30.06 vs <51% Sign Posting?

[Keith B]

I'm in a small town, we have no Wal-Mart so I have to go to another city to do my Wally Walk, but my first carry was to my bank, which has a ghostbusters sign, and then to the H.E.B. grocery store, where I read wine lables in that section (though I don't drink, so I've never been in that section before lol, but since they sell alcohol [regulated by TABC/licensed by the State] and their alcohol derived income is less than 51%, they can't post 30.06 signs nor 51 signs) and then did my grocery shopping.

What law says they can't post a 30.06 sign?? They must post the correct TABC sign, but I am not aware of anything that says they can't post 30.06 on a private business even if they do sell alcohol.

[RPB]

I haven't looked it up .... that's what my CHL instructor said and he's also law enforcement officer, and was emphatic that that is the case and that's why restaurants which serve alcohol can't post them. The subject actually came up when he used HEB as an example, and said they CAN'T prohibit carrying there, because they sell wine, and I mentioned seeing the "carrying a handgun by an UNLICENSED person on these premesisis a felony" type sign in a restaurant.

I'll ask him when I see him again, I may search the codes/statutes too ... probably in TABC code.

[RPB]

Probably this:

In other words, this applies to those places who sell alcohol, that are not required, under § 411.204. NOTICE REQUIRED ON CERTAIN PREMISES ( those who post 51 signs etc)


http://www.statutes.legis.state.tx.us/D ... htm#11.041" onclick="window.open(this.href);return false;

ALCOHOLIC BEVERAGE CODE
TITLE 3. LICENSES AND PERMITS
SUBTITLE A. PERMITS
CHAPTER 11. PROVISIONS GENERALLY APPLICABLE TO PERMITS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 11.01. PERMIT REQUIRED. (a) No person who has not first obtained a permit of the type required for the privilege exercised may, in a wet area, do any of the following:
(1) manufacture, distill, brew, sell, possess for the purpose of sale, import into this state, export from this state, transport, distribute, warehouse, or store liquor;
(2) solicit or take orders for liquor; or
(3) for the purpose of sale, bottle, rectify, blend, treat, fortify, mix, or process liquor.

Sec. 11.041. WARNING SIGN REQUIRED. (a) Each holder of a permit who is not otherwise required to display a sign under Section 411.204, Government Code, shall display in a prominent place on the permit holder's premises a sign giving notice that it is unlawful for a person to carry a weapon on the premises unless the weapon is a concealed handgun of the same category the person is licensed to carry under Subchapter H, Chapter 411, Government Code.

(b) The sign must be at least 6 inches high and 14 inches wide, must appear in contrasting colors, and shall be displayed in a conspicuous manner clearly visible to the public. The commission or administrator may require the permit holder to also display the sign in a language other than English if it can be observed or determined that a substantial portion of the expected customers speak the other language as their familiar language.

Added by Acts 1997, 75th Leg., ch. 1261, Sec. 16, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 9.18, eff. Sept. 1, 1999.

-------------------

So, my instructor the law enforcment guy, says any place that sells alcohol, which gets LESS than 51% income from alcohol (like restaurants or Grocery stores etc with beer/wine permits... must put up that sign allowing/ not forbidding CHL licensees to carry, but if no sign is present, you still aren't forbidden, and if they post the required sign, then you are an in the "unless group" and not forbidden to carry concealed in there. If they put up a 30.06 sign, then they are using the wrong sign, and not the one required by TABC, because the correct sign says we are allowed, as part of the "unless" group of people. An improperly posted 30.06 sign saying we are NOT allowed would necessarily contradict the REQUIRED sign, which says we ARE .... therefore, they can't post a 30.06 sign.
---------

Anyway, that's what he says ... makes sense to me too.

IANL I am no lawyer

[Keith B]

Probably this:

In other words, this applies to those places who sell alcohol, that are not required, under § 411.204. NOTICE REQUIRED ON CERTAIN PREMISES ( those who post 51 signs etc)


http://www.statutes.legis.state.tx.us/D ... htm#11.041" onclick="window.open(this.href);return false;

ALCOHOLIC BEVERAGE CODE
TITLE 3. LICENSES AND PERMITS
SUBTITLE A. PERMITS
CHAPTER 11. PROVISIONS GENERALLY APPLICABLE TO PERMITS
SUBCHAPTER A. GENERAL PROVISIONS

Sec. 11.041. WARNING SIGN REQUIRED. (a) Each holder of a permit who is not otherwise required to display a sign under Section 411.204, Government Code, shall display in a prominent place on the permit holder's premises a sign giving notice that it is unlawful for a person to carry a weapon on the premises unless the weapon is a concealed handgun of the same category the person is licensed to carry under Subchapter H, Chapter 411, Government Code.

