HB 121

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nightmare69
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HB 121

#1

Post by nightmare69 »

Took my legal update from TCOLE and it spoke briefly about HB 121. What I gathered is the 06/07 signs are moot until you receive verbal warning to leave. Can someone elaborate on this? Thanks.
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Re: HB 121

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Post by Papa_Tiger »

nightmare69 wrote: Tue Apr 06, 2021 7:09 am Took my legal update from TCOLE and it spoke briefly about HB 121. What I gathered is the 06/07 signs are moot until you receive verbal warning to leave. Can someone elaborate on this? Thanks.
This is probably due to the way they are interpreting the interaction between 30.06 (a)(2),(b), (d), and (g):
TPC30.06 wrote:(a)(2) received notice that entry on the property by a license holder with a concealed handgun was forbidden.
TPC30.06 wrote:(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
TPC 30.06 wrote:(d) An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) and subsequently failed to depart.
TPC 30.06 wrote:(g) It is a defense to prosecution under this section that the license holder was personally given notice by oral communication described by Subsection (b) and promptly departed from the property.
The same interpretation would apply to the interaction between 30.07 (a)(2), (d), and (h).

You have provided effective notice if you can prove that the sign was posted per the law, however if a person ignores the sign, there has to be oral communication for them to leave, but if they leave they have a defense to prosecution. If they don't promptly leave, they can be punished with a Class A misdemeanor.

Example: A business owner with 30.07 signs properly posted visibly at every entrance notices someone enter the business with an openly carried handgun. The business owner doesn't want to risk a confrontation with the armed individual, so they call law enforcement to enforce the law. The police show up and provide oral communication to the individual who then promptly departs. The sign has had no effect other than providing the mechanism for law enforcement to get involved since the individual is now off the property and has a defense to prosecution.

ETA: TPC 30.06 (a)(2) and (b) quotations for context

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Re: HB 121

#3

Post by crazy2medic »

What is interesting is I have been in posted businesses that due to their poor choice of dark lettering on a dark tinted window I didn't notice their sign until I was walking out!
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Re: HB 121

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Post by nightmare69 »

Papa_Tiger wrote: Tue Apr 06, 2021 8:05 am
nightmare69 wrote: Tue Apr 06, 2021 7:09 am Took my legal update from TCOLE and it spoke briefly about HB 121. What I gathered is the 06/07 signs are moot until you receive verbal warning to leave. Can someone elaborate on this? Thanks.
This is probably due to the way they are interpreting the interaction between 30.06 (a)(2),(b), (d), and (g):
TPC30.06 wrote:(a)(2) received notice that entry on the property by a license holder with a concealed handgun was forbidden.
TPC30.06 wrote:(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
TPC 30.06 wrote:(d) An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) and subsequently failed to depart.
TPC 30.06 wrote:(g) It is a defense to prosecution under this section that the license holder was personally given notice by oral communication described by Subsection (b) and promptly departed from the property.
The same interpretation would apply to the interaction between 30.07 (a)(2), (d), and (h).

You have provided effective notice if you can prove that the sign was posted per the law, however if a person ignores the sign, there has to be oral communication for them to leave, but if they leave they have a defense to prosecution. If they don't promptly leave, they can be punished with a Class A misdemeanor.

Example: A business owner with 30.07 signs properly posted visibly at every entrance notices someone enter the business with an openly carried handgun. The business owner doesn't want to risk a confrontation with the armed individual, so they call law enforcement to enforce the law. The police show up and provide oral communication to the individual who then promptly departs. The sign has had no effect other than providing the mechanism for law enforcement to get involved since the individual is now off the property and has a defense to prosecution.

ETA: TPC 30.06 (a)(2) and (b) quotations for context
So a LTC holder could ignore the sign or play dumb and as long as they leave when asked no law was broken?
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Re: HB 121

#5

Post by oljames3 »

No, LTC holders cannot depend on "playing dumb" after passing a 30.06/30.07 sign that is compliant with the TPC and then leaving when told to. By passing the sign, the LTC holder has broken the law.

