another 30.06 question

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C-dub
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Re: another 30.06 question

Postby C-dub » Tue Aug 15, 2017 7:26 am

ScottDLS wrote:
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.

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thetexan
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Re: another 30.06 question

Postby thetexan » Fri Sep 15, 2017 1:42 pm

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
Last edited by thetexan on Fri Sep 15, 2017 2:47 pm, edited 3 times in total.
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Re: another 30.06 question

Postby CZp10 » Fri Sep 15, 2017 2:06 pm

I see what you are saying about 30.05, but I think many people believe that it is ridiculous to have possible criminal penalties and consequences for a person who is acting completely lawfully and enters a location freely open to the public. There are many places in Texas and other state’s laws that have civil penalties for such things as walking past a sign into a public establishment. My complaint is that it should be a fine and civil issue if a concealed carry person leaves when asked, and only a criminal offense when they don’t leave.

There are others who would argue that a location open to the general public is not the same as a private business location or someone’s home. Being open to the public and choosing not to provide a serious level of security for your patrons in order for you to make more money, might not give you the right to withhold a person’s constitutional right to bear arms.

However, at this point I don’t see any business owner with a 30.06 sign being able to actually prove, in a court of law, that the concealed carry person would not volunteer in an emergency situation. Until there is an actual court challenge to HB 435 I don’t see how 30.06 signs really mean much anymore.


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Re: another 30.06 question

Postby thetexan » Fri Sep 15, 2017 2:26 pm

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
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Re: another 30.06 question

Postby ScottDLS » Fri Sep 15, 2017 3:03 pm

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.
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Re: another 30.06 question

Postby thetexan » Fri Sep 15, 2017 3:32 pm

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
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Re: another 30.06 question

Postby ScottDLS » Fri Sep 15, 2017 4:09 pm

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:
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Re: another 30.06 question

Postby KLB » Fri Sep 15, 2017 5:09 pm

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. "[I am] 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.

All that said, I don't disagree so much with the previous comment as with the spirit that seems to be behind it. If you follow the governing statutes in a spirit of cooperation and compliance, you're less likely to run into trouble. Guiding your conduct prospectively by an extremely fine parsing, on the other hand, may get you in trouble. The time for fine parsing of statutory language is during a prosecution. Then you try to make law because you have to.


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Re: another 30.06 question

Postby thetexan » Fri Sep 15, 2017 5:18 pm

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

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Re: another 30.06 question

Postby ScottDLS » Fri Sep 15, 2017 5:37 pm

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. "[I am] 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:
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Re: another 30.06 question

Postby ScottDLS » Fri Sep 15, 2017 5:42 pm

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.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"


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Re: another 30.06 question

Postby thetexan » Fri Sep 15, 2017 6:12 pm

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
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Re: another 30.06 question

Postby Soccerdad1995 » Mon Sep 18, 2017 1:32 pm

ScottDLS wrote:
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.


:iagree:

To me, a sign saying "no weapons" is telling me that the place does not have (or sell) weapons. The selling of weapons is legal, and I would naturally assume that most places might sell some type of weapon, even if it is just a small pocket knife, so the sign is alerting me that they are all out at the moment. It's similar to a gas station posting a sign saying "no gas" or a hotel posting a sign saying "no vacancy".
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Re: another 30.06 question

Postby MechAg94 » Mon Sep 18, 2017 1:42 pm

Perhaps I missed it in the preceding pages I didn't read, but has anyone ever been prosecuted for carrying in a premises covered by a 30.06 sign?


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Re: another 30.06 question

Postby CZp10 » Mon Sep 18, 2017 4:35 pm

MechAg94 wrote:Perhaps I missed it in the preceding pages I didn't read, but has anyone ever been prosecuted for carrying in a premises covered by a 30.06 sign?

I searched the interweb, and can’t find one, but I don’t have access to criminal records.
I know of people who have been asked to leave, but don’t know of any who were arrested even though they left.


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