(b) The sign must be at least 6 inches high and 14 inches wide, must appear in contrasting colors, and shall be displayed in a conspicuous manner clearly visible to the public. The commission or administrator may require the permit holder to also display the sign in a language other than English if it can be observed or determined that a substantial portion of the expected customers speak the other language as their familiar language.

Added by Acts 1997, 75th Leg., ch. 1261, Sec. 16, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 9.18, eff. Sept. 1, 1999.

-------------------

So, my instructor the law enforcment guy, says any place that sells alcohol, which gets LESS than 51% income from alcohol (like restaurants or Grocery stores etc with beer/wine permits... must put up that sign allowing/ not forbidding CHL licensees to carry, but if no sign is present, you still aren't forbidden, and if they post the required sign, then you are an in the "unless group" and not forbidden to carry concealed in there. If they put up a 30.06 sign, then they are using the wrong sign, and not the one required by TABC, because the correct sign says we are allowed, as part of the "unless" group of people. An improperly posted 30.06 sign saying we are NOT allowed would necessarily contradict the REQUIRED sign, which says we ARE .... therefore, they can't post a 30.06 sign.
---------

IANL I am no lawyer

While I think that would be nice, with all due respect I think your instructor was incorrect. I do know they must post the proper signage per TABC guidelines. However, I don't believe that prohibits them from ALSO posting a 30.06. The reason being, there is nothing in TABC guidelines stating they can't otherwise restrict concealed carry, and 30.06 doesn't state if they are a less than 51% establishment that they can't post the signage. Also, there are several establishments that sell alcohol that have proper 30.06 signs up. I can guarantee I won't be a test case.

IANAL either, but we have one on the forum and also a TABC person that can maybe weigh in on this.

[RPB]

Good, I'd love input from a lawyer and a TABC person on this, until then, I guess I can search for caselaw on it, if any exists, I'm a retired (25 years) legal assistant from back before legal assistant schools existed. so my courses were from UofH law school , using law school textbooks and professors, who was a member of the legal assistant's division of the bar, tutored/mentored quite a few lawyers in the past on other issues before and after they passed the bar, including a couple previously on the greivance committe, and have written Texas Supreme Court, as well as numerous Appelate Court pleadings for my supervising attorney and won etc, but I was hurt in an accident after acceptance to law shchool and life events prevented me attending later..... Anyway, I got old and retired, so I only eat at restaurants which also serve alcohol, because ones which don't serve alcohol I assume can post 30.06 signs, whereas any which posted one sign saying I can next to another conflicting sign saying I can't, I'd assume is in error in posting one which contradicts the "required" sign.

I just can't see a city posting a steady red light next to a steady green light facing the same direction.

Still ... IANL, and this was not my area of specialty, so I'd love input from a lawyer and a TABC person on this
I'm a CHL newbie, and trying to learn as much as I can.... it may actually even be some other law which would keep them from posting a 30.06 sign, but that's what I would assume, based on the required language of the required sign according to the Alcoholic Beverage Code..

[Keith B]

BTW, here are the signs. Note that the <51% sign does not state anything about a concealed handgun licensee, it just states the unlicensed possesion...... So, there is nothing on the that would contradict a 30.06 or give us permission to carry.



And here is the 51% sign



Hopefully they will chime in here.