This link is to the enrolled version of HB 121 86th legislature. https://capitol.texas.gov/tlodocs/86R/b ... navpanes=0

I fee it is important to understand the meaning of "defense to prosecution." It is not a "get out of jail free" card. I am not a lawyer, but the lawyers with whom I have discussed "defense to prosecution" have told me that you can still be arrested, charged, and tried. Your attorney will raise the defense to prosecution pre-trial, but your attorney must still convince the court that the defense applies, and prove the defense in court. During the process, the charging authority may decline to charge or prosecute, but this is not a certainty.

Texas Penal Code 2.03 https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm
Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
Texas lawyers discuss the meaning of "defense to prosecution." https://www.avvo.com/legal-answers/what ... 18567.html
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Re: HB 121

#6

Post by srothstein »

nightmare69 wrote: Tue Apr 06, 2021 7:09 am Took my legal update from TCOLE and it spoke briefly about HB 121. What I gathered is the 06/07 signs are moot until you receive verbal warning to leave. Can someone elaborate on this? Thanks.
I believe someone misinterpreted the wording of the law. It is a crime to walk past a properly posted 30.06/07 sign. You can be cited for this with a class C misdemeanor ticket. This is a valid citation IF no other actions take place. For example, if you are carrying with your LTC and ignore the sign and enter a store. A manager sees the pistol when you reach for something. He does not approach you but calls the police saying there is a person in the store with a gun who ignored the signs. When the officer arrives and identifies you, you present your ID and LTC in accordance with the law. The officer asks if you are armed and you say yes. He can then cite you for the violation.

Contrast this with the same situation but the manager tells you to leave after he called the police but before they arrive. You leave the premises and the officer arrives and stops you outside of them. He could still cite you in the same manner, but you now have a defense to prosecution, meaning you should be found not guilty during a trial.

And for a final contrast, you are carrying with your LTC and enter the store. The manager sees you and tells you to leave. You argue about it saying there is no sign, or that the sign is not valid, or something. The police arrive and you are still inside the store. They can arrest you for a class A misdemeanor.

This is my understanding from reading the law and the TCOLE class on-line.
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Re: HB 121

#7

Post by nightmare69 »

srothstein wrote: Tue Apr 06, 2021 2:42 pm
nightmare69 wrote: Tue Apr 06, 2021 7:09 am Took my legal update from TCOLE and it spoke briefly about HB 121. What I gathered is the 06/07 signs are moot until you receive verbal warning to leave. Can someone elaborate on this? Thanks.
I believe someone misinterpreted the wording of the law. It is a crime to walk past a properly posted 30.06/07 sign. You can be cited for this with a class C misdemeanor ticket. This is a valid citation IF no other actions take place. For example, if you are carrying with your LTC and ignore the sign and enter a store. A manager sees the pistol when you reach for something. He does not approach you but calls the police saying there is a person in the store with a gun who ignored the signs. When the officer arrives and identifies you, you present your ID and LTC in accordance with the law. The officer asks if you are armed and you say yes. He can then cite you for the violation.

Contrast this with the same situation but the manager tells you to leave after he called the police but before they arrive. You leave the premises and the officer arrives and stops you outside of them. He could still cite you in the same manner, but you now have a defense to prosecution, meaning you should be found not guilty during a trial.

And for a final contrast, you are carrying with your LTC and enter the store. The manager sees you and tells you to leave. You argue about it saying there is no sign, or that the sign is not valid, or something. The police arrive and you are still inside the store. They can arrest you for a class A misdemeanor.

This is my understanding from reading the law and the TCOLE class on-line.
That makes more sense. The legal update just briefly coved HB 121.

