Question about "trespassing" and 30.06

[Scott Farkus]

I apologize for starting yet another thread on this topic, but this specific question comes up a lot in these 30.06 discussions and I think it's important enough to merit its own thread.

Basically, the argument is often made that "you can't be arrested" - or "it's not trespassing" - for walking past a "no shirt/no shoes/no service" or a "no red underwear" etc. sign while barefoot/shirtless/wearing red underwear. Ergo, why can you be arrested/why is it trespassing for walking past a 30.06 sign while carrying? This argument is usually accompanied by a stated or unstated assumption that "you must be asked to leave" in those other instances before it's trespassing, because "no other sign except 30.06/30.07 carries the force of law".

My question is... is this true? While I understand that the chances of a business posting a "no red underwear" sign is essentially non-existent and the chances of anyone wearing red underwear being detected in said business is less than that, in this hypothetical, would the red underwear wearer technically be trespassing and subject to the requisite fines, penalties and possible arrest thereof with no prior warning necessary, simply by virtue of crossing a red underwear buster sign? I also understand that in the real world, it is far more likely that a property owner would ask the red underwear wearer or barefoot diner to leave rather than call the police, and that the police would likely not go to the trouble of actually arresting or issuing a citation to a red underwear wearer for that alone, but again, is this really what the trespassing laws say, or just what we assume would be done in a particular situation for practical reasons?

I ask this question because 30.06/30.07 makes no sense to me otherwise. If 30.06/30.07 is truly the only condition of entrance whereby a sign carries the force of law, then I have even more of a problem with 30.06/30.07 than I already do. But if any X-buster sign creates the same condition and potential trespassing violation, then I can better understand why 30.06 was put there in the first place even if I still have other reasons to disagree with it.

[RPBrown]

IANAL and I didn't sleep at Holiday Inn Express last night, but I will try to answer. The "no red underwear " sign is not written into law and are just a request of the owner and warning you will be asked to leave. Whereas the 30.06/30.07 signs are written into the statute thus giving a person with an LTC proper notice before entering. At least this is my own opinion.

[Soccerdad1995]

Others on this board are more knowledgeable on this, so hopefully they will chime in. My understanding is that prior to 30.06 signage laws being enacted, a Texas AG issued an opinion that walking past any "no guns" sign with a gun would constitute trespass. Since there was nothing in Texas statutes calling out no guns signs specifically versus any other type of prohibition, the logical conclusion is that this AG felt it would be a criminal trespass if you were to walk past a sign while violating the condition listed on that sign.

Personally, I find it very hard to believe that a jury of my peers would convict me for trespass because I wore a tie into the headquarters of a software company that had a very prominent sign stating "no tie zone". But that is the theory, I believe.

As far as I know, no cases along these lines have ever actually been litigated (for guns or otherwise). In other words, this is mostly conjecture.

[Scott Farkus]

IANAL and I didn't sleep at Holiday Inn Express last night, but I will try to answer. The "no red underwear " sign is not written into law and are just a request of the owner and warning you will be asked to leave. Whereas the 30.06/30.07 signs are written into the statute thus giving a person with an LTC proper notice before entering. At least this is my own opinion.

Well then that's what I've never understood - why did we write 30.06 uniquely into law? Why would we care about any "buster" sign if you still have to be asked to leave before it's a criminal violation? If concealed is concealed, nobody will ever know.

I'd trade that in a heartbeat for what we have now.

[Scott Farkus]

Others on this board are more knowledgeable on this, so hopefully they will chime in. My understanding is that prior to 30.06 signage laws being enacted, a Texas AG issued an opinion that walking past any "no guns" sign with a gun would constitute trespass. Since there was nothing in Texas statutes calling out no guns signs specifically versus any other type of prohibition, the logical conclusion is that this AG felt it would be a criminal trespass if you were to walk past a sign while violating the condition listed on that sign.

Personally, I find it very hard to believe that a jury of my peers would convict me for trespass because I wore a tie into the headquarters of a software company that had a very prominent sign stating "no tie zone". But that is the theory, I believe.

As far as I know, no cases along these lines have ever actually been litigated (for guns or otherwise). In other words, this is mostly conjecture.

I've seen posts referencing this but unfortunately I only got seriously "into guns" around 8 years ago and wasn't tuned in to the early days of Texas CHL beyond watching in disgust as Ann Richards vetoed it. IANAL either but that AG interpretation seems at best highly debatable.

[Charles L. Cotton]

IANAL and I didn't sleep at Holiday Inn Express last night, but I will try to answer. The "no red underwear " sign is not written into law and are just a request of the owner and warning you will be asked to leave. Whereas the 30.06/30.07 signs are written into the statute thus giving a person with an LTC proper notice before entering. At least this is my own opinion.

Well then that's what I've never understood - why did we write 30.06 uniquely into law? Why would we care about any "buster" sign if you still have to be asked to leave before it's a criminal violation? If concealed is concealed, nobody will ever know.