[RPB]

Thanks for the signs. Are two signs compliant with current law?, see: http://www.legis.state.tx.us/tlodocs/81 ... 03883I.htm" onclick="window.open(this.href);return false;
SECTION 5. This Act takes effect September 1, 2009........... ??? I wonder ...did that pass? I'll have to look later, tired now
September 1, 2009 ... looks like a re-write from 2005,
http://www.legis.state.tx.us/tlodocs/81 ... 03883I.htm" onclick="window.open(this.href);return false;
must not have passed in 2005 http://www.capitol.state.tx.us/tlodocs/ ... 01549H.pdf" onclick="window.open(this.href);return false;
I actually don't drink, go into bars or anyplace that would have a 51 sign posted,


The cited 11.041 section (or § 61.11 section). § 61.11 WARNING SIGN REQUIRED. (a) Each holder of a
license who is not otherwise required to display a sign under
Section 411.204, Government Code, (a 51 sign) shall display in a prominent
place on the license holder's premises a sign giving notice that it
is unlawful for a person to carry a weapon on the premises unless
the weapon is a concealed handgun of the same category the person is
licensed to carry under Subchapter H, Chapter 411, Government Code)
doesn't mean those 51 signs, and excludes permit holders required to post the 51 signs. So. it refers to the top sign.

True that the top sign might be compliant with the Code's language, in a way ... since it may not be mandated language like 30.06 requires specific language.

The code appears to currently say: "unless the weapon is a concealed handgun of the same category the person is licensed to carry under Subchapter H, Chapter 411, Government Code." so that implies I can carry there, since I'm licensed, and belong to that "unless" catagory of persons.

Putting up a separate "30.06 sign" which attempts to circumvent the execption afforded by the "ALCOHOLIC BEVERAGE CODE 11.041 sign" as it applies to "persons licensed to carry under Subchapter H, Chapter 411, Government Code" just seems contradictory, vague, ambiguous and confusing

Sec. 11.041. (and § 61.11 )WARNING SIGN REQUIRED. (a) Each holder of a permit who is not otherwise required to display a sign under Section 411.204, Government Code (a 51 sign)

Refers to the sign which is required that says "unless the weapon is a concealed handgun of the same
category the person is licensed to carry under Subchapter H, Chapter 411, Government Code."

So, maybe there's newer changes to the Code which I am unaware ( probably lol) Maybe there's a newer one my instructor is mentioning, he keep really current on things.

But what I'm seeing as current in the code, and is newer than the 2005 police language signs language, still says the "unless" part in the specific signage I'm referring to, not the 51 sign.

I'm sure they could have passed something which is not yet updated in the online Codes, but here's the link to what I have for Sec. 11.041 http://www.statutes.legis.state.tx.us/D ... htm#11.041" onclick="window.open(this.href);return false;

I suppose it's merely an academic question, since I've never seen both signs in the same place, on a convenience store, restaurant, grocery store, etc

But it does pose an interesting question regarding convenience stores, restaurants, grocery stores who post TABC "required" (non-51), 11.041/§ 61.11 signs and also, I assume in error, post conflicting 30.06 signs.

I hope they chime in too. Until then, I assume that if I see the top "required" sign, I'm a member of the "unless" exception group, since I'm licensed, and that I'm permitted to carry there. Because I can't stop on a red and go on a green simultaneously at the same time, and that sign is "required" so the other must be an error if it contradicts and adds ambiguity to the required one intended by the code, to give notice to a specific group, while excepting another group, by the language "unless". Would it be "effective notice" with conflicting ambiguity? http://www.legis.state.tx.us/BillLookup ... ill=HB2664" onclick="window.open(this.href);return false;

[RPB]

Um, what were talking about? Oh yeah, congrats to our new member re: first armed expedition! Don't worry that "everbody can tell" will go away soon enough. Just remember if your about to hug anyone other than your spouse, lean your non-carry hip into the hug, lest you give a false impression

LOL I appologize, I wasn't intentionally trying to hijack the thread.
Good advice above ... "Is that a gun barrel in your pocket, or are you just glad to see me?"

[Keith B]

I have moved this discussion into this thread so we can continue. I am very interested in this as a perceived loophole in the Texas statutes.

Hopefully srothstein and/or Charles will weigh-in on this discussion.

[RPB]

Thanks Keith

I believe the ""unless the weapon is a concealed handgun of the same
category the person is licensed to carry under Subchapter H, Chapter 411, Government Code."" creates an exeption to a prohibition.

