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ScottDLS wrote:I have the CHL booklet from 1997 and I don't see any reference to CHL as a defense to 30.05, in that version of the trespass law law. As I recall it was deemed unnecessary as 30.06 was considered to pre-empt the 30.05 law for the purpose of barring concealed carriers. The soonest that I see 30.05 updated was in 2003 booklet. So if the 30.05 law remained the same, then a small decal would still suffice for barring CHL, police, etc. under the trespass law until 2003.

You are correct; I pasted the wrong bill into my sentence. That's what I get for taking shortcuts. We amended TPC §30.05 in 2003 as part of SB501 that stripped governmental entities and agencies of the ability to use TPC §30.06 to render government property off-limits to CHLs.

You are correct about TPC §30.06 superseding §30.05 based upon rules of statutory construction. (The specific controls over the general; "presumptive repeal/amendment" based upon timing, etc.) Prior to the 2003 legislative session, it had been reported that some prosecutors were contending that TPC §30.05 could still be used to prosecute a CHL solely because they entered with a concealed handgun. That meant that the "no guns" decals were allegedly still effective to prevent CHLs from entering with a concealed handgun. Absolutely no one agreed or believed that was true, but it was easy to add it to SB501. The defense found in TPC §30.05(f) was added to make sure that practice came to an end, if it actually was happening.

Chas.

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.

ScottDLS wrote:The law (30.05) provides for the REVOKING of consent to enter when it has already been granted, by being open to the public ("open" sign lit up on the door). It also deals with notification mechanisms for saying the that permission to enter is NOT GRANTED...No Trespassing Sign, Purple Paint Marks, written trespass notice (usually executed in presence of a LEO), oral notice.

While TPC §30.05, 30.06 and 30.07 all provide a mechanism for revoking effective consent after someone has entered the property without passing the appropriate sign, your implication that §30.05 is only a method of revocation and not prevention is wrong. If one posts a sign, §30.05 is a preventative measure. If no sign is posted and a person is told they cannot be on the property because ___________ (or if they are not given a reason), then §30.05 is a method of revocation of effective consent.

ScottDLS wrote: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

I have neither the time nor the desire to conduct comprehensive research to support a Forum argument. However, a cursory search revealed cases that show a specific person or people in general can be excluded from property for any reason whatsoever. (See Wilson v. State, 09-15-00412-C, 9th Cir. 10/19/2016). Obviously, one cannot prohibit entry onto certain property by persons because they are in a protected class. Wilson dealt with a citizen being barred from entering a city community center because the manager didn't like how he acted. Mr. Wilson was given a trespass warning, but the case is on point for two reasons. First, contrary to your argument, a person can be prohibited from entering for any reason. Secondly, this was true even though the community center is public property.

ScottDLS wrote:Do these examples translate to?

PURSUANT TO TXPC 30.05 ENTRY UPON THESE PREMISES IS PROHIBITED TO ANY PERSON WEARING THONG UNDERWEAR, CARRYING A POCKET KNIFE (OR NAIL CLIPPERS OR A BUTTER KNIFE), OR ANYONE WHO HAS RECEIVED A DEGREE FROM OR IS CURRENTLY ATTENDING TEXAS A&M UNIVERSITY, OR IS CARRYING A CONCEALED LONG GUN.

The answer is yes, if these prohibitions were posted on a sign, or if the person was given oral notice to leave is any of these factors applied. One need not reference any particular Penal Code section as you have done in your example. Of course, you resort to the absurd intentionally, but even then you fail to prevail on this issue.

ScottDLS wrote:If so, then you would be subject to arrest for a class B misdemeanor for walking past such a sign while engaging in the prohibited hidden conduct, regardless of whether the owner noticed and requested you to leave or not.

Yes. This is precisely the law if someone passed a 30.06 sign and enters with a concealed handgun. The Licensee would be guilty of Trespass by a License Holder the moment he/she walked past the sign without any instruction to leave and regardless whether the property owner ever know they were armed. Obviously, not being seen to be armed would mean the LTC would not be arrested or charged, but that has nothing to do with whether or not a crime had been committed. Use a 30.07 sign instead and the Licensee entered openly carrying a handgun. A crime has been committed at that point, even if the LTC is never told to leave and if the property owner never sees the LTC in his or her store.

ScottDLS wrote:If the law was intended and were interpreted this way then it would provide a general criminal enforcement mechanism available IN ADVANCE to property owners for any activity or situation that they deemed objectionable. Just by placing a pictogram. Circle / Beretta means....you have to follow all the rules in the rule book (kept in back office) or you are trespassing.

