TexasCHLforum.com

ScottDLS wrote:

One reason might be because you don't cite any evidence or counterargument, yet just insist that your position must "be".

Ok, Scott, I'll discuss this, more. I'm not even sure what you are arguing about. So, let's take them one at a time. I have extensively given my argument. You do not seem to agree. I know you must have several points to make but let's take them one at a time.

Do three things for me....1st state what your contention is as to what the purpose of the 30.05 statute is today, what you say it is used for, and what it is not used for...then,

secondly...pick one of your points and make it and I will retort to that point. This way we can discuss this without getting different subjects confused.

thirdly...let's try to add edification to the original question posed by the OP. The only reason I think any further discussion would be useful is that debate is always enlightening and educational as long as we stay professional, so please, be my guest.

........

tex

I, and I guess a few others, don't understand why you dont understand. This may be a 'can't see the forest for the trees' situation for you.

Anyway, God love ya.

tex

mojo84 wrote:The slap-down of the absurd claims in this thread reminded me of another thread. http://www.texaschlforum.com/viewtopic.php?f=7&t=86171

Yes. Since it is a requirement for me to "win" the Internet, let's review the absurd claims and epic smack downs thereof:

Absurd Claim 1:
ScottDLS---> Finds it hard to believe that the Legislature intended 30.05 to be a general criminal enforcement mechanism against proscribed conduct, however trivial or unnoticeable, on any private property, by posting a sign or policies. Especially, since it doesn't seem to have been interpreted that way in the past. Example given of the trouble getting vagrants ejected from local convenience store, despite no loitering signs.

It doesn't matter what the Legislature INTENDED 30.05 to be. 30.05 is what it is...now. It is not a criminal enforcement mechanism (at least the way I think you mean that term). It is a owner's notification mechanism describing how he may notify persons of his withholding of entry consent....for...wait for it....here it comes......ANY REASON WHATSOEVER...TRIVIAL OR SIGNIFICANT, THAT PLEASES THE OWNER. As stated earlier, ANY REASON WHATSOEVER, does not equate to whether or not the reason is lawful. 30.05 is simply the means used to notify of the restriction. Whether or not specific conduct is at issue in the reason for the restriction is a different but related point.

If I post a sign stating NO SMOKING then I, the owner, am laying down a rule of conduct that is the condition for staying on my property. If you come onto my property and smoke in violation of the condition then I will then require you to leave. It is that oral demand to leave (which is prompted by your refusal to comply with my rules) that begins the trespass process. At the point of the oral demand, then you must leave or be in violation of trespass. It was not your smoking that caused your to trespass, indeed you were not trespassing. It is my demand that you now leave that sets the stage for the trespass if you do not now leave. This was a two stage event, violation of my conditions of entry and remaining, followed by my demand that you leave (and it really doesn't matter why I ask you to leave...I may not like your earrings...) and your requirement to do so under threat of 30.05 trespass.

This is different from me posting a sign that says ANYONE WHO IS A SMOKER MAY NOT ENTER. This is a sign restricting access to a group of people...and the reason for it....that you are a smoker....is immaterial. All smokers have been 30.05 notified and thus sets the stage for tresspass if the prohibition is violated.

WHETHER OR NOT IT IS LAWFUL TO RESTRICT SMOKERS IS IMMATERIAL TO 30.05. 30.05 doesn't care! 30.05 doesn't ask if it's fair, or if you are really a nice person, or even if it's lawful. 30.05 says "that's not my job to challenge the owner's reasoning...take that up with the court by filing a discrimination suit....But until you do, I am going to notify all persons that smokers are not allowed."

This is where I think the confusion is with prohibition of conduct and prohibition of persons is. 30.05 discusses withholding entry TO PERSONS based on withheld consent, period. In fact, it even provided exceptions BASED ON CONDUCT! Police officers in the official conduct of their duty (conduct) are exempted. This implies that the reverse of that conduct (that they are not in the official conduct of their duties) puts even them under 30.05's authority.

Epic Smackdown:

State vs. Wilson - Wilson was warned not to come into the public owned rec center after engaging in unwanted conduct there, so if he returned he was trespassing. Even if there was not a "NO WILSON" sign posted there subsequently. It therefore follows that a "No Aggies" sign posted on a business would preclude lawful entry of a Texas A&M graduate or student on to an otherwise open business.