Another "glitch" I'd like to address on another day in another thread is :

Regarding Texas Penal Code § 46.11

that "exhibit or threatening to exhibit" in a school parking lot is a 3rd degree felony, Texas Education Code, EDC Section 37.125 is not "does not apply to 46.03(a)(1)" to which it does not apply... it's an offense under a different law than ...46.03(a)(1)"


I mean that it is not only the Penal Code and Federal Gun Free zone laws which regulate us in that situation, and that the definition of Premises which applies to Penal Code 46.03(a)(1)" is not the same definition of Prmises assigned by Section 481.134, Health and Safety Code, to which § 46.11 might apply ... because, a violation of Texas Education Code, EDC Section 37.125 is something other than46.03(a)(1), to which it does "not apply"

I mean .... § 46.11. might could be used to enhance a conviction under Texas Education Code, EDC Section 37.125 , even though § 46.11. "does not apply to Penal Code 46.03(a)(1)" and could not be used to enhance a conviction under that.

BUT, if convicted under Texas Education Code, EDC Section 37.125 , then when the penalty phase of a bifurcated trail begins, for enhancement purposes only, the definition of premises then changes to our detriment. In my view, it's just a glitch I'd hope could be cleared up in the next legislative session, if they's use the same definition of premises both times, but they's still be able to use enhancement of a penalty for violations of anything but Penal Code 46.03(a)(1), such as Texas Education Code violations.

§ 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
SCHOOL ZONE. (a) Except as provided by Subsection (b), the
punishment prescribed for an offense under this chapter is
increased to the punishment prescribed for the next highest
category of offense if it is shown beyond a reasonable doubt on the
trial of the offense that the actor committed the offense in a place
that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place;
or
(B) an event sponsored or sanctioned by the
University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section
46.03(a)(1).
(c) In this section:
(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code."



Texas Health & Safety Code - Section 481.134. Drug-Free Zones
(4) "Premises" means real property and all buildings
and appurtenances pertaining to the real property.

[dicion]

I see no conflict between a location posting both signs.

One sign Prohibits Unlicensed Carry.
One sign Prohibits Licensed Carry.

Texas laws are based on prohibition. They don't list what's allowed, only what's not. Likewise with these signs. A sign saying 'unlicensed carry is prohibited' is NOT saying 'licensed carry is allowed'.

Using the 'Traffic Light' analogy used earlier, it's like having a Straight Through Light, and a Left Turn Light

One can be green, and the other red, or they can both be red, or they can both be green. No conflict between allowing one, or the other, or both, or neither.

Another Traffic Analogy. A 'No U-Turn' Sign and a 'No Right on Red' sign can be posted at the same location.
I'd like to see you argue that because you were not allowed to U-Turn, that you can make a right on red, even with the sign there.

I'd be willing to put cold, hard cash on a judge or a jury reading it the same way as I do.
Also, your first mistake was trusting that any one person knows the finer points of every law, especially a LEO (no offense to LEO's intended, you know what I mean here)


RPB, if you want to see an 'interesting' actually Verified Glitch in CHL law, Research how 46.02 is exempted for people carrying lawfully under CHL.
You'll find that lawfully carrying a concealed handgun exempts you from the entirety of 46.02, not just the 'handgun' portion of it.
This means that legally, if you are carrying a Concealed Handgun Lawfully, you can also carry an 'Illegal Knife' lawfully at the same time.
Eg, you can walk through Wal-Mart carrying a Katana, lawfully

This has not been tested in court, but it's funny nonetheless.

[RPB]

I see no conflict between a location posting both signs.

One sign Prohibits Unlicensed Carry.
One sign Prohibits Licensed Carry.

Texas laws are based on prohibition. They don't list what's allowed, only what's not. Likewise with these signs. A sign saying 'unlicensed carry is prohibited' is NOT saying 'licensed carry is allowed'.

Using the 'Traffic Light' analogy used earlier, it's like having a Straight Through Light, and a Left Turn Light

One can be green, and the other red, or they can both be red, or they can both be green. No conflict between allowing one, or the other, or both, or neither.

Another Traffic Analogy. A 'No U-Turn' Sign and a 'No Right on Red' sign can be posted at the same location.
I'd like to see you argue that because you were not allowed to U-Turn, that you can make a right on red, even with the sign there.

I'd be willing to put cold, hard cash on a judge or a jury reading it the same way as I do.
Also, your first mistake was trusting that any one person knows the finer points of every law, especially a LEO (no offense to LEO's intended, you know what I mean here)

Good point, It's the green arrow turn light that creates the exception to the prohibition created by the solid red light.

That's exactly what I mean ... the ""unless the weapon is a concealed handgun of the same
category the person is licensed to carry under Subchapter H, Chapter 411, Government Code."" creates an exeption to a prohibition.