This makes utterly no sense. There is no "enforcement mechanism available IN ADVANCE" of someone committing a crime!! One cannot be arrested before they cross a no trespassing sign, whether it is a 30.05. 30.06 or 30.07 sign. The enforcement begins only after violation has occurred.

Once again, you resort to absurdity. Notice is the key. The "rule book kept in the back office" does not provide notice to someone who was unaware of its content. It does provide notice to someone like an employee (ex. Employee Handbook) who has read the "rule book" and later violates it by entering the property in violation of any prohibitions contained therein. A great example is §30.06 language in English only in an Employee Handbook.

ScottDLS wrote:If someone is to be prosecuted for a crime, the elements of the crime must be established at trial. Did you receive notice? Did you subsequently enter or remain without consent?

You finally admit that notice is the key. What you want to argue is that the basis upon which entry is prohibited matters, but it does not. In the Wilson case I cited, the city could have posted a sign that said "Cedrick Lamar Wilson do not enter" and Mr. Wilson would have had notice. The Wilson court even noted that Mr. Wilson need not be told why he cannot enter the community center.

ScottDLS wrote:Does NO SHIRT, NO SHOES, NO SERVICE mean no trespassing shirtless? Am I supposed to know that?

No and I dealt with this in my first post. A sign that said "Do not enter without a shirt or shoes" would constitute notice. Do you argue that it does not?

ScottDLS wrote:Am I supposed to know that a line through a revolver sticker means carrying a pocket knife is trespassing? How about a concealed rifle?

That would be a fact question for the jury, but I would expect an appellate court to reverse a conviction for a knife. I would not be so brave as to try bringing a rifle into a building posted as you describe. You might win on that issue also, but again, you are essentially arguing a lack of notice, rather than legal unenforceability. The text of TPC §30.05 is clear, unambiguous and not limited as to the scope of conduct prohibited. Again, federal law does limit application based upon excluding people because they are in a protected class. Look at the Code section below; it is clear as the proverbial bell. Unlike §30.06 and §30.07, 30.05 is not limited to a specific reason for prohibiting entry.

Chas.

TPC §30.05 wrote:Sec. 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; or

(2) received notice to depart but failed to do so.

Scott Farkus wrote:

RPBrown wrote:IANAL and I didn't sleep at Holiday Inn Express last night, but I will try to answer. The "no red underwear " sign is not written into law and are just a request of the owner and warning you will be asked to leave. Whereas the 30.06/30.07 signs are written into the statute thus giving a person with an LTC proper notice before entering. At least this is my own opinion.

Well then that's what I've never understood - why did we write 30.06 uniquely into law? Why would we care about any "buster" sign if you still have to be asked to leave before it's a criminal violation? If concealed is concealed, nobody will ever know.

I'd trade that in a heartbeat for what we have now.

TPC §30.06 was created in 1997 in response to small, easy-to-miss "no gun" decals. It was the opinion of numerous district attorneys that entering a building that displayed one of those decals would constitute a criminal trespass under TPC §30.05. TPC §30.06 established a clear and unmistakable notice requirement.

Many people refer to "no shirt, no service" signs and correctly state that entering a building without a shirt would not constitute a criminal trespass under TPC §30.05. However, this is a faulty analogy since those signs refer to no service; they do not prohibit entry. If the sign read "do not enter without a shirt or shoes" and someone did enter, then I believe TPC §30.05 would apply. Why? Because §30.05 does not require any specific language as does §30.06. (See below.) Also, some people have argued that "no trespassing" signs must be an all or nothing situation. That is, you must exclude all people to be enforceable. Not so.

All this said, I haven't looked at §30.05 case law in 20 years and I may have forgotten something or new case law may have been created since 1996.

Chas.

TPC §30.05 wrote:Sec. 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; or
    
    (2) received notice to depart but failed to do so.
    
    (b) For purposes of this section:
    
    (1) "Entry" means the intrusion of the entire body.
    
    (2) "Notice" means:
    
    • (A) oral or written communication by the owner or someone with apparent authority to act for the owner;
      
      (B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
      
      (C) 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;
      
      (D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
    • • (i) vertical lines of not less than eight inches in length and not less than one inch in width;
        
        (ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
        
        (iii) placed at locations that are readily visible to any person approaching the property and no more than:
    • • • (a) 100 feet apart on forest land; or
          
          (b) 1,000 feet apart on land other than forest land; or
    (E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.