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Re: HB 121

#8

Post by oohrah »

A bit of digression - is this a bill currently up for consideration in the 2021 lege? My googling shows similar bills as far back as 2007. So, if it is now law, why isn't it being referred to by its PC instead? And I'm curious - if it is not yet a law, why is it being discussed in LEO training (since it may never pass). Just curious.
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Re: HB 121

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Post by Papa_Tiger »

oohrah wrote: Wed Apr 07, 2021 8:57 am A bit of digression - is this a bill currently up for consideration in the 2021 lege? My googling shows similar bills as far back as 2007. So, if it is now law, why isn't it being referred to by its PC instead? And I'm curious - if it is not yet a law, why is it being discussed in LEO training (since it may never pass). Just curious.
This is referring to 86(R) HB 121 which passed in the 2018/2019 legislative session and went into effect on September 1, 2019.
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Re: HB 121

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Post by jmorris »

srothstein wrote: Tue Apr 06, 2021 2:42 pm
nightmare69 wrote: Tue Apr 06, 2021 7:09 am .....
I believe someone misinterpreted the wording of the law. It is a crime to walk past a properly posted 30.06/07 sign. You can be cited for this with a class C misdemeanor ticket. This is a valid citation IF no other actions take place. For example, if you are carrying with your LTC and ignore the sign and enter a store. A manager sees the pistol when you reach for something. He does not approach you but calls the police saying there is a person in the store with a gun who ignored the signs. When the officer arrives and identifies you, you present your ID and LTC in accordance with the law. The officer asks if you are armed and you say yes. He can then cite you for the violation.
......

But as I understand HB121 then the police must orally warn you and give you a chance to leave before issuing you the ticket. This makes the class C moot because if you leave there is no ticket and if you don't leave it is now a Class A.

The act doesn't say who has to give oral notice, just that you must be given it.
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Re: HB 121

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Post by oljames3 »

jmorris wrote: Wed Apr 07, 2021 1:50 pm
srothstein wrote: Tue Apr 06, 2021 2:42 pm
nightmare69 wrote: Tue Apr 06, 2021 7:09 am .....
I believe someone misinterpreted the wording of the law. It is a crime to walk past a properly posted 30.06/07 sign. You can be cited for this with a class C misdemeanor ticket. This is a valid citation IF no other actions take place. For example, if you are carrying with your LTC and ignore the sign and enter a store. A manager sees the pistol when you reach for something. He does not approach you but calls the police saying there is a person in the store with a gun who ignored the signs. When the officer arrives and identifies you, you present your ID and LTC in accordance with the law. The officer asks if you are armed and you say yes. He can then cite you for the violation.
......

But as I understand HB121 then the police must orally warn you and give you a chance to leave before issuing you the ticket. This makes the class C moot because if you leave there is no ticket and if you don't leave it is now a Class A.

The act doesn't say who has to give oral notice, just that you must be given it.
Even so, the TPC says it is a "defense to prosecution" which does not apply to the arrest, but only to the defense. Even if you are notified and leave, you can still be arrested and your attorney can argue "defense to prosecution."

Texas Penal Code 2.03 https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm
Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
Texas lawyers discuss the meaning of "defense to prosecution." https://www.avvo.com/legal-answers/what ... 18567.html
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Re: HB 121

#12

Post by srothstein »

jmorris wrote: Wed Apr 07, 2021 1:50 pm
srothstein wrote: Tue Apr 06, 2021 2:42 pm I believe someone misinterpreted the wording of the law. It is a crime to walk past a properly posted 30.06/07 sign. You can be cited for this with a class C misdemeanor ticket. This is a valid citation IF no other actions take place. For example, if you are carrying with your LTC and ignore the sign and enter a store. A manager sees the pistol when you reach for something. He does not approach you but calls the police saying there is a person in the store with a gun who ignored the signs. When the officer arrives and identifies you, you present your ID and LTC in accordance with the law. The officer asks if you are armed and you say yes. He can then cite you for the violation.
......

But as I understand HB121 then the police must orally warn you and give you a chance to leave before issuing you the ticket. This makes the class C moot because if you leave there is no ticket and if you don't leave it is now a Class A.

