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thetexan wrote: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

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.

PC §30.05. CRIMINAL TRESPASS.
(a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:
(1) had notice that the entry was forbidden;
....
(i) This section does not apply if:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and
(2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.

thetexan wrote: 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.

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

Charles L. Cotton wrote:

ScottDLS wrote:Where all this comes from is the debate in 1995 in the Legislature about the Concealed Handgun Law and whether a law was needed to make it illegal to carry on private property if the owner didn't wish it. Initially they didn't think they needed a specific law because a private property owner has always has the right to disallow entry to his property. The question came as to how you would notify someone that they didn't have permission to be on your property with a concealed handgun. In 1995 AG Dan Morales wrote an opinion saying that a "sign" would do...there was no specific format for the sign required, but presumably it had to be noticeable and get the point across. No Shirt, No Shoes, No Service; doesn't really tell me you don't want concealed handguns on in your store...arguably neither does a tiny sticker with a picture of a revolver and a knife, but the AG opinion was otherwise.

You could not be more wrong!! There was never a question as to whether TPC §30.05 could be used to prohibit entry to property by a Licensee carrying a concealed handgun. There was never any question about the sign, decal or any other form of notification that would be required to trigger TPC §30.05.

Please give me the AG Opinion by Morales that you reference. I have two Morales opinions dealing with concealed handguns, neither of which opine as you state. DM363 dealing with authority of a business or city to prohibit the carrying of concealed handguns by CHLs and DM364 dealing with the authority of cities and counties to prohibit handguns by Licensees in public parks are attached to this post. Perhaps I missed one, so please give me the number(s).

DM363's closing summary is set out below. Nothing in it dealt directly with signs, sign requirements, ambiguity, etc. There was no question in anyone's mind that anything that got the "no guns" message across was fine. This included no-gun decals both with and without any text. Here is the summary paragraph of DM363:

DM373 wrote:Senate Bill60 does not preclude private property owners from excluding license holders carrying concealed handguns from their premises under the criminal trespass statute, Penal Code, section 30.05. A license holder who enters or remains on property or in a building of another carrying a concealed handgun without effective consent to carry and who has had notice that concealed handguns are prohibited commits a criminal offense.

Note that the Morales AG Opinion refers to both entry or remaining on property after notice. The only notice one would receive prior to entering would be a physical notice of some type, whether a sign or decal. (Decals were the most common, with some having text referencing TPC §30.05 and some without any text. All but a very small percentage were very small.)

Before the end of the 1995 Legislative Session, we were working on what would become HB2909 in the 1997 Texas Legislative Session. Among other things, HB2909 created TPC §30.06, but it most certainly wasn't because business owners needed a criminal code provision that made it possible to prohibit concealed carry as you imply. TPC §30.06 was created to establish clear and conspicuous notice requirements for written notices, including signs. HB2909 also amended TPC §30.05 to exclude from its provisions any CHL that was prohibited from entering solely because they had a concealed handgun. If your factual statements were accurate, then it would not have been necessary to expressly deal with TPC §30.05.

ScottDLS wrote:The signs that stood out to me back then were the ones that referenced 30.05 and said that licensed concealed handguns weren't allowed and were big enough and prominently posted enough to be noticeable. If I saw one of them, I didn't carry. In 1997 30.06 passed and cleared it up, defining exactly what constituted notice for prohibiting CHL. There was no exception in 30.05 for LEO state or Fed...until 2003, so presumably they couldn't carry past a circle slash Beretta sign or generic no-guns sign, on or off duty, that is if you believe AG Morales position still applied.

I never saw a sign like you describe, but I'm not disputing what you observed. I and most CHLs saw an epidemic of small, clear no-gun decals typically placed on glass doors of mom-and-pop shops. These were very easily missed when walking in. By 1995, the international "slash symbol" was universally understood and accepted to mean "no ____________' whatever was pictured. There was no doubt that a Licensee could be prosecuted and convicted even if they missed this small decal. That was the sole reason TPC §30.06 was created.

Chas.

Scott Farkus wrote:

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.

That's how I understand it. 30.06 would make no sense at all otherwise.

Now, there's also an issue of truly private (i.e. your house) vs. "private but open to the public" property (i.e. a business) but from what I can tell, 30.05 makes no distinctions between the two. That raises other issues and problems, I think, but is a different discussion.

WildBill wrote:[quote]What it doesn't do is automatically criminalize any unwanted conduct in advance.

NO AGGIES
NO THONGS
NO KNIVES
Circle with a line through a Beretta silhouette

Do these examples translate to?

thetexan wrote: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 acknowledge 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

Scott Farkus wrote:If I'm understanding correctly, then yes, those people in your example are technically in violation of 30.05 and could be arrested for trespassing. Obviously it will never happen for all sorts of reasons, but as far as I can tell, that is exactly where the logic leads. And as I said earlier, that just seems silly.

That's why I asked for clarification on this. I think if people (/cough/ legislators /cough/) realized what the law really said, and how ridiculous the examples can get, they might be more willing to take a look at it and rethink some things.

Scott Farkus wrote:Well, the whole protected classes thing both muddies the water and, in my opinion at least, gives even less credence to why we allow businesses to exclude licensed concealed carriers, but that's a different discussion that we've already had many times.

So protected classes aside, if I'm understanding correctly, 30.05, as we believe it would be currently interpreted based on the Dan Morales opinion, would in fact treat a "No Tattoos" sign as having the force of law if a tattooed person entered such a posted premise. Now, I know it would never happen (certainly not in Austin unless you wanted to run off 75% of your potential customers), but theoretically, a tattooed individual would be committing a Class A misdemeanor if he or she entered an establishment with a "No Tattoos" sign on the door.

If that's truly what the law says, I have to say that's pretty silly. It doesn't seem at all unreasonable to me to require a business owner to at least ask you to leave before escalating to a criminal violation. I think in real life that's how it's handled 99% of the time, sign or no sign. I don't see property owners calling the police for smoking in a no smoking zone - I see them asking the smoker to put the cigarrette away (sometimes, sometimes they don't even care which is also the property owners perogative unless no smoking is required by law) and then asking the smoker to leave if they don't. Maybe after all that, yeah, the police are called but by that time you've likely got a different situation on your hands.