Vol Texan wrote: twomillenium wrote:
rp_photo wrote:I don't see 30.06 as a sacred property right but rather a public accommodation issue.
Anyone who opens their property to the public must agree to not discriminate against various classes, which in my opinion should include legal carriers.
Along with that, property owners who don't post should be shielded from liability over actions of a legal carrier on their property, but being exposed to liability for the death and injury of a disarmed legal carrier if they choose to post. Note that this would provide a crucial upside to not posting which is missing now.
You have a choice to carry, the supposed various legal classes did not. I support individual property owners rights over the rights of the public, don't do business with them if you don't like the way they run their business. If you come in and tell me that I have to let legal carriers in my place of business, I would have to tell you I do not have to do so
, I allow them to do so. Then I would tell you to leave because of I have enough stupidity for the whole place and you need to take yours elsewhere.
On this forum, this topic is rehashed often, and it usually ends up at a point where it's perceived as a binary issue: "Which is more important, private property rights or our rights to carry?" I suggest that reducing it to A vs B is a good way to kill the discussion, rather than enable it.
But what has been highlighted here on this thread is there is a middle ground that allows both to be respected. Private property is (and should be) sacrosanct, but it already has some limitations in place. You can post signs that say, "No red shoes", "No shirt no service", "No earrings", etc., but those signs do NOT have the force of law unless you then offer an oral notification as well.
Those of us that advocate the middle ground do not ask for private property rights to be subordinate to carry rights. We simply ask that the 3006 sign have the same legally binding status as do the other signs listed in the previous paragraph. We believe that one sign, for that one choice, for one class of people who voluntarily do one thing, having legal force of law as something we'd like to see evened out with all other signs.
But we're not suggesting that we should come in and tell you that you have to let legal carriers in your place of business. That's extending our position further than what we're stating.
This if factually untrue as a matter of law. The reason that this issue continues to be rehashed is due, in my opinion, to a predisposition to the misreading of the clearly written 30.05 statute and the resulting misteaching of the rule.
First, the statute.
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
(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. ...
All states come under the federal civil rights discrimination statutes and no person may legally withhold consent for entry or service using one of the precluded classes. In Texas and may other states the owner of a property, including privately owned, public accommodation businesses, may withhold consent to entry onto his property or business FOR ANY REASON OR NO REASON
if he does not do so in violation of the discrimination statutes. Once the owner decides he wishes to withhold his consent to entry for anyone he wants to prevent from entering his domain all that is left for him to do is to determine which of the methods of notice he chooses to employ to give that notice. He may choose from the oral or written method or signage method. Each of these methods are legally and independently sufficient for notice against trespass.
There is no requirement that for the offense to actuallize that there must ALSO be oral notification. If one passes a sign that complies with the above (reasonably likely to come to the attention, etc) then he is AT THAT POINT
committing criminal trespass. This not only applies to 30.05 but to its offspring 30.06 and 30.07.
I, as a private owner of a restaurant, under the doctrine of owner sovereignty, may restrict anyone I please even if it is because I don't like persons with wire-rimmed glasses...for any reason or no reason. Unless, I violate a discrimination statute, it is my right. All that is left for me to do is to give proper notice under 30.05.
Second, to the case law, in part...
O'Brien v. State (Tex. App., 2017)
"...Likewise the evidence was sufficient to establish that Appellant entered the property with notice that the entry was forbidden. First, the property was protected by fencing and a locked front gate, giving notice that entry was forbidden, and the jury could have reasonably concluded that Appellant and his companions entered the property through the front-gate and not from the southeast as claimed, and that after unsuccessfully attempting to shoot the lock off the front gate, they moved the rock barricades to gain entry. Second, the evidence also demonstrated that the property was protected by numerous "no trespassing" signs that were reasonably likely to come to the attention of intruders, some of which were marked with the "Pickett" name.
Under the criminal trespass statute, either was sufficient to demonstrate that entry was forbidden.
See Jackson v. State, 3 S.W.3d 58, 62 (Tex.App. - Dallas 1999, no pet.) (fencing around house was sufficient to provide notice that entry was forbidden); Matter of D.L.K., 690 S.W.2d 654, 655..."
Hongoli Pan v. State (Tex. App., 2014)
"...We reject defendant's contention that the offense can only be committed by remaining on the property after a request to leave
. The express terms of the statute make it an offense to enter property of another without effective after receiving notice that entry is forbidden
. TEX. PENAL CODE ANN. § 30.05(a). Furthermore, the evidence here indicates defendant returned and remained in the library after he was notified not to return to the library during specific times on certain days in the future. By returning to the library during the specified time period, defendant entered and remained on the property without effective consent and with notice that his entry was forbidden. ..."
State v. Beckman (Tex. App., 2013)
"...The record contains no evidence that Dimery or someone with apparent authority to act on her behalf communicated to Appellee that entry was forbidden. See TEX. PENAL CODE ANN. § 30.05(b)(2)(A); Salazar, 284 S.W.3d at 876. The record is also devoid of evidence that Dimery's property contained a fence or other enclosure. See TEX. PENAL CODE ANN. § 30.05(b)(2)(B); Salazar, 284 S.W.3d at 876. Although the record indicates that at the time of Appellee's arrest there were two "No Trespassing" signs on Dimery's property, there is no evidence that the signs were posted in a manner "reasonably likely to come to the attention of intruders." See TEX. PENAL CODE ANN. § 30.05(b)(2)(C); Salazar, 284 S.W.3d at 876. In fact, Investigator Massingill testified that he was not aware that the "No Trespassing" signs existed until just days before the hearing. Therefore, we conclude the record supports an implied finding that Appellee lacked the requisite notice for the offense of criminal trespass, and thus was not a criminal trespasser. ..."
[The inference here is that had there been evidence of compliant signs giving notice that that would be sufficient in and of itself to establish criminal trespass and that the trial court would not have been correct in granting motion to suppressing the signage evidence.]