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If there are Mall entrances from the external stores, and those entrances to the mall are not posted, then I think it is factually incorrect to say that all mall entrances are posted.C-dub wrote:And to take that a little bit further ... a mall has placed a large compliant sign at every MALL entrance, but individual department stores with external entrances have not posted any signs prohibiting handguns. The mall has done its part and IMHO, that meets the notification requirements. I don't like it, but I think it does.Soccerdad1995 wrote:And I agree that it comes down to whether the signage is "conspicuous". But the other part of that is that it posted conspicuously in a manner that is likely to come to the attention of the public (paraphrasing a bit). To take the mall example, if there are conspicuous signs posted at some, but not all, entrances. Yes there are "conspicuous" signs, but the property owner has knowingly placed them such that they are likely to not come to the attention of a large percentage of the public that visits that mall. Does this meet the posting requirement in the law?
And by the way...there are numerous appellate rulings that state that a person may withhold consent to enter onto his property for any reason...OR NO REASON AT ALL! (presuming that no state or federal discrimination statutes are violated).Soccerdad1995 wrote:
As you know, I disagree with the premise that is present in current law that a private property owner should be able to conditionally grant permission to enter based on whether someone is carrying an unseen inanimate object. I think that is causing a large part of the challenge here. I know that you have a different perspective on this point.
I don't think we disagree as much as it might seem at first glance. For me, it's not all that difficult. If you don't want anyone bothering you, put up a sign that says "no trespassing". No business would go that route if they actually wanted to sell anything, so that applies more to non-commercial property.thetexan wrote:And by the way...there are numerous appellate rulings that state that a person may withhold consent to enter onto his property for any reason...OR NO REASON AT ALL! (presuming that no state or federal discrimination statutes are violated).Soccerdad1995 wrote:
As you know, I disagree with the premise that is present in current law that a private property owner should be able to conditionally grant permission to enter based on whether someone is carrying an unseen inanimate object. I think that is causing a large part of the