The act doesn't say who has to give oral notice, just that you must be given it.
The part I just highlighted in bold is the part that makes your understanding incorrect, as I understand it. The law does not say you MUST be given oral notice, just that you can be given oral notice and it is a defense if you leave when they do that. I think this was done both to lessen the number of cases, but also to allow for the vagueness of the law requiring the sign to be posted in A conspicuous spot instead of by all entrances.

A close look at 30.06 shows that section (a) lays out the basic elements of the offense. It says you must be carrying a weapon under the authority of your LTC, you must be on property owned by someone else, you must not have effective consent to be on the property, and you must have received notice that the entry on the property was forbidden. Section (b) says you received notice that entry was forbidden if someone acting with the apparent authority of the owner gives you oral OR written notice. Section (c) defines, among other things, written notice as the sign.

So, these three subsections add up to the offense was committed when you entered the property with a firearm after seeing a properly posted sign. The law then says in section (d) that this is a class C misdemeanor unless other things occur. It also says in section (g) that you have a defense to prosecution if someone gives you oral notice and you leave.

Note that there is no requirement anywhere for you to be given oral notice, even by the police. One of the key points to this is that the person giving notice has to have the apparent authority of the owner. If the owner saw the pistol and called the police and insists you are to be arrested, then the officer does NOT have the apparent authority of the owner to give you notice and let you leave.

Now, in real life this may have the effect you think. Most cops are inherently lazy and most support people carrying guns. So they will generally tell you to leave and not come back with a gun and hope you do. Most of us will, of course, take them up on that because we do not want to go to jail. But, there are some anti-gun people out there that will insist the officer arrest (well, ticket) you instead of letting you go because you dared to carry a pistol in their property. And, as we have seen recently when dealing with masks, there are the idiots who will insist that they can not be told to leave a place that they are a customer of and will force the police to arrest them. I certainly hope no gun owners are that stupid, but I am pretty sure there are a few.
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Re: HB 121

#13

Post by ScottDLS »

oljames3 wrote: Wed Apr 07, 2021 4:40 pm ...
Even so, the TPC says it is a "defense to prosecution" which does not apply to the arrest, but only to the defense. Even if you are notified and leave, you can still be arrested and your attorney can argue "defense to prosecution."

Texas Penal Code 2.03 https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm
Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
Texas lawyers discuss the meaning of "defense to prosecution." https://www.avvo.com/legal-answers/what ... 18567.html
...
My understanding is that it is quite uncommon to be arrested for a class C misdemeanor where the penalty cannot include jail time anyway. It seems that the officer would cite you for the violation of 30.06, then you could provide your defense (to prosecution), if any, at your trial in JP or municipal court if you felt the ticket was unjust.

While we're on the concept of a defense to prosecution, it should be noted that the 46.15 inapplicability to 46.02 has also been ruled to be a 'defense to prosecution' under 46.02, not 'an exception to the application' of 46.02.

(Apparently this ruling is due to the fact that 46.15 does not say specifically "it is an exception to the application of....", so it was ruled to be a defense, not an exception. Prior to 1997, CHL and even being a peace officer was specifically only a 'defense', I have my old CHL-16 from 1995 to show that).

And even an 'exception' isn't a prohibition to arrest, it simply means "The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense". So at arraignment (rather than trial) the prosecutor must negate the exception, or the charges should be dismissed. A defense to prosecution must be raised by the defense attorney (presumably at trial) THEN it must be refuted beyond a reasonable doubt by the prosecution, in order for you to be found guilty.

So the same peace officer who is theoretically arresting you for a class C 30.06 violation could himself be subject to arrest for UCW and have to produce the 'defense' that he is a peace office at trial. Same with a person carrying under the authority of their LTC...this also is a 46.15 'defense', so every time you step out in public carrying under LTC, you are violating a law (46.02), to which you have a 'defense'. :rules:
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