TexasCHLforum.com

EEllis wrote:

mojo84 wrote:
Where was the "should" question asked? What would the damages the "theater" or bowling alley/laser tag be based on? Would the cop or his department be liable? You have indicated before there would need to be damages to the plaintiff for a settlement to be rendered. What are the damages that justify a "big time" settlement?

Are you going to call me names if you dislike my answers?

Point out the name-calling in the quote you included in your post, or apologize to mojo84. Your constant antagonizing approach to every subject is over.

Chas.

EEllis wrote:

puma guy wrote:

I guess we'll just have to disagree. The building is owned by the City of Pasadena. Doesn't matter what venue is renting the building it can not be made off limits to CHL by any of the 30.06 notification methods, i.e. verbal, written or signage notification per SB273. Having police force CHL holders unloading their weapons is oxymoronic to the intent of being able to carry a concealed weapon since it's rendered useless. It may even be illegal, unless the police are going to claim it's for officer safety; but that horse may not trot, since they are specifically enforcing the illegal notice on the ticket and signage. Say a school puts up a sign to prevent a CHL from having their weapon loaded while in the parking lot and hires police to enforce it. Are you Ok with that? In my humble non-lawyer opinion Pasadena will lose this battle.

It's the law not logic that we are dealing with here. This is in no way covered by SB273 that I can see. It's a loophole. Courts are not supposed to close loopholes. SB273 covers carrying the gun and and specifically 30.06 warnings. It says nothing about ammo. Now violating the house rule would mean nothing and all they could do is ask you to leave if caught, no way to legally arrest or any legal consequence. This isn't a 30.06 issue. 30.06 has legal consequences on violation. This, and your school thing, doesn't.

If you are suggesting that SB273 won't cover ammo, then that's a non-starter. No, ammo was not mentioned but there is ample case law that deals with this type of attempt to avoid legislative intent. A city cannot set a minimum driving age of 21 years in violation of Texas law. What you are suggesting is that they could pass a city ordinance that makes it unlawful for someone under age 21 to put gasoline in a car. More importantly, there's no provision under state law for a promoter using public property to exclude persons for any reason related to ammo. Thus, there would be no criminal offense to be charged.

Chas.

mojo84 wrote:Is it a lawful order for them to try to enforce house rules are are not legally enforcable in the first place?

HPD told it's officers working extra jobs at gun shows on City of Houston property to stop enforcing the 30.06 sign. They said Texas law doesn't allow government property to be posted and that the sign was nothing more than the promoter's private policy. HPD correctly stated that its officers cannot enforce policies, only Texas law and city ordinances. The promoter's response was to hire Harris County Deputies.

Chas.

JKTex wrote:

JohnMarine wrote:Austin city hall is posted. They hold court some times and have the whole building posted everyday regardless if there is court that day or not.

A court or building with space used as a court is a prohibited place regardless of 30.06 so if Austin City Hall is posted, it's for no effective reason.

This is incorrect. The definition of "premises" includes "a building or portion of a building, . . ." If only a portion of a building is used as a court, then only that portion of the building is off-limits.

Chas.

HB508 would have stopped these blatant attempts to intimidate Texans by creating a $10,500 a day per sign fine for governmental entities and agencies posting unenforceable 30.06 signs. Thanks to Sen. Dan Patrick, we don't have that bill and now he wants to be Lt. Governor and control legislation that gets to the floor in the Senate.

Chas.

bentcursor wrote:

Scott Farkus wrote:Now cities/counties doing it, that's a totally different story. This should be illegal if the building does not contain a court or any of the other stipulated exceptions, and there needs to be penalties imposed on the appropriate officials. I believe I read somewhere that Florida imposes a $5000 fine on any official that allows their version to be put up when it's not authorized. But as of now, as far as I know, Texas has no such prohibition or penalty, so there would be no grounds for a lawsuit. There should be, but there's not.

You're right - individuals and businesses can put up any sign they want, but there should be a penalty for cities/counties that put up unauthorized signs in contravention of the law. So the first step would be to make those signs illegal.

Funny you should mention that.

Chas.

jyatesmp wrote:I've read up on your background and I agree with you 100% on the above explanation. I was just pointing out that one could be taken to jail under 30.05 on private property. A change in the wording to include the Case Law findings may need to be addressed. In the situation you have given this would prevent the arrest and save everyone involved time, money and stress. As I said I don’t ever see myself doing this unless I am left no other option. As far as on government property, this should never happen unless it is a place prohibited. Also don't get me wrong, I am very pro CHL. I just do not agree with some of the wording and/or restrictions imposed.

