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by thetexan
Sun Oct 01, 2017 7:57 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

Soccerdad1995 wrote:

Tex - Thank you for a very informative post.

I think the confusion arises from things like a "circle / slash" sign. To me, such a sign is the pictorial equivalent to the words "No ___ allowed", or even "No ____". Per your above, then, that would not provide sufficient legal notice to support a criminal trespass charge if someone walked past the picture with whatever offending object or condition it specified. But I believe that prior to the passage of 30.06, there was a Texas AG opinion that such signs did provide sufficient legal notice to support a criminal trespass charge, as it related to the possession of a legally carried handgun. Presumably, that same AG opinion would also apply to any other offensive object in a "circle / slash" sign, be it red hats, LEO's, or whatever.

Are you saying that you believe a "circle / slash" sign does not provide legally sufficient notice that I may not enter if I have whatever is in such a picture? If so, then I am in complete agreement.
There is no question that a "circle / slash" sign DOES NOT meet the requirements of 30.06 and 30.07 because the requirement for sign compliancy are so very clearly given. Even though 30.05 does not specify the language required to notify someone that entry is forbidden it does require...that...the intruder must receive notice THAT entry is forbidden.

If an owner places a sign of sandals with a red line through the sandals, legally, the issue has to be determined as to whether or not notice of forbidden entry by the intruder has been given. The prosecutor will make his case and the defending attorney will make his. The question will be...what does the sign state...and...what legal inference can be derived from a graphic.

To be notice the legal inference would have to be that the sign, in effect, states that anyone wearing sandals are forbidden from entering the property. The defense attorney will argue that the sign simply states that anyone wearing sandals will be asked to remove his sandals since bare feet are not addressed. You can see the ambiguity that arises from a graphic. So, in the above scenario, a person walking past a "no sandals" sign and the owner comes to the table and informs the person that he can not wear sandals in his establishment. The person then obliges and removes his sandals right there on the spot becoming bare footed. The irritated owner then asks the person to leave. It is at that precise moment, and not a second earlier, that the requirements for notification against trespass has occurred.

At that point the person must leave. Not because he was wearing sandals but because the owner told him to leave. Notice the owner did not give a reason...just leave.

It is clear from the language of 30.05, .06. and .07 that any notice of forbidden entry must indicate that entry is forbidden. In other words the notice must in some way indicate that "YOU, may not enter". Not "YOU may not wear sandals" or "YOU may not NOT wear shirts or shoes". Only an indication that YOU, PERSONALLY, do not have my permission to enter meets the requirement as per the statute.

I think we agree.

tex
by thetexan
Sun Sep 24, 2017 1:49 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

There have been several posts since my last. A few of these as well am many of the original 5 pages of posts makes me think that I may not be making my point well or clearly and that the main point about all of this issue is being missed.

A sign, any sign, that says things like "No Weapons allowed", "no shirt, no shoes, no service", "no dogs allowed", "no red hats", etc very clearly express the sign poster's (typically the owner) dislike and absolute unwillingness to suffer those things in his establishment. There is no disagreement there.

The question is this...does the expression of that dislike (as written with the precise language used in the above examples) have any LEGAL prerequisite authority upon which to charge someone with the CRIMINAL act of entering that establishment without the consent of the owner? Has the owner met the requirement, whatever that may be, to convey LEGALLY his prohibition TO ENTRY to that person.

Here is the logic, and as I tried to show with the logic used in the above cases (there are many more), that I think the legislature uses in their laws and that the appellate courts use to analyze this...

All three trespass sections, 30.05, 30.06, and 30.07 state that to notify someone of prohibition to entry the notification must "provides notice", in the case of 30.05, "... that entry is forbidden. ...", in the case of 30.06 "...that entry on the property by a license holder with a concealed handgun [is] forbidden. ...", and in the case of 30.07 "...that entry on the property by a license holder openly carrying a handgun [is] forbidden. ...". In all three cases the notice must include THAT ENTRY IS FORBIDDEN. Remember, this is all a statutory foundation for a criminal charge of trespass.

In 30.05, the signs must "...[indicate] that entry is forbidden. ...". In the case of 30.06 and 30.07 written documents and signs the language is specified "...may not enter this property..."

It is clear that in order to charge someone with the crime of trespass they must be notified, in LEGALLY CLEAR and precise terms, and getting the point across that...

you personally can not come in
you can't enter my establishment
in your present condition whatever that may be (other than statutorily discriminatory) you can not enter

Note that in all cases of trespass, except for handguns in .06 and .07, it is not necessary to give a reason for the prohibition. And in .06 and .07 that reason only need be given in written documents and signage but there is no stipulation with the oral notification. I don't know if it is implied that it is required in the case of oral but it is not stipulated.

So, from my research, it appears clear that to establish the element of notification required in all three sections as it relates to written documentation or signage there must be clear language prohibiting entry. This written notice must be specific, unequivocal, and speak directly to the prohibition to entry....if you are going to be able to charge someone with a criminal offense.

The foundation for the charge of the criminal offense can not be based on inference or suggestion or poor wording, especially where precise wording is specified.

A sign that says "no sandals" tells me exactly what it says. I can not wear sandals in this establishment. OK, I know now that the owner does not want sandals in his place of business. Morally, I may want to respect his wishes and not come in. But if not, I have not been notified that I may not enter. There are many, too many to think of, possibilities for the interpretation of this. Here are a few...

