Question about "trespassing" and 30.06

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mojo84
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Re: Question about "trespassing" and 30.06

#31

Post by mojo84 »

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 :lol:
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Re: Question about "trespassing" and 30.06

#32

Post by Charles L. Cotton »

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. :oops: 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.

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Re: Question about "trespassing" and 30.06

#33

Post by ScottDLS »

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 :lol:
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.

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. :biggrinjester:
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"
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Re: Question about "trespassing" and 30.06

#34

Post by mojo84 »

I'm sure you have a much better grasp of what the legislature intended and what the law says than Charles. :roll:
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Re: Question about "trespassing" and 30.06

#35

Post by thetexan »

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 :lol:
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. :biggrinjester:

***************************

tex
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ScottDLS
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Re: Question about "trespassing" and 30.06

#36

Post by ScottDLS »

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.

Then it should be very straightforward for you to find cases in the public record wherein someone has been convicted for trespass when passing a "sign" setting specific conditions upon entry/remaining on the property---without having been subsequently notified orally or in writing.

30.05 DOES NOT DISCUSS withholding entry to persons based on withheld consent that is subject to arbitrary conditions, particularly, when that consent has already been granted by the nature of the property (store open to the public). Or maybe it does and I just missed it in the statute. Since that is nowhere near clear in the plain language of the law, I surmised that there must be AG opinions or case law dealing with such situations. The "intent" of the legislature figured prominently in the DM-363 and was the basis of the common cited opinion that a sign prohibiting concealed carry invoke criminal trespass FOR CONCEALED HANDGUN LICENSEE's using 30.05. I'm not aware of any other AG opinions or cases relating to other conditions of entry prohibited by "sign". For LTC's the issue has been moot since 1997, when PC 30.06 was added.

So when people continue to state 30.05 establishes a blanket criminalization of any activity on private property, however trivial or unnoticeable, by virtue of a sign or single written notice, I ask them to point to the cases that support this or the legislative history of PC 30.05, or AG opinions dealing with it, SINCE IT IS FAR FROM CLEAR IN THE PLAIN LANGUAGE OF THE STATUTE.

I then submit hypothetical examples of conduct that I doubt 30.05 is intended to address, that COULD have written notice given in advance, and ask for the reasoning supporting a criminal prosecution based on case law or judicial decisions.

-Pay the rent late after being warned in the written lease and orally that permission to be on the property is conditional on paying on time...boom class b for you, without the trouble of filing 30 day notice of eviction...

-Wear a thong under your pants after passing a clearly worded "No Thong" sign on a store entrance? Proprietor subsequently sees your whale tail peaking out from under the trousers and has you immediately arrested for a class B.

-Pass a No Aggies sign on the door of your Long Horn buddy's house when he invites you over. But he didn't know you were an Aggie when he invited you to watch the game, yet you disrespected his written warning "no aggies sign" and came in anyway. When wife tells him you're an Aggie, he surreptitiously phones 911 and Sheriff hauls you of for 30.05.

-Clock in late when you signed the employee code of conduct saying that your entry on your employers property was conditional on you arriving on-time and performing your work in the manner directed by your supervisor. Subsequently, time cards are audited and the boss has you arrested for a class B for clocking in late. That's the plain language of the 30.05 statute, right? My supposition that that could not have been the intent or interpretation of the statute, notwithstanding.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"

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Re: Question about "trespassing" and 30.06

#37

Post by thetexan »

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
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ScottDLS
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Re: Question about "trespassing" and 30.06

#38

Post by ScottDLS »

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


Also, this paragraph is completely false.
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.
Note also that this section was only added in 2003, so previous to that...presumably...a cop passing a generic no guns sticker on or off duty was guilty of criminal trespass.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"

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Re: Question about "trespassing" and 30.06

#39

Post by TreyHouston »

doncb wrote:
rtschl wrote:I like the signs and understand that they were added for our benefit. I wish they had to be at every entrance like 30.07.
What I'd like to see is that any business that wants to post a 30.06 sign it should be required to be posted on the front door. Not to the side of the door. Not in an alcove. On the FRONT DOOR. Right out there so you can see it when you drive by. A nice big 2 foot by 3 foot sign. Right there on the front door.
I 100% agree with this!!! On BOTH SIDES on the door. Sometimes people (employees) hold the door open and i miss it, sometimes the sign is "hidden" behind tinted glass, or somewhere really weird. I've even seen the sign on the dominoes by me which was on the far side of the glass away from the door, approximately 20 feet from the door... really?!?!
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Re: Question about "trespassing" and 30.06

#40

Post by thetexan »

ScottDLS wrote:

One reason might be because you don't cite any evidence or counterargument, yet just insist that your position must "be". :biggrinjester:
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
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Scott Farkus
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Re: Question about "trespassing" and 30.06

#41

Post by Scott Farkus »

fwiw, my question posted in the OP has been answered. Technically speaking, any "No Whatever" sign does have the "force of law" and can result in the arrest of an offender for trespassing with no further duty or action required on the property owner's part. Probably will never happen that way in real life, but legally, it could. That's really all I wanted to know.

As I stated earlier, I still have problems with 30.06/30.07 for other reasons (and now that I better understand our trespassing laws, I have problems with them as well), but as long as other signage prohibitions are treated the same, I can at least accept the reasoning for creating 30.06 in the first place.

I'll leave it at that for now and thank everyone again for the discussion.
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