DM-363 - 1995 Opinion of AG Morales where he suggests PC 30.05 can be used by property owners to exclude CHL's from private businesses while armed. No particular notice/sign requirements are suggested for invoking conditional entry requirements regarding CHL's or other categories. It therefore follows that a generic "no weapons" sign or pictogram with the internationally understood slash through it and a picture of the object banned or activity prohibited is sufficient notice that you permission to enter is withheld, regardless of the nature, or observability of the conduct.

Multiple examples of convictions and appellate court decisions supporting this interpretation documented for CHLs and other conduct.

Since there was no specific exemption for Peace Officers in 30.05, this law criminalized entry by on or off duty LEO to any such posted location until 2003, when the exemption was added.


Absurd Claim 2:

It is hard to ascertain the "intent" of the owner of a business with regards to allowing concealed and/or open carry (or other prohibited conduct) in the absence of the clearly defined sign requirements in 30.06/7. This is particularly true when the ownership is diffuse (public company, partnership, private limited liability entity with multiple owners).

Epic Smackdown #2:

This is ridiculous. The plain language of 30.05/6/7 makes it clear that any verbal direction from an employee or owner representative is in effect in perpetuity on all property owned wholly or partially by any person or entity....IN PERPETUITY. This regardless of signs, lack of signs, or later direction to the contrary, or change of ownership and/or control of said property. Numerous examples provided of Standard Oil Trust warnings against trespassing families, being currently in effect on Exxon Mobil and other company owned stores. Clear case law reflecting the great Texas' regard for property owners to do whatever, to whomever, they wish, that has been enshrined since independence from Mexico.

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tex

Soccerdad1995 wrote:

So if I understand your post correctly, then you are saying that if I post a sign at my front door that clearly states "no Aggies allowed" and a person who I know to have graduated from Texas A&M walks right past that sign and enters my home, they will be in violation of 30.05 even if I do not say anything else to them, or ask them to leave, since my sign has already given them notice that they were not allowed to enter in the first place.

I'm not trying to challenge you in any way. I just want to make sure that I understand what you are saying.

Well it can be analyzed simply enough. Consider the inverse to your contention. Let's say that it IS a requirement THAT THERE MUST ALSO BE SUBSEQUENT VERBAL NOTICE TO COMPLETE THE NOTIFICATION PROCESS. If that is so then there must be a clear expression of that requirement in the statute.

The sections of 30.05 are...

1. The definition of trespass (which is integrally tied to an owner's notification of his lack of consent that one enters onto his property.
2. What constitutes notification

a. oral or written communication
b. fencing
c. signage
d. agricultural markings, and
e. visible presence of agricultural crops under cultivation

3. Definitions
4. Penalties
5. Defenses to prosecution by certain persons in certain enumerated conduct
6. A statement that 30.05 does not apply to trespassing when that trespassing is solely based on the fact that one carries a handgun or other weapon, and to peace officers in the conduct and discharge of their official duties.

There it is....30.05 in its entirety. Let's find where it says that verbal notification subsequent to entry past a properly posted sign is required.

We read that the offense of trespass is dependent on the withholding of effective consent and NOTIFICATION of that withheld consent.

We read that "notice" means a, b, c, d, e above.

So let's take "a"...Notice means 'oral or written communication by the owner or someone with apparent authority to act for the owner"
Look at "c"...Notice means "a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;"

In the case of signage two things are required...proper placement, and, conspicuousness. Oral notification and signage notification are two independent methods of notification. One does not require the other. If entry is made onto property subsequent to notification, or refusal to leave property occurs after notification then by either of those two methods one is committing the offense of trespass.

There is no requirement in the statute that there must be a subsequent oral warning to a signage warning. One commits the offense at the first violation of a, b, c, d, or e. In 30.05 the levels of penalty are fixed and specified mostly based on location of the offense. In 30.06 and 30.07 there is provision for upgrading the penalty from a Class C to a Class A if, at trial, it can be shown that AFTER THE INITIAL COMMISSION OF THE TRESPASS you were ALSO given an oral warning and refused to leave. This is a difference between .05, .06, and .07.

But in all three the first violation of disregarding a lawful notice generates the offense. No secondary notice is necessary to be in trespass.

So, in short, the requirement that subsequent oral notification is required to consummate the offense of trespass does not exist. And, yes, the minute the Aggie enters upon your property past the properly posted and compliant sign you may call the police and file a complaint, with nothing else said.

This is all notwithstanding rules of politeness and etiquette...But since he's an Aggie, why would you go to the trouble?!

tex

It's easy to give ridiculous examples to prove a point...and "proving" the point is a over generous allowance.

