your control is suing the neighbor and the logger for the damages suffered by what they did.

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Know any good (hopefully inexpensive) attorneys in the DFW area?

If you can find a lawyer who will take it on a contingent fee basis then the lawyer does not have to be paid up front. He or she only gets paid a portion of whatever he or she manages to recover for you in the lawsuit. So the lawyer doesn’t necessarily need to be “inexpensive.”

[dyslexicDancer]

It matters not if it was a simple mistake or gross negligence, the statute is CLEAR, it requires intentional harvesting on land known not to be yours to cut. This appears not to be criminal, but an entirely civil matter.

by this standard what is to stop a person from logging anything they wanted? I could log your property and you could do nothing about it if I remained silent.

It would seem that it is actually impossible to PROVE what is going on in someones head, especially given the fact they have the right to remain silent in criminal matters.

I think I understand the Mens Rea (guilty mind) component to criminal prosecution, however I understood this to be a reasonable person standard. I'll admit it's been many years since I went to college and I didn't go to law school so forgive me if my memory is incorrect. Criminal law wasn't my area of study in College.

So are criminal prosecutions based upon a reasonable person standard? if not it would seem impossible to prosecute any crime when the defendant remains silent as you could not PROVE that they had a guilty mind.

[Taxing Matters]

It would seem that it is actually impossible to PROVE what is going on in someones head, especially given the fact they have the right to remain silent in criminal matters.

The mens rea requirement for most crimes is simply that the defendant intended to do the acts that constitute the offense. For the most part, this is pretty easy to show because committing the act also indicates the necessary intent. For example, if Joe punches Bill in the face, Joe would have a hard time arguing he didn’t intend to punch Bill because if he had not intended to do that he would not have thrown the punch. So proving the mens rea for the assault would be done by proving the acts that constitute the assault.

Here, it’s a bit different. Texas Penal Code section 31.03(a) defines theft as follows: “Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.” (Italics added.) As you can see from the final phrase of that sentence that I put in italics, it is not enough to prove that the defendant took property that did not belong to him (the equilvalent of throwing the punch in my previous example). There is an additional requirement in the statute. The state must also prove that the defendant intended to deprive you of your property. If the defendant truly believed that it was her own trees that were being cut then she has not violated the theft statute because she did not intend to deprive you of your property.

In order to prove the intent when the defendant has not confessed to it, the prosecution must present evidence from which intent can be inferred. For example, clear property boundaries would help, since if she had to have seen the boundary markers one could infer she knew she was taking trees from your property. So the exact details of the property here would matter. The more clear it had to have been to the neighbor where the property lines were the easier the prosecution’s case would be. But hopefully you understand the challenge the prosecution has here: unless it can convince a jury beyond a reasonable doubt that the defendant had to know she was removing trees from your property rather than her own the prosecutor would lose the case.

[flyingron]

If they just showed up and took your trees, the prosecutors might have an easier time showing intent to poach the lumber. However since they were in a legitimate logging operation, it's harder to show intent rather than a (perhaps negligent) mistake.

But again, even if a crime was committed, you have no RIGHT to demand prosecution. The injured party in a criminal action is society and it is the state that determines when that needs to result in prosecution not the putative victim.