In the traffic situation, you are allowed to proceed in spite of the prohibition created by red light, because of the exception created by the green arrow ... in the carry situation, I assume the same.

[Keith B]

Thanks for the signs. Are two signs compliant with current law?, see: http://www.legis.state.tx.us/tlodocs/81 ... 03883I.htm" onclick="window.open(this.href);return false;
SECTION 5. This Act takes effect September 1, 2009........... ??? I wonder ...did that pass? I'll have to look later, tired now

HB 3883 was left pending in committee at the last legislative session.

The sign above for <51% is the current sign that is out there AFAIK and is still valid. BUT, I don't see where the sign authorizes us to carry there. It prohibits UNLICENSED possession and doesn't RESTRICT you from carrying if you have a CHL. I do think the verbiage in the statute is misleading and I can see where you could potentially interpret it as the sign has to have the wording.

Now, as for the 30.06 sign; In getting the CHL law passed, they had to provide a method for allowing private businesses to prohibit concealed carry if they did not want it on their premises. The 30.06 sign provides that. And, there is no exception written into the statutes that says 'unless the business sells alcohol' or something like that in the statute. So, I believe the INTENT (a big part of the rulings and how it would play out in a court ruling) is that unless they are listed in the group of places that are not allowed to post 30.06 (government buildings, etc.) then they would be allowed to post a 30.06 sign and it would carry more weight and the 30.06 statute would trump the TABC rule. Now, without a test case we may never really know. I can provide you a few places that are listed with 30.06 signs and sell alcohol if you would like to be guinea pig. I personally won't try that one out myself.

Great discussion BTW!!

[RPB]

LOL, I'd be a test case, if my local restaurants, convenience stores, and HEB grocery store, or Wal-Mart, who sells alcohol, post both signs, but since I'd require the local public defender, since I'm a "poor people," I know I'd end up doing most of the work myself. I believe I was once authorized to "practice inside the bar" on a case where a current "candidate for Gubbner," Barbara Radnofsky of Vinsen and Elkins was at the "other table" to give closing arguments etc. It was either against G.M. or Subaru, back in the 1980s, I can't recall. My primary areas of expertise was Trial Law, and Personal Injury, both State and Federal; Since I retired, I've fought and won MERP and Social Security claims, but I'm new to CHL. However, I'll just go with whatever an attorney and TABC guy say, if they'll respond on this one. I re-tired, because I was tired.

[whumble]

A BILL TO BE ENTITLED
AN ACT
relating to certain warning signs required on certain premises.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.041(a), Alcoholic Beverage Code, is
amended to read as follows:
(a) Each holder of a permit who is not otherwise required to
display a sign under Section 411.204, Government Code, shall
display in a prominent place on the permit holder's premises a sign
giving notice that it is unlawful for a person to carry a weapon on
the premises unless the weapon is a concealed handgun of the same
category the person is licensed to carry under Subchapter H,
Chapter 411, Government Code. The sign must also indicate that the
prohibition does not apply to peace officers or honorably retired
peace officers who, under Section 46.15, Penal Code, or other law,
are exempt from the prohibition.
SECTION 2. Section 61.11(a), Alcoholic Beverage Code, is
amended to read as follows:
(a) Each holder of a license who is not otherwise required
to display a sign under Section 411.204, Government Code, shall
display in a prominent place on the license holder's premises a sign
giving notice that it is unlawful for a person to carry a weapon on
the premises unless the weapon is a concealed handgun of the same
category the person is licensed to carry under Subchapter H,
Chapter 411, Government Code. The sign must also indicate that the
prohibition does not apply to peace officers or honorably retired
peace officers who, under Section 46.15, Penal Code, or other law,
are exempt from the prohibition.
SECTION 3. Section 411.204(c), Government Code, is amended
to read as follows:

(c) The sign required under Subsections (a) and (b) must
give notice in both English and Spanish that it is unlawful for a
person licensed under this subchapter to carry a handgun on the
premises. The sign must also indicate that the prohibition does not
apply to peace officers or honorably retired peace officers who,
under Section 46.15, Penal Code, or other law, are exempt from the
prohibition. The sign must appear in contrasting colors with block
letters at least one inch in height and must include on its face the
number "51" printed in solid red at least five inches in height.
The sign shall be displayed in a conspicuous manner clearly visible
to the public.

I think this says it all for me.