I'd trade that in a heartbeat for what we have now.

TPC §30.06 was created in 1997 in response to small, easy-to-miss "no gun" decals. It was the opinion of numerous district attorneys that entering a building that displayed one of those decals would constitute a criminal trespass under TPC §30.05. TPC §30.06 established a clear and unmistakable notice requirement.

Many people refer to "no shirt, no service" signs and correctly state that entering a building without a shirt would not constitute a criminal trespass under TPC §30.05. However, this is a faulty analogy since those signs refer to no service; they do not prohibit entry. If the sign read "do not enter without a shirt or shoes" and someone did enter, then I believe TPC §30.05 would apply. Why? Because §30.05 does not require any specific language as does §30.06. (See below.) Also, some people have argued that "no trespassing" signs must be an all or nothing situation. That is, you must exclude all people to be enforceable. Not so.

All this said, I haven't looked at §30.05 case law in 20 years and I may have forgotten something or new case law may have been created since 1996.

Chas.

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;
      
      (D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
    • • (i) vertical lines of not less than eight inches in length and not less than one inch in width;
        
        (ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
        
        (iii) placed at locations that are readily visible to any person approaching the property and no more than:
    • • • (a) 100 feet apart on forest land; or
          
          (b) 1,000 feet apart on land other than forest land; or
    (E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.

[lildave40]

Has anyone heard of someone being arrested and found guilty for walking past a sign?

[nonleg]

I've never seen a concealed carrier arrested in Texas in a 30.06 or otherwise non permitted location (post office, polling location, sporting event, etc.)

In *Georgia*, I *have* seen direct evidence of concealed carry folks (under the awful, loosely defined, "public gathering" ban on weapons), but *always* as a secondary offense (ie, being told to leave, jawing with the cops and the subsequent arrest). The public gathering clause there was so loose that if there was a car wreck, and a handful of people gathered to assist, you could technically be charged with carrying at a public gathering (a lot worse than the penalty imposed on TX for 30.06 and .07 violations.) It's not on the concealed topic, but the harassment we all experienced in GA (permit grants open and concealed) in open carry was stupendously worse than what I've seen in Texas.

[Scott Farkus]

TPC §30.06 was created in 1997 in response to small, easy-to-miss "no gun" decals. It was the opinion of numerous district attorneys that entering a building that displayed one of those decals would constitute a criminal trespass under TPC §30.05. TPC §30.06 established a clear and unmistakable notice requirement.

Many people refer to "no shirt, no service" signs and correctly state that entering a building without a shirt would not constitute a criminal trespass under TPC §30.05. However, this is a faulty analogy since those signs refer to no service; they do not prohibit entry. If the sign read "do not enter without a shirt or shoes" and someone did enter, then I believe TPC §30.05 would apply. Why? Because §30.05 does not require any specific language as does §30.06. (See below.) Also, some people have argued that "no trespassing" signs must be an all or nothing situation. That is, you must exclude all people to be enforceable. Not so.

All this said, I haven't looked at §30.05 case law in 20 years and I may have forgotten something or new case law may have been created since 1996.

Chas.

Thank you, I appreciate the response. Yes, I can see that a "no shirt, no shoes, no service" example is a bit of an apples and oranges thing, since it just says "no service", not "stay out of this place".

If it's true that any "buster" sign would be considered to have the same force of law as 30.06, I can accept that from a legal standpoint. I still think the whole signage issue needs to be revisited, but that's been over discussed already. I'm just trying to understand how and why we got to where we are, because on the surface it seems quite odd in many ways. I can't stand laws that are patently inconsistent, especially when the inconsistency is biased against a constitutional right.

Another reason this has been eating at me lately is that we took a trip to Alabama this summer, spending some time in New Orleans along the way, and I did not see a single "No Guns" sign of any kind, anywhere. Not even on Bourbon Street, and I was looking hard. I'm sure Alabama and Louisiana carry laws have their own quirky things that they complain about, but are our trespassing laws so much different from those in other states that we need three different signs?

[rotor]

How about a no guns decal (Beretta with a slash) and carrying a long gun? If the picture only showed a handgun would a rifle be banned? Just curious. Not talking LTC but in general. In other words, would a gun decal showing a handgun ban my Keltec sub2000 rifle?

[rtschl]

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 and bigger.

I am also glad the penalty for 30.06 was reduced to a Class C misdemeanor but I would like to see the law changed so that it does not become a penalty unless you refuse to leave so that it is basically the same as any other criminal trespass (CT) warning. Warning first then citation.

I have had CT issued by the police and they will not issue the first time on the scene. They warn the person and if the person comes back then they issue the CT. Though the CT does not expire the police have told me they will not enforce one over 6 months old they'll just issue a new one. That is probably department policy that they are following.

