Page 2 of 3
Posted: Wed Oct 10, 2007 10:28 am
by seamusTX
FWIW, my work situation is exactly the same, leased property, company policy and signage that do not conform to 30.06.
Let me restate what I said above: If your employer becomes aware that you have a weapon at work, and they call the cops, and you're still there when the cops arrive, you will almost certainly be arrested and lose your job.
You will probably not be convicted, but it will be small consolation.
- Jim
Posted: Wed Oct 10, 2007 10:45 am
by TX_Jim
I would think you could post a 30.06 on the portions you actually lease.
I highlighted the red part because LEOs are "licensed". I guess they are trying to ban LEOs from the bank too.
Handbook is meaningless for a CHL, and I doubt it is easily enforceable as law for a non-CHL. I doubt non-employees see the handbook so how would they know the rules? They would have to be caught, confronted, and not leave to get arrested I would think.
Also, I am unaware of any tresspassing case where a person was not offered the opportunity to leave a public place first, other than actually breaking into a place when it was not open to the public.
I suppose you are right...they could post inside the building were we actually lease but it is still a grey area in my mind because we have no apparent authority to act on behalf of the owner.
I for the rest I was referring to the employer/employee relationship. We take it that the policy is intended for employees only and that cusomter/vendors that visit the building could infact carry because they have not been given effective notice under 30.06. I think this is really stupid...perfect strangers can carry here but they do not trust the emplyees to carry.
We did have an incident not too long ago when jealous ex-wife/ex-girl friend who obtained unauthorized entry into the building (i don't know the details). As a result our company hired off duty LEOs (plain clothes and CC) to sit with the receptionist at the from desk for a few weeks.
Posted: Wed Oct 10, 2007 10:55 am
by Mithras61
Renegade wrote:TX_Jim wrote:Our company leases from a management company. We are not the only tenants in the building (we occupy about 2/3 of the building). Because of this and the fact that all maintenance and etc are done through the Property Management company I would assume that we do NOT have any authority to post 30.06 signs (and in fact none are posted).
That being said we do have a policy in our employee hand book forbidding the licensed or unlicensed carrying of firearms. It does not have the language specified in 30.06.
“FIREARMS AND WEAPONS
The Criminal Trespass Laws prohibit entry on property leased by the bank with a weapon without consent when notices are provided stating that weapons are strictly prohibited. Weapons are strictly prohibited on bank premises, and violation of this practice will subject the employee to disciplinary action up to and including termination of employment, as well as possible criminal prosecution. No concealed handguns, even if a license to carry one has been issued, are allowed on bank property.
A weapon shall include handguns as well as all firearms, illegal knives, clubs or other prohibited weapons as defined by law.”
According to 30.05, is this notice good enough to prosecute violators that do not have a CHL? I believe 30.06 exempts CHL from prosecution based on this language mostly because CHL are subject the specified language in 30.06. Is my understanding correct, when I say that as a CHL holder I can be fired based on the language above but not criminally prosecuted based on the language above? If the policy specifically used the 30.06 language then as a CHL holder I am subject to both termination and prosecution…correct?
I also think a lawyer could pick this apart as it talks about two different things…one leased property at the beginning and then just plain property. Also the word property is not defined. A few good things on our side; the parking lot is shared with other tenants and open to the public so it can not (or at least should not) be considered bank property. The other good thing is that two of the top three guys have CHLs. The mind set they share is that the parking lot/vehicle is ok to carry in but the building itself is off limits.
I would think you could post a 30.06 on the portions you actually lease.
I highlighted the
red part because LEOs are "licensed". I guess they are trying to ban LEOs from the bank too.
Handbook is meaningless for a CHL, and I doubt it is easily enforceable as law for a non-CHL. I doubt non-employees see the handbook so how would they know the rules? They would have to be caught, confronted, and not leave to get arrested I would think.
Also, I am unaware of any tresspassing case where a person was not offered the opportunity to leave a public place first, other than actually breaking into a place when it was not open to the public.
I agree, but be careful... if at any time during the new hire briefing or at any other time you aare told that handguns are not allowed, then you are subject to prosecution if you carry...
Posted: Wed Oct 10, 2007 10:59 am
by seamusTX
TX_Jim wrote:I suppose you are right...they could post inside the building were we actually lease but it is still a grey area in my mind because we have no apparent authority to act on behalf of the owner.
I suppose you're referring to this clause:
(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
Two of the rights of an owner are to exclude others from the property and allow others to enter the property. Those rights are passed on to the lessor, with some exceptions.