I might enter with sandals but I won't be served
I might enter with sandals and be asked (notified) to leave
I might enter with sandals and given a pair of dress shoes much like many fine dining establishments provide dinner jackets for those without

and I could think of a hundred more. So could any of you.

The only language that can not be misinterpreted is language that clearly states an unequivocal message...."you may not enter". That sort of unequivocal language can not be misinterpreted, misconstrued, or defended against (except in the case of legal discrimination).

So the point is that while we may understand that an owner may not like red hats he must abide by the law if he wants to be able to prefer criminal charges of trespass, and notify according to statute.

As to whether the appellate courts will take a stand of precision as to notification...their history is that they do as evidenced in a thousand non gun-related cases where precision of language is specified such as business, banking, labor, etc. To think that they would take a more sloppy approach to analysis when it comes to trespass is not a good bet. And, I have given three cases where, if you study the entire case, their analysis indicates this.

I agree that if I see a sign that says "no weapons" that I know the owner does not like guns. Too bad he didn't honor and respect my rights as a patron by notifying me BY LAW.

I agree that if I see a sign that says "no red hats" that I know the owner does not like red hats. Too bad he won't be able to charge me with trespass because he didn't notify me that entry was forbidden.

But in all cases other than statutory discrimination, IF THE OWNER DOES IT ACCORDING TO STATUTE, (and remember, orally, there is no stipulation as to how it is said) he can prohibit entry FOR ANY REASON OR NO REASON. And, except in .06 and .07, he doesn't have to give you a reason why.

tex
by thetexan
Fri Sep 15, 2017 6:12 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

Nor have I.

I thinks it's because of a complete lack of knowledge on the part of owners who want to actually prohibit entry but who don't understand 30.05 well enough to do it In a way that will stand the test of the legal system.

Tex
by thetexan
Fri Sep 15, 2017 5:18 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

I'm not going to argue with you Scott. You seem to just be wanting to pick a fight.

The sign must indicate entry is forbidden. That's all. If you put up a sign that CLEARLY indicates that entry is forbidden and the appellate court will buy it then wonderful. If you put up a sign that DOES NOT clearly indicate entry is forbidden and you can win on appeal then wonderful. I can read english just like you can.

If the sign does not CLEARLY indicate entry is forbidden and you get arrested and convicted by a good prosecutor and impressionable jury and you take it to appeal then you will have to make a case for the lack of clarity in the sign's indication that entry was forbidden.

As for me, the private business owner, you can be certain that my sign will clearly and unambiguously indicate my lack of consent.

If you think "no red shirts" indicates entry is forbidden then God bless you. To me it indicates that if you come in with a red shirt you are violating the red shirt policy. As far as I know there is no criminal penalty for that.

Maybe I'm the one making too big of a deal about wording.

tex
by thetexan
Fri Sep 15, 2017 3:32 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

ScottDLS wrote:
thetexan wrote:Another issue mentioned above is the enforceability of a sign.

There is a difference between...

"No Shirt, No Shoes, No Service", and
"No one without a shirt or shoes may enter"

The first sign only states that one can not expect to be served, while the second unambiguously conditionally restricts entry.

I believe the first will be found to not convey lack of consent while the second will.

In short, if a sign is legally compliant, then it can be lawfully enforced by definition.

tex
What is required for a sign to be valid notice under 30.05? Is it sufficient for the sign to contain a pictogram of a prohibited item or items with a circle around them and a slash through them? Is a written declaration "NO RED SHIRTS" enough? How about a written list of house rules "no chewing tobacco, no swearing, no hats indoors". Are these sufficient to meet the requirements of notice for 30.05?
(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.
None of the cases that you cited in refuting Vol Texan related to entering a publicly open business (by definition implied consent for customers to enter). For the State to prevail in prosecuting someone CRIMINALLY, one would expect that they would be required to prove that the person had notice THAT ENTRY WAS FORBIDDEN. Maaayyybe....a great big sign saying UNDER TXPC 30.05, ENTRY IS PROHIBITED TO PERSONS WEARING RED SHIRTS'. But what about the other examples? To me it is not at all clear that entry is forbidden.
Here is the simple answer to your question.

...a sign indicating that entry is forbidden.

Any sign you can design showing whatever you want that clearly makes that indication IN THE JUDGEMENT AND SATISFACTION OF THE APPELLATE COURT is sufficient and meets the definition.

They will be the ultimate test. It's all in the wording or imagery.

For example...a sign saying no shirt, no shoes, no service doesn't deal with the issue of consent to ENTRY any more than a sign advertising 75 cent tacos. Ok, so when I enter I will get no service. What stops me from entering? The sign does not indicate prohibition to entry.

We can argue a thousand examples. But the rule is clear. The sign must INDICATE that entry is forbidden. No other requirement exists. So....as I said....the appellate court will decide if some cute play on words by some guy who can't read simple English in the statute will prevail. Either as the plaintiff owner or defendant.

As you well know language and wording is everything.

Tex
by thetexan
Fri Sep 15, 2017 2:26 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

Another issue mentioned above is the enforceability of a sign.

There is a difference between...

"No Shirt, No Shoes, No Service", and
"No one without a shirt or shoes may enter"

The first sign only states that one can not expect to be served, while the second unambiguously conditionally restricts entry.

I believe the first will be found to not convey lack of consent while the second will.

In short, if a sign is legally compliant, then it can be lawfully enforced by definition.

tex
by thetexan
Fri Sep 15, 2017 1:42 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11183

Re: another 30.06 question

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 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. ...

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.]

tex

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