This discussion has given me an idea for a language change in TPC §30.05. It would basically move CHL's the the subpart dealing with LEOs.

Thanks,
Chas.

jyatesmp wrote:

Charles L. Cotton wrote:

jyatesmp wrote:Where does it say "30.05 does not apply to a CHL, if the only reason for exclusion is the fact that the CHL is armed."?

It's called the doctrine of presumptive repeal. Also, in statutes, "the specific controls over the general." When TPC §30.06 was enacted, it provides the only means by which a CHL can be prosecuted for criminal trespass, if the reason they were excluded was the fact that they were armed..

Please show me where it says this. (Give me a Texas State Law link, statute or something)

Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN states
e) It is an exception to the application of this section (not any other section) that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

Nothing about private property. This is what I am getting at. No where in 30.06 or 30.05 does it say you are exempt from being prosecuted for criminal trespass if you hold a CHL. On government property yes, not private property. 30.05 states it is a defense to prosecution not an exemption.

Charles L. Cotton wrote: You are a peace officer and are you telling us you have never heard this either in the academy or any of your 40 in-service courses?

The section you referenced (§30.05(i)) was added so that no peace officer could ever be excluded from any property in the state, even private property, even when they are off duty. (What an absurd law!)

Chas.

Edited to add: I left out fatal conflicts between statutes. If two statutes are in conflict, the later passed statues controls.

I did forget about this on conflicting statutes however the two are not conflicting. 30.06 is specifically giving a CHL holder on government property an exemption and 30.05 is specifically talking about anyone on any property (other than government property) and specifically making it a defense to prosecution for a CHL holder.

Please don't get me wrong. I agree with you and I would not take someone to jail for this. I am not trying to say a LEO is above anyone or should be. I am just pointing out what the two statutes say and feel the wording in 30.05 or 30.06 should include an exemption if the reason for being criminally trespassed is the fact you have a CHL and are armed. As of now it is a defense to prosecution and not an exemption. Still could go to court on 30.05, and in the 30.06 statute you are not going to court over it.

The "Doctrine of Presumptive Repeal" is a legal doctrine recognized in every state. It's in case law, not black letter law.

There is a conflict between TPC §30.06 and TPC §30.06, if the sole reason a person is excluded from property is because they are an armed CHL. TPC §30.06 provides the only way to exclude an armed CHL, if the gun is the reason for exclusion. TPC §30.06(e) removes the ability for a governmental agency or unit of local government to utilize TPC §30.06.

I think I see the root of our difference of opinion. TPC §30.05 can be used to exclude an armed CHL, if there is a reason other than the gun for excluding them from the property. §30.05(f) is included to give a CHL a defense to prosecution if he/she can show that the reason the property owner had them arrested was solely because they were an armed CHL. This is purely theoretical because you and I know it would not happen this way in the real world. If a property owner calls the police about a trespasser, the LEO is going to ask property owner to tell the trespasser to leave and he will make the arrest only if they fail to leave. If the property owner mentions anything about "no guns" then effective notice under TPC §30.06 has been given. If the property owner doesn't mention guns, but perhaps points to a generic (a/k/a §30.05 sign), the alleged trespasser doesn't leave and the arrest is made, he/she can use TPC §30.05(f) to defend against the charge because the requirements of TPC §30.06 were not met.

Again, this is theoretical because it would never happen this way. This is especially true for governmental property open to the public. If an employee calls a LEO to make an arrest for trespass, the LEO is going to ask why a person is being excluded from governmental property open to the public (at least he/she better ask). When the answer is "he has a gun" and the employee points to the §30.06 sign, the LEO cannot make a good faith arrest.

You're new to the Board, so you probably aren't aware of my background. I was a COP for many years and I'm not the least bit anti-LEO.

Chas.

jyatesmp wrote:Where does it say "30.05 doesn't apply to a CHL, if the only reason for exclusion is the fact that the CHL is armed."?

It's called the doctrine of presumptive repeal. Also, in statutes, "the specific controls over the general." When TPC §30.06 was enacted, it provides the only means by which a CHL can be prosecuted for criminal trespass, if the reason they were excluded was the fact that they were armed. You are a peace officer and are you telling us you have never heard this either in the academy or any of your 40 in-service courses?

