30.06 Posting On Parking Lots

[Charles L. Cotton]

Okay, I’ve done a little research on the phrase “on or about the person� as it applies to 46.02 (not 30.05 or 30.06). The 1985 Texas Court of Criminal Appeals (the highest appellate court for criminal cases) decision in Christian v. State, 686 S.W.2d 930 (Tex. Crim. App. 1985) cited a 1968 case from that Court noting the following:


"Though the Legislature omitted the more specific receptacles enumerated in the old provision when it enacted § 46.02, this may be attributed to this Court's recognition that "on or about [the] person" extends to cover at least the interior of an automobile (emphasis added), see Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968), which is of course the chief mode of personal transportation in present day Texas.

Thus, while cases such as Bush v. State, supra, may be instructive in evaluating the sufficiency of the evidence in a prosecution under § 46.02, supra, they certainly cannot be said to "control" the issue of whether the evidence proved beyond a reasonable doubt that the accused was "carrying on or about his person" one of the weapons prohibited by the statute."

I cannot find any cases that have held a handgun in a trunk was carried “on or about the person,� but I had very little time to work in this and my research has not been exhaustive. There may be such a case and I simply have not found it, so no one should rely on this comment! My concern is a vague recollection from some years ago about a case that involved a pistol in a locked truck in a car that had access to the trunk from the back seat. (It is now very common for cars to have access to the trunk via a hatchway, or even a folding rear seat.) I believe the person was convicted, but I haven’t found the case. This may be because the case was not appealed, or simply because I have not researched long enough.

I have found another Texas Court of Criminal Appeals decision that at least implies that putting a handgun in the truck of a car would be sufficient to negate a prosecution for carrying a handgun “on or about his person.� In Smith v. State, 630 S.W.2d 948 (Tex. Cr. App. 1982), the Court stated in Footnote 2, “We find that the following words of the trial judge are most appropriate as to what course of action the appellant should have taken when he left Chambers Creek. ‘. . . if he didn’t want to go home, he should have at least put it (the pistol) in the truck of his car and locked it up . . .’� (Emphasis added.) Statements like these that are not a required part of the Court's decision are referred to as dicta and are not controlling. Such comments do give insight as to how the Court might view such an issue, if it were to be presented on an appeal.

I came very close to not posting the results of my very limited research (not more than 20 minutes) as I do not want anyone relying upon it to their detriment. However, I earlier stated that I would post the results of my research, so here it is; for whatever it is or is not worth.

Also, this research/analysis has nothing to do with criminal trespass laws under 30.05, so don’t cross a 30.05 sign with a gun in the trunk feeling these cases would provide a defense. They won’t!!

Kevin, you are correct, my earlier reference to 30.06 was ill-advised; I should have referenced only 30.05, with the likelihood that a 30.06 sign would suffice to invoke 30.05, if a person did not have the protection of his/her CHL. I apologize for the confusing reference.

Man, all this sounds way too much like a lawyer!

Regards,
Chas.

[GrillKing]

I think it's OK to be conservative in your interpretation of the law so long as you don't freak out on the law so much you start leaving your gun at the house. Laws arn't made for you to understand, they are made so people can go to court and argue about them.

I agree. By being conservative, I mean that if I see a "No Guns" sign, I'll ignore it as it clearly doesn't meet the legal requirements of 30.06. If I see a 30.06 sign at the entrance to a building (or on a parking lot), I'll respect that and not carry. If I see a 30.06 sign that has characters 7/8" tall instead of the required 1", I'll consider that a valid sign even though technically it isn't. Technically "doesn't meet the requirements" and going to jail are two different things and I personally don't want the hassle of arrest and all that goes with it (including $$$) to prove a point over 1/8" or "It wasn't also posted in Spanish" or similar. My personal view and risk level.

By the way, how do I quote another member and include their member name instead of the word "Quote"?

Thanks and thanks for all the great feedback and discussion. This is clearly the most informative and intelligent forum on this subject I have found. Thanks Charles and all other members.

[jimlongley]

By the way, how do I quote another member and include their member name instead of the word "Quote"?

See that "quote" cloud up in the right hand corner of the post? Click on that and your message will be populated with the entire text of that post, then you can edit the text and add what you want.

[GrillKing]

Thanks

[cxm]

IIRC, when you read the wording of a 30.06 notice it speaks only to concealed and CHL holders.

Because the working speaks to the CHL holder and concealed weapons, I don't see how it can be construed to be a notice under other sections of the PC.

Of course, so far as I know there has been no test case....

Chuck

I think txinvestigator answered the question. Even if a 30.06 sign does not apply to a handgun in the trunk, 30.05 does not require specific language and any sign that gets the "don't bring guns in here" message across will trigger 30.05.

Okay, that's what I thought we both meant. I allowed for a 30.06 sign invoking "no guns past this point", which would include long guns. But in this scenario it would be a 30.05 violation, not 30.06, since there is no "carrying" involved.

I asked for clarification because you opined that a handgun in the trunk is "carrying". I concede that it is a violation of 30.05 (based on any "no guns" sign, including 30.06). But I still have a certain amount of doubt, based on whether a 30.06 sign means "no guns", or "no concealed carry (including CHLs".

I wouldn't want to push the issue, though.

As CHL holders, we want the protection of our licenses to be as broad as possible. I would never concede that a handgun in the trunk is not covered by my CHL.

Remember, non-CHL defendants attempting to argue they were not "carrying" to avoid a conviction under 46.02 are in a markedly different position than a CHL wanting the broadest protection possible.

Okay, I admit you've got me stumped here, but I'm willing to listen to your reasoning. How is any handgun that you're not "carrying" affected by having, or not having, a CHL? (Other than the NICS bye, of course.)

If a CHL is arrested for DUI, but he had conscientiously secured his handgun in the trunk before drinking, would you still argue that it is "covered" by his CHL? In this case, it would be a detriment, not a protection.

I'm enjoying this forum for the different points of view than are found elsewhere. Thanks!

Kevin