https://www.austinchronicle.com/daily/news/2012-12-27/alas-poor-santa/

Alas, Poor Santa!

By Michael King, December 27, 2012, 4:20pm, Newsdesk

On Friday afternoon, Dec. 21 – with Christmas only days away – Santa Claus stopped by the Texas Capitol to spread a little holiday cheer, asking passersby to join him in chalking inspirational notes on the driveway. What he got in return -- along with his helper, "Corey Elf" – was an arrest for "criminal mischief" and "evading arrest."

The Great Christmas Tree Massacree began when a man dressed as Santa -- later identified as James Peterson of Occupy Austin -- began asking passersby for to express their Christmas wishes on the driveway below the South Steps. According to a statement released later by Occupy Austin, "Santa said his favorite word was 'Community.' Various children wrote words like 'Peace,' 'Friendship,' and 'Grace,'" said Occupy Austin's Lainie Duro, a witness to the arrest."

Although several people, including children, wrote on the sidewalk in chalk, initially only Santa was arrested by at least four Texas Department of Public Safety officers, as he walked away from the Capitol grounds. He was charged with "criminal mischief" and "evading arrest," and loudly demanded to know why he was being arrested. "I'm a nice person," shouted Santa. "This is not right!"

Shortly thereafter, Santa's helper, identified only as "Corey Elf," wrote "Free Santa" on the sidewalk; he was also arrested on a charge of criminal mischief.

Asked for an explanation, a DPS spokesman told NewsDesk, "At the beginning of the incident on the South Steps of the Capitol, a Preservation Board employee asked Peterson to stop defacing Capitol grounds, and he refused. He ran when confronted by state troopers. He was arrested for Criminal Mischief and Evading Arrest. A second suspect was arrested for Criminal Mischief as well." The spokesman declined to answer why arrests were necessary, when patience and perhaps a garden hose would readily eliminate the chalk.

We were referred instead to the Texas Penal Code, Ch. 28 Sec. 28.03, which defines criminal mischief in part as "intentionally or knowingly [making] markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner." Presumably, chalking constitutes a Class C misdemeanor, i.e., when "the amount of pecuniary loss is less than $50." Of course, the DPS or the state of Texas might claim that the potential PR damage – news of The Notorious Santa Claus Bust hit local, national, and international news outlets – was much more than $50, but all of that might have been avoided with a little adult foresight and discretion.

The perpetrators – Santa and his Elf – were later released, and it remains to be seen if the DPS (or Preservation Board) will attempt to press charges against these or earlier "Chalkupiers." Occupy Austin said, "OA believes that the use of washable sidewalk chalk is constitutionally protected free speech, and several previous court rulings agree. The organization demands that the Texas State Preservation Board respect the free speech rights of chalkers, and that State Troopers halt arrests immediately."

A video of the incident is posted at Occupy Austin's web site. A gallery of photos by Chronicle photographer John Anderson is posted here.