[thetexan]

Both 30.05 and 30.06, as well as now 30.07 have one thing in common...all three very precisely define what constitutes the notification of the trespass that must be satisfied to create the condition of being in trespass. Once that requirement of notification has been satisfied then the resulting condition of trespass (which is dependent upon the fulfillment of notification) exists.

And in none of the three (referring to the use of signage or written documents as the method of notification) does the fulfillment of the requirement of having been notified require an oral or verbal warning or prohibition first, or in addition to, or as part of the signage prohibition.

A sign prohibiting entry based on virtually any reason meets that requirement as per 30.05. Now whether or not that reason is lawful under the many discrimination statutes is a test left to the courts to decide in any discrimination action. For example, I believe, a store could put a sign stating "NO MALES ALLOWED TO ENTER" and that sign would meet the technical requirements of notification of 30.05 as written. Does a male have a discrimination claim? Yes, of course. And the validity of that claim will be found among the various state and federal anti-discrimination statutes, not in 30.05, which defines WHAT trespass is, HOW to notify of prohibitions to entry, penalties and excepted persons.

tex

[Scott Farkus]

Well, the whole protected classes thing both muddies the water and, in my opinion at least, gives even less credence to why we allow businesses to exclude licensed concealed carriers, but that's a different discussion that we've already had many times.

So protected classes aside, if I'm understanding correctly, 30.05, as we believe it would be currently interpreted based on the Dan Morales opinion, would in fact treat a "No Tattoos" sign as having the force of law if a tattooed person entered such a posted premise. Now, I know it would never happen (certainly not in Austin unless you wanted to run off 75% of your potential customers), but theoretically, a tattooed individual would be committing a Class A misdemeanor if he or she entered an establishment with a "No Tattoos" sign on the door.

If that's truly what the law says, I have to say that's pretty silly. It doesn't seem at all unreasonable to me to require a business owner to at least ask you to leave before escalating to a criminal violation. I think in real life that's how it's handled 99% of the time, sign or no sign. I don't see property owners calling the police for smoking in a no smoking zone - I see them asking the smoker to put the cigarrette away (sometimes, sometimes they don't even care which is also the property owners perogative unless no smoking is required by law) and then asking the smoker to leave if they don't. Maybe after all that, yeah, the police are called but by that time you've likely got a different situation on your hands.

[ScottDLS]

Well, the whole protected classes thing both muddies the water and, in my opinion at least, gives even less credence to why we allow businesses to exclude licensed concealed carriers, but that's a different discussion that we've already had many times.

So protected classes aside, if I'm understanding correctly, 30.05, as we believe it would be currently interpreted based on the Dan Morales opinion, would in fact treat a "No Tattoos" sign as having the force of law if a tattooed person entered such a posted premise. Now, I know it would never happen (certainly not in Austin unless you wanted to run off 75% of your potential customers), but theoretically, a tattooed individual would be committing a Class A misdemeanor if he or she entered an establishment with a "No Tattoos" sign on the door.

If that's truly what the law says, I have to say that's pretty silly. It doesn't seem at all unreasonable to me to require a business owner to at least ask you to leave before escalating to a criminal violation. I think in real life that's how it's handled 99% of the time, sign or no sign. I don't see property owners calling the police for smoking in a no smoking zone - I see them asking the smoker to put the cigarrette away (sometimes, sometimes they don't even care which is also the property owners perogative unless no smoking is required by law) and then asking the smoker to leave if they don't. Maybe after all that, yeah, the police are called but by that time you've likely got a different situation on your hands.

30.05 is a general criminal enforcement mechanism for conduct on publically open or private property. You can invoke it to charge anyone with a Class B if they don't follow your list of "rules".

I use it to have my tenants arrested for paying late. I have a sign, saying NO DEADBEATS on all my properties. I also have it in my leases..one day late, you get arrested.

My employer uses it to have people arrested for showing up to work late. We have a sign that says "entry prohibited if you're late". Sometimes we let them go (i.e. give them permission to stay even if they're late), but usually we call the Sheriff.

Stores use it for criminally enforcing their dress code (coat and tie required to enter sign). Tieless, you get arrested. No shabby clothes...we have people arrested for "fashion crimes" which we define.

No loitering...If you walk into my store and don't buy anything....Class B for you.

No thongs... Even if hidden under your pants, it's illegal to enter wearing a thong.

No fat people (circle slash fattie)....even if we don't have scales at the entrance, we can have you arrested for being a fattie and walking past our sign.

[Scott Farkus]

If I'm understanding correctly, then yes, those people in your example are technically in violation of 30.05 and could be arrested for trespassing. Obviously it will never happen for all sorts of reasons, but as far as I can tell, that is exactly where the logic leads. And as I said earlier, that just seems silly.

That's why I asked for clarification on this. I think if people (/cough/ legislators /cough/) realized what the law really said, and how ridiculous the examples can get, they might be more willing to take a look at it and rethink some things.