Search found 11 matches

by ScottDLS
Fri Sep 15, 2017 5:42 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

thetexan wrote: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
I essentially concur. My point was that I haven't yet seen an unambiguous sign PROHIBITING ENTRY relating to dress or 'conduct' in 26 years of living in Texas. Maybe they exist at your business, but I haven't seen any since moving here in '91.
by ScottDLS
Fri Sep 15, 2017 5:37 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

KLB wrote:
ScottDLS wrote:Practically, the risk that I would be discovered and successfully prosecuted for my actions is low enough that I am willing to ignore such notice, and be comfortable that I am not breaking the law. :tiphat:
Fair enough, but everyone take note the comment conflates two different concepts:

1. "the risk that I would be discovered . . . is low enough"

Clients have asked me from time to time how likely it is that their proposed conduct will be discovered and that they will suffer adverse consequences. My reply is always some variation of "You are asking me not if X is legal but whether you can get away with doing X even if it is illegal. I was absent that day in law school."

2. " comfortable that I am not breaking the law."

This, of course, is what it sounds like, an opinion that the proposed conduct is legal. If you use the comment as a guide to your conduct, be aware of the two different points. Calculations of whether you can get away with something are always chancy and posts to this board, if traceable to you, are likely to be used in court.


1. My point was more that I am quite sure that my conduct is legal, but it is within the realm of possibility that I will be unjustly and unlawfully prosecuted such legal conduct. Therefore, I need to consider the relative risk of discovery, which bears on the chances of unjust prosecution.

2. It IS my opinion that the proposed conduct is legal, and the State's obligation is to prove that it is NOT, (to a very high standard since it is a criminal offense). LTC holders and LEO's make such decisions every time they choose to carry a handgun in public. According to some, it is illegal to carry a handgun in public, but you have a Defense to Prosecution if you meet one of the 46.15 criteria. For 30.05 you have more than a Defense, the State must prove the FACT that you were notified that entry was prohibited.

If I considered it a significant risk post my opinions and hypotheticals on a public gun forum, I wouldn't do so. However, I consider highly unlikely that posts to this board would be admissible at a criminal trespass trial, even on the extremely rare chance that they would be discovered in an investigation. I'm sure that the Denton County DA and Investigators have many higher priorities than gathering Web postings from TXCHLForum for a class B misdemeanor trespass case relating to a "dress code" violation. :lol:
by ScottDLS
Fri Sep 15, 2017 4:09 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

thetexan wrote:
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
Indicate that ENTRY IS FORBIDDEN. It is by no means clear that a sign saying "NO RED SHIRTS" is indicating that ENTRY IS FORBIDDEN. A company handbook saying that alcohol is not allowed on the premises is another example....OK alcohol is not allowed on the premises, but it doesn't say that my ENTRY IS FORBIDDEN. If I sneak a bottle of whiskey in it is by no means clear that my ENTRY WAS FORBIDDEN, so I don't think you're going to get me on criminal trespass. I have yet to see a publicly open establishment with a sign clearly indicating that ENTRY IS FORBIDDEN. It would seem somewhat self defeating. There is a hospital with sign on the door that says "no weapons". If I walk in with a concealed rifle during visiting hours to see my ailing aunt, it is by no means clear that I am committing criminal trespass. The burden of proof is on the State to prove BEYOND A REASONABLE DOUBT, the elements of the crime, at trial, assuming there is even enough probable cause to charge me. You can say it's word games, but that's what the law IS to a great extent. I believe my examples above are far from clear violations of 30.05 and I have seen no cases/AG opinions cited to suggest otherwise. Practically, the risk that I would be discovered and successfully prosecuted for my actions is low enough that I am willing to ignore such notice, and be comfortable that I am not breaking the law. :tiphat:
by ScottDLS
Fri Sep 15, 2017 3:03 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

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.
by ScottDLS
Mon Aug 14, 2017 11:12 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

C-dub wrote:
ScottDLS wrote:And let's get another myth out of the way, an oral notice to an off duty cop that he may not enter because he is carrying is not enforceable.
Really? Does that mean that when they are told they cannot stay because the business doesn't allow firearms and the officer leaves that they are only doing so out of the kindness of their heart or to simply take the path of least resistance? On or off duty, in or out of uniform when just getting something to eat?
Yes.
by ScottDLS
Mon Aug 14, 2017 12:49 am
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

aero10 wrote:
OlBill wrote:
C-dub wrote:
OlBill wrote:
ScottDLS wrote:
What about the classes that the State doesn't let you exclude? Off duty cops, emergency volunteers, special investigators, your employees carrying in your parking lot, etc.... :rules:
My understanding is you can exclude them, police don't have to follow The Sign, is that incorrect? Isn't that what happened to the Conroe police chief?