The section you referenced (§30.05(i)) was added so that no peace officer could ever be excluded from any property in the state, even private property,even when they are off duty. (What an absurd law!)

Chas.

Edited to add: I left out fatal conflicts between statutes. If two statutes are in conflict, the later passed statues controls.

jyatesmp wrote:Yes you can get arrested for it.

Yes you can go to jail for it.

You bring up your Defense to Prosecution up in a Court of Law and a judge or jury decides if you were wrong or not.

Yes, you can get arrested and the officer and his/her agency can get sued under §1983. An officer is immune from civil liability only for a "good faith arrest." However, an officer cannot make a "good faith arrest" for that which is not illegal. As pointed out by Keith, TPC §30.05 doesn't apply to a CHL, if the only reason for exclusion is the fact that the CHL is armed. This is not a defense to prosecution, it's the black letter law, so a good faith arrest cannot be made under those circumstances.

TPC §30.06(e) expressly states that governmental agencies cannot use TPC §30.06 to exclude armed CHL's, so this too is not a defense to prosecution. Again a good faith arrest cannot be made under these circumstances.

Chas.

jyatesmp wrote:

mr fixit wrote:City of Mesquite TX, City Hall 1515 N. Galloway is posted with a 30.06 sign. The 30.06 sign was put up after the city ordinance barring concealed carry was struck down. There is no Police in this building.

Fire Marshals are in 1515 N. Galloway and are Law Enforcement Officers under Texas Code of Criminal Procedure - Article 2.12.

The only areas statutorily off-limits to armed CHL's are "jails." (Not every room with bars is a jail, most are holding cells so the agency doesn't have to meet jail standards.)

Even "Law Enforcement Facilities" are not off-limits. If a police dept. or sheriff's dept. (no other agencies) has a building that meets the requirements of Tex. Gov't Code 411.207(c) & (d), then a CHL can be disarmed while in the secure portion of the building. A CHL cannot be denied entrance and they cannot be required to leave the building to secure their weapon in their car.

The definition of a "law enforcement facility" is very narrow and strict compliance is required. Among the requirements are lock boxes for the CHL's gun and posting of required signage. Importantly, if there is one single person working in the building who is not employed by that police dept. or sheriff's dept., then the building is not a "law enforcement facility." This last requirement keeps many/most police and sheriff dept. building from qualifying, especially for small agencies. For example, many agencies have an office for "emergency management" in the building, or at least "emergency management" personnel working in the building. Since these folks aren't employed by the agency and aren't working solely on that agency's activities, the building is not a "law enforcement facility."

We made sure the definition was very narrow to keep it from being abused.

Chas.

Gov't Code §411.203 was/is a meaningless "feel good" provision that was necessary to get SB60 passed. The question was asked during debate whether an employer would have to right to prohibit his employees from carrying guns into/onto his property. The answer was yes, SB60 doesn't do away with that private property right, nor did it impact the employer/employee relationship, but some wanted to make sure that was clear in the statute. Therefore, §411.203 was added and it is nothing more than codified legislative intent.

§411.203 does not authorize an employer to prohibit a non-employee from carrying on their property. The only way to do that is TPC §30.06, or TPC §30.05 for non-CHL's. Government or "public" employers cannot use TPC §30.06, except in very limited circumstances, so they all they can control are employees and non-CHL's.

Chas.

SlowDave wrote:So, can someone educate me as to the proper office to contact with regards to these issues for city and county owned property? I'm not looking for names, but general titles, like "City Attorney" or "County Sherrif" or something like that.

Thanks in advance!

I'll send an open records request to Bexar County. This should prove interesting.

Chas.

When I use an Open Records Request on this type of issue, I don't ask for records authorizing the posting of a 30.06 sign. Governmental agencies don't need authorization to post. I ask for records indicating 1) the signs are enforceable; 2) the signs are not enforceable; and 3) any deliberations by the governing body as to the motive and goals for posting the signs.

Chas.

anygunanywhere wrote:I like the idea of using these information requests to expose these acts of infringement.

Can some of these public records be posted here so we can see the results of these efforts? Expose the infringers for who they are?

Anygun

Yes. I can activate the attachment feature. There is also another way to do this and I'm working on it now.

Chas.