The cops aren't going to ask if premises are leased or anything like that when they're called for a "man with a gun" incident. They're going to assume that the person whose company ID matches the name on the door is in control of the premises.
TX_Jim wrote:I think this is really stupid...perfect strangers can carry here but they do not trust the emplyees to carry.
That is the flaw in all "no guns" signs, whether legally binding or not: anyone with bad intentions and no regard to the law can carry anywhere.
- Jim
Posted: Wed Oct 10, 2007 11:25 am
by TX_Jim
Quote:
(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
Two of the rights of an owner are to exclude others from the property and allow others to enter the property. Those rights are passed on to the lessor, with some exceptions.
I'm interested in those exceptions. Sort of off topic but in the same realm...recently my daughter got her first apartment. The apartment is not affiliated with any school but caters to college students and therefore rents "by the room." When I asked the leasing agent about firearms (i was considering giving my daughter a .38) she told me that firearms were stricly prohibited on the property. I looked at the entire lease agreement and commuinity policies and there was not any mention of weapons anywhere. I do not believe it was a simple oversite on their part as they took the time and energy to exclude just about every animal except cats and ankle biter dogs. As a leasee, and no documentation anywhere about firearms, and based on your statment about the rights of entry and exclusion are true, then she should be able to posses a firearm in her own leased apartment or exclude them if she wishes...correct?[/quote]
Posted: Wed Oct 10, 2007 11:49 am
by seamusTX
TX_Jim wrote:I'm interested in those exceptions.
Well, in general, the lessee cannot exclude the owner or his agents.
In the case of residential property, the lessee has the right to exclude or admit guests, but usually he cannot take in another long-term resident without permission from the owner.
In this case of public housing, the owners (government housing authorities) can exclude felons as guests and evict tenants who let them in.
Other restrictions, such as prohibiting children in a residence for the elderly, have been struck down in courts at least sometimes.
TX_Jim wrote:...recently my daughter got her first apartment. The apartment is not affiliated with any school but caters to college students and therefore rents "by the room." When I asked the leasing agent about firearms ... she told me that firearms were stricly prohibited on the property. I looked at the entire lease agreement and commuinity policies and there was not any mention of weapons anywhere.
A lease is a contract. With real estate, everything must be in writing. I would think that oral notice would not be binding.
However, if they want to throw your daughter out and change the locks, you're back to paying a lawyer to force them to let her back in.
But as they say, concealed means concealed.
P.S.: It's not clear to me whether your daughter has a lease, or this is an arrangement like a dormitory or hotel where she could be evicted without legal process.
- Jim
Posted: Wed Oct 10, 2007 12:46 pm
by frankie_the_yankee
TX_Jim wrote: Our company leases from a management company. We are not the only tenants in the building (we occupy about 2/3 of the building). Because of this and the fact that all maintenance and etc are done through the Property Management company I would assume that we do NOT have any authority to post 30.06 signs (and in fact none are posted).
Your company can post 30.06 signs on the part that it leases.
TX_Jim wrote: That being said we do have a policy in our employee hand book forbidding the licensed or unlicensed carrying of firearms. It does not have the language specified in 30.06.
“FIREARMS AND WEAPONS
The Criminal Trespass Laws prohibit entry on property leased by the bank with a weapon without consent when notices are provided stating that weapons are strictly prohibited. Weapons are strictly prohibited on bank premises, and violation of this practice will subject the employee to disciplinary action up to and including termination of employment, as well as possible criminal prosecution.
IANAL, but I do not believe that they could successfully prosecute a person (employee) who has a CHL with this wording.
TX_Jim wrote: No concealed handguns, even if a license to carry one has been issued, are allowed on bank property. A weapon shall include handguns as well as all firearms, illegal knives, clubs or other prohibited weapons as defined by law.�
According to 30.05, is this notice good enough to prosecute violators that do not have a CHL?
Possibly someone without a CHL who had a gun in their car could be prosecuted if found out. But as you point out below, the parking lot is a common area shared with other tennants, so the bank may not have the legal right to apply 30.05 there.
TX_Jim wrote: I believe 30.06 exempts CHL from prosecution based on this language mostly because CHL are subject the specified language in 30.06. Is my understanding correct, when I say that as a CHL holder I can be fired based on the language above but not criminally prosecuted based on the language above? If the policy specifically used the 30.06 language then as a CHL holder I am subject to both termination and prosecution…correct?
I believe so.
TX_Jim wrote: A few good things on our side; the parking lot is shared with other tenants and open to the public so it can not (or at least should not) be considered bank property.
Good point. The parking lot sounds more like a "common area" shared with other tennants - not bank property.