You forget that a large group of educated people whose job it is to create law did so with full authority when they wrote 30.05. The courts have historically acknowledged that the legislators understand the language and know how to say what they mean and mean what they say in wordcrafting law. 30.05 is unambiguous in its purpose and meaning and I suspect that is why it's hard to find case law dealing with problems with the language of the statute itself.

30.05 clearly says what it says and, notwithstanding other applicable laws or previous rulings, can be used AS WRITTEN to notify of an owner's sovereign decision to withhold his consent or effective consent to entry for any reason. ANY REASON. Not that ANY REASON is legally justified but that 30.05 does not deal with what is or isn't justified and is merely the tool used to establish the procedures for notification of withheld consent based on those reasons and criminalizing violations and defining exceptions.

In struggling to come up with an analogy it's like one arguing that you can't possibly drive under the 70 mph speed limit with your Learjet. The sign says 70 mph!!! And the rule does not take into account the fact that you and your Learjet can't or won't comply or whether is fair or not to restrict the Learjet. The sign's purpose is simply to notify of the rule. You and your Learjet can take it to court to decide if it's fair that you should be restricted to 70 mph while driving on the highway at 70 mph in your jet! But until you do you have been notified by someone who has the authority to make such notification and are in criminal violation of the rule if you do not comply.

My point is that it is not in the scope of 30.05 to establish what is a reasonable or lawful withholding of consent to entry. The scope of 30.05 is meticulously precise in that it...

1. Recognizes an owners right to withhold consent or effective consent.

2. Creates a mechanism for the owner to notify persons of that decision to withhold consent or effective consent.

3. Clearly defines what constitutes that "notification".

4. Creates a criminal offense and associated penalties for those persons who disregard the owner's wishes after having been notified, and

5. Provides exceptions to certain persons under specified conduct.

30.05, in and of itself, does not deal with what ought to be or what should be, or what is within the limits of current societal sensitivities, or what seems fair, or what is discriminatory or not. Those doctrine are found in other statutes and violations of those are dealt with accordingly. 30.05 is a prescribed mechanism and that mechanism is precise and easy to understand.

If someone uses it to publish his withholding of consent to entry to some group of people that is UNLAWFULLY discriminatory then the problem is with the violation of those statutes prohibiting such discrimination, not with a statute that is essentially one that specifies the rules for NOTIFICATION concerning withheld consent and associated penalties if violated by intruders.

More importantly, if not 30.05, then what does an owner use to guide his process of notification? If an owner wishes to withhold consent to entry to shirtless persons how does he do it if not according to 30.05? Whether or not he is allowed to prohibit shirtless persons is found elsewhere, not in 30.05. And like any other law one may not agree with one does not violate the law as a solution to remedy the error. That is strictly the purview of the courts.

To look at this in reverse...first search the entire law and determine what are all of the lawful reasons any private owner may use to withhold his consent to entry onto his property...then he will apply the procedures in 30.05 to make notification of his withheld consent, and persons entering onto that property will be held to the provisions of that statute, each one completely free to challenge the reason in court.

But the 30.05 mechanism itself is simple and easy to understand. And, bringing this back to 30.06 and .07...these are simple extensions of 30.05 concerning trespass with LTC carried handguns. The same elements are common to and present in each of the three.


Tex

Both 30.05 and 30.06, as well as now 30.07 have one thing in common...all three very precisely define what constitutes the notification of the trespass that must be satisfied to create the condition of being in trespass. Once that requirement of notification has been satisfied then the resulting condition of trespass (which is dependent upon the fulfillment of notification) exists.

And in none of the three (referring to the use of signage or written documents as the method of notification) does the fulfillment of the requirement of having been notified require an oral or verbal warning or prohibition first, or in addition to, or as part of the signage prohibition.

A sign prohibiting entry based on virtually any reason meets that requirement as per 30.05. Now whether or not that reason is lawful under the many discrimination statutes is a test left to the courts to decide in any discrimination action. For example, I believe, a store could put a sign stating "NO MALES ALLOWED TO ENTER" and that sign would meet the technical requirements of notification of 30.05 as written. Does a male have a discrimination claim? Yes, of course. And the validity of that claim will be found among the various state and federal anti-discrimination statutes, not in 30.05, which defines WHAT trespass is, HOW to notify of prohibitions to entry, penalties and excepted persons.

tex