They have to have verbal notice?
I think that is correct OlBill. There is no sign that would prevent a police officer from carrying into a Sprouts, for example, but if they receive oral notification that they are not allowed to carry their gun into the store even if they are in uniform and not in their official capacity the officer would still have to leave. They can return without their handgun just like the rest of us can, but I'm not sure how many LEOs or us would actually return unarmed.
I think the sign should apply just like it does to me. It is notice.
30.06 is notice for LTC under that portion of the penal code; police officers are covered under a different section of the Texas penal code. I think you're going to have a hard time selling any codified restriction on police officers carrying (on or off duty). If you think LTC and officers should be in the same playing field, your best bet is removing restrictions on LTC, but then again we all saw how far HB560 went.

What is your rational that off-duty officers should be subject to 30.06?
My rationale is that no one should be subject to it. There is no other section of the penal code allowing you to post a sign to restrict cops from carrying on your property. The general trespass statute 30.05 has a specific exception for LEO carry. I guess you could post a NO COPS sign, or circle slash badge pictogram which some argue would make it a class B misdemeanor for a cop to enter your property, or a class A if they were also armed. Good luck with that. :smilelol5:
by ScottDLS
Mon Aug 14, 2017 12:44 am
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

Everybody seems to say that private property rights are so sacred in Texas, but then we have exceptions to 30.06 for cops, emergency volunteers, employees in the parking lot, etc. And let's get another myth out of the way, an oral notice to an off duty cop that he may not enter because he is carrying is not enforceable. Of course the practical solution is to tell him to leave for some other reason. And if a no red shoes, or no pink underwear sign doesn't constitute trespass notice unless an oral warning is also given, then I have been vindicated in a position I've been arguing for 12 years...

Finally I see no reason for a private property owner who otherwise invites you on his publicly open business should have the power of criminal sanction of trespass because of a sign stating his preferences. This to force you to comply with a preference of his that he can neither identify, is not aware of, nor has any effect on him (concealed carry, or pink undies).
by ScottDLS
Sun Aug 13, 2017 12:01 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

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.
What about the classes that the State doesn't let you exclude? Off duty cops, emergency volunteers, special investigators, your employees carrying in your parking lot, etc.... :rules:
by ScottDLS
Sat Aug 12, 2017 11:07 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

TreyHouston wrote:
OlBill wrote:
aero10 wrote: This isn't true. 30.06/7 has no bearing on off-duty police officers, even if they have a LTC.
And that needs to be corrected.
An off duty police officer (yes, its a job) has to follow the same rules as every citizen out there. There are no "special accommodations". Now, do other police officers cut them some slack? Yes.
If I believe correctly, only detectives, cheif, and ?sheriff? are immune when off duty BUT can not drink if carrying.
No, any police officer on or off duty is not committing a crime walking past a 30.06/7 sign. In Texas they can also not only drink, but be intoxicated and carry legally, though it would likely be a career limiting move. They can also carry in every state and DC without a permit. So in my opinion, they definitely are granted "special accommodations".
by ScottDLS
Sat Aug 12, 2017 1:36 pm
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

CZp10 wrote:
ScottDLS wrote: A Defense to Prosecution is the same thing that you have for carrying ANYWHERE under the authority of LTC, or while being a cop, or any of the other 46.15 exceptions, they are by appellate level case law only DEFENSES to prosecution. So the same thing with VESP and 30.06... Are you the "test case" every day by carrying with a LTC? :shock:
Just to be clear, it is not my definition, but the definition of the word criminal. Again, that is just pointless semantics, I was just trying to better, and I guess failing to, explain my earlier comments.