TX_Jim wrote: The other good thing is that two of the top three guys have CHLs. The mind set they share is that the parking lot/vehicle is ok to carry in but the building itself is off limits.
They probably have guns in their cars themselves.
Posted: Wed Oct 10, 2007 12:51 pm
by frankie_the_yankee
Renegade wrote:TX_Jim wrote: No concealed handguns, even if a license to carry one has been issued, are allowed on bank property.
I highlighted the
red part because LEOs are "licensed". I guess they are trying to ban LEOs from the bank too.
LEO's do not have "licenses to carry". They have "Peace Officers Commissions". Not the same thing by any means.
Now it's true that an LEO could obtain a CHL in addition to his Peace Officers Commission, but in doing so he doesn't give up any rights he has as a Licensed Peace Officer.
So no, they are
not trying to ban LEO's from the bank while carrying.
Posted: Wed Oct 10, 2007 12:56 pm
by frankie_the_yankee
TX_Jim wrote:[I'm interested in those exceptions. Sort of off topic but in the same realm...recently my daughter got her first apartment. The apartment is not affiliated with any school but caters to college students and therefore rents "by the room." When I asked the leasing agent about firearms (i was considering giving my daughter a .38) she told me that firearms were stricly prohibited on the property. I looked at the entire lease agreement and commuinity policies and there was not any mention of weapons anywhere.
The agent didn't know what she was talking about.
If there is nothing in writing in the lease agreement, it is OK to have guns there.
Posted: Wed Oct 10, 2007 1:12 pm
by TX_Jim
§ 30.05. CRIMINAL TRESPASS. (a) A person commits an
offense if he enters or remains on or in property, including an
aircraft or other vehicle, of another without effective consent or
he enters or remains in a building of another without effective
consent and he:
(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;
§ 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED
HANDGUN. (a) A license holder commits an offense if the license
holder:
(1) carries a handgun under the authority of
Subchapter H, Chapter 411, Government Code, on property of another
without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder
with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed
handgun was forbidden and failed to depart.
(b) For purposes of this section, a person receives notice
if the owner of the property or someone with apparent authority to
act for the owner provides notice to the person by oral or written
communication.
(c) In this section:
(1) "Entry" has the meaning assigned by Section
30.05(b).
(2) "License holder" has the meaning assigned by
Section 46.035(f).
(3) "Written communication" means:
(A) a card or other document on which is written
language identical to the following: "Pursuant to Section 30.06,
Penal Code (trespass by holder of license to carry a concealed
handgun), a person licensed under Subchapter H, Chapter 411,
Government Code (concealed handgun law), may not enter this
property with a concealed handgun"; or(B) a sign posted on the property that:
(i) includes the language described by
Paragraph
(A) in both English and Spanish;
(ii) appears in contrasting colors with
block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner
clearly visible to the public.
I am a little confused as to which part of the code applies to me a CHL holder. My understanding is that 30.05 is a general tresspass code for those who do NOT have a CHL and therefore company policy could be considered effective for prosecution for non-CHL holder employees.
For CHL holders 30.06 says that effective written notice must contain the specified language. Thefore the company policy may get me fired but would not rise to the level of written notification for prosecution purposes.
Am I wrong in looking at it this way?
Could it possibly mean that A CHL holder/employee could be prosecuted for simple tresspass based on the language but not prosecuted for tresspass by a licensee? Is that what you are saying? And that if the language had the 30.06 language then a CHL holder/employee could be prosecuted for tresspass by a licensee?
One offense being a class B misd (simple trespass). and the other a class A misd. (tresspass by a licensee).
Posted: Wed Oct 10, 2007 1:29 pm
by Renegade
frankie_the_yankee wrote:Renegade wrote:TX_Jim wrote: No concealed handguns, even if a license to carry one has been issued, are allowed on bank property.
I highlighted the
red part because LEOs are "licensed". I guess they are trying to ban LEOs from the bank too.
LEO's do not have "licenses to carry". They have "Peace Officers Commissions". Not the same thing by any means.
Some LEOs do have licenses to carry. I know several myself, but I digress. Anyway, never wrote they were them same. Not all Peace Officers are commissioned either. Note they wrote "No concealed handguns", and did not provide an exception for LEOs, thus as I said, "I guess they are trying to ban LEOs from the bank too".
Art. 2.12. WHO ARE PEACE OFFICERS. The following are peace officers:
(1) sheriffs, their deputies, and those reserve deputies who hold a
permanent peace officer license issued under chapter 1701, Occupations Code;
(2) constables, deputy constables, and those reserve deputy constables who hold a
permanent peace officer license issued under Chapter 1701, Occupations Code;
...
yada, yada, yada. Won't even bother getting into all the other types of LEOs that are licensed - Federal, Deputiized, etc.
Posted: Wed Oct 10, 2007 1:33 pm
by seamusTX
TX_Jim wrote:For CHL holders 30.06 says that effective written notice must contain the specified language. Thefore the company policy may get me fired but would not rise to the level of written notification for prosecution purposes.
Am I wrong in looking at it this way?
Your understanding of the law is correct.
What I keep saying is that if the owner or manager of the property calls the police, they may not (probably will not) understand 30.06 and they probably will arrest you.
What's the scenario in which your employer finds that you are armed, hypothetically?
- Jim
Posted: Wed Oct 10, 2007 1:44 pm
by Mithras61
TX_Jim wrote:I am a little confused as to which part of the code applies to me a CHL holder. My understanding is that 30.05 is a general tresspass code for those who do NOT have a CHL and therefore company policy could be considered effective for prosecution for non-CHL holder employees.
For CHL holders 30.06 says that effective written notice must contain the specified language. Thefore the company policy may get me fired but would not rise to the level of written notification for prosecution purposes.
Am I wrong in looking at it this way?
Could it possibly mean that A CHL holder/employee could be prosecuted for simple tresspass based on the language but not prosecuted for tresspass by a licensee? Is that what you are saying? And that if the language had the 30.06 language then a CHL holder/employee could be prosecuted for tresspass by a licensee?
One offense being a class B misd (simple trespass). and the other a class A misd. (tresspass by a licensee).
There's more to § 30.05 than what you posted. Look at (f) below (highlighted in red):
§ 30.05. CRIMINAL TRESPASS. (a) A person commits an
offense if he enters or remains on or in property, including an
aircraft or other vehicle, of another without effective consent or
he enters or remains in a building of another without effective
consent and he:
...(removed to make it more readable)...
(f) It is a defense to prosecution under this section that:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and
(2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.
Firstly, IANAL, nor do I play one on TV, nor did I sleep at a Holiday Inn Express...
So if the
basis of their claim that you're trespassing is that you have a handgun, and
THEY DON'T HAVE THE AUTHORITY to ask you to leave on behalf of the property owner (see sec. 30.06 for specifics), they can't have you charged with trespass
IF YOU HAVE A CHL, and
IF THE PROPERTY IS NOT POSTED in accordance with Sec. 30.06.
Be careful, though, because if the basis of their claim that you're trespassing doesn't have anything to do with your handgun/CHL, you can still be charged under 30.05. The pre-emption by 30.06 is based solely in their claim that you're trespassing because you have a handgun when the property is not posted and they don't have the authority to act on behalf of the property owner.
Based on my understanding of this, an example (admittedly a poor one) of the latter situation might be that you go to a store that is not posted in accordance with 30.06 and a sales clerk at the store says "Oh, we don't sell to people with a handgun." and then tries to have you charged for trespass. The sales clerk doesn't have the apparent authority to act on behalf of the owner in this regard (the store manager would, though), and the basis of the trespass claim is that you have a handgun.
If on the other hand, you go into a non-posted store while carrying and a sales clerk tells you "I'm sorry, we aren't open right now. You have to leave." and you refuse, then section 30.05 still applies (because it isn't based on you having the handgun), and you can be charged with trespass.
Posted: Wed Oct 10, 2007 1:51 pm
by Renegade
Mithras61 wrote:
Based on my understanding of this, an example (admittedly a poor one) of the latter situation might be that you go to a store that is not posted in accordance with 30.06 and a sales clerk at the store says "Oh, we don't sell to people with a handgun." and then tries to have you charged for trespass. The sales clerk doesn't have the apparent authority to act on behalf of the owner in this regard (the store manager would, though), and the basis of the trespass claim is that you have a handgun.
I would be real careful challenging any employee as not having the authority to prohibit firearms. Also, "Oh, we don't sell to people with a handgun", will most likely be followed up with something like, "Guns are prohibited here", and that is now 30.06 oral.
Posted: Wed Oct 10, 2007 1:51 pm
by TX_Jim
What's the scenario in which your employer finds that you are armed, hypothetically?
I am not sure, I do not carry in the building period. They would have to search my car. That being said, it would open a whole new discussion on consent to search and probable cause.
Suppose someone else was found to be carrying and to avoid termination or to bring as many people down with them or what ever, they tell managment about all the others who have a firearm in their vehicle. Do they conduct searches....do they get police involved to conduct searches? what laws would apply?
Possibly an anti-gunner over hears a conversation about guns or something and says something to management...
those would be the only situations i could think of.