Being new to all this, I really don’t see how a “defense to prosecution” means much in the real world. It is just a few words that will not protect you in and of themselves. It seems like it will be up to the prosecution if they will challenge that particular defense, then the judge can weigh in, and ultimately up to the jury I guess. Looks like a lot of laws are written a bit vaguely and open ended to allow the court and prosecution to decide how they want to play it. I guess we are all test cases for a lot of things every day.

I don’t know how to search legal records, so I don’t know if anyone has ever been charged and convicted of a 30.06 or 30.07 class C level violation. If no one has ever been charged after they agreed to leave a properly posted location, I am not sure how we know what any of this means in the real world.
I agree it's semantics. You are a criminal if you speed. OK, so what? I don't care. I'm not advocating speeding, but if you have been convicted of it as many have, then what are the consequences? Well you have to pay the statutory fine, or perhaps pay higher car insurance, and of course live with the fact that you are now and for all time a CRIMINAL. :roll:

A Defense to Prosecution has a very specific definition in the Texas Penal Code which goes to "burden of proof" which in criminal cases is by Constitutional Law and tradition "beyond a reasonable doubt". The Defense vs. Exception, etc. lays out the point at which the issue must be raised; in charging, at trial, and whether the prosecutor or defense must raise the issue.
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.
by ScottDLS
Sat Aug 12, 2017 10:43 am
Forum: New to CHL?
Topic: another 30.06 question
Replies: 84
Views: 11096

Re: another 30.06 question

CZp10 wrote:Twomillenium,
I apologize for not being more clear, and for my ignorance. The law states that you have committed Criminal Trespass if you carry past a correctly worded/posted sign. I understand that you have to charged and agree to pay the $200 fine before you become a convicted criminal. I was arguing against, in principle, what I see as a poorly written law that, however unlikely, can theoretically can be used against otherwise law abiding people. Not being charged/convicted doesn’t undo the reality of actually being in violation of the law. Semantics I suppose, the basic definition of the word “criminal” is one who breaks the law, not just one who happens to end up being convicted. I can’t see anywhere that you can only be charged after refusing to leave, as you state. Leaving when asked still makes it a Class C violation, not leaving makes it a class A, why would there be two specifically listed classes of misdemeanor if you can only be charged with class A as you state?
(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.

Speeding 46 in 45 zone is a class C misdemeanor as well. So I would venture to guess by your definition approximately 50% of the population are criminals, along with my neighbors who let their grass grow more than 6" or water on the wrong day. It is a fact that speeding and lawn watering (in my town) are criminal offenses (class C). You can request a trial by jury in JP or municipal court if charged. Some states make these civil offenses, which means they are not a crime. But Texas makes them class c misdemeanors (crimes).
CZp10 wrote: Liberty,
I know I am making a mountain out of molehill, but I (rightly or wrongly) choose to think in the .01% chance of things happening, not the 99.99% it won’t. I also wanted to contradict posts that I see claiming paying the $200 is no big deal. It is a criminal conviction which can legally be used against you in the future. Would you mind please letting me know why you think being a red cross CPR certified volunteer would not be considered as: “any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations”?

Crazy2medic,
That is the $10,000 question. I would guess that not one single person anywhere can answer that question until it is tested in court. I have read everything I can find so far on it, and the bottom line is the law is so unbelievably vague that any defense attorney should be happy to fight in court for you. However, as I posted, you will have to pay for that attorney yourself. But as so many helpful people here have pointed out, it is a long series of events that have to occur before it matters. You have to carry past a correct sign, then law enforcement has to be called or be present and notice you, then they and the DA have decide to pursue the misdemeanor charge. I don’t think the law is meant to imply people can ignore 30.06 signs, but it gives you a “defense to prosecution” if you are seen to fall under the volunteer emergency personnel definition. Mr. Cotton wrote, “However, the Bill also provides a defense to TPC §§30.06 and 30.07 merely because they are VESP, whether or not they are “on duty.” This goes too far. Such exception should apply, but only when actually rendering emergency services.” I really don’t know how this will play out in reality.
A Defense to Prosecution is the same thing that you have for carrying ANYWHERE under the authority of LTC, or while being a cop, or any of the other 46.15 exceptions, they are by appellate level case law only DEFENSES to prosecution. So the same thing with VESP and 30.06... Are you the "test case" every day by carrying with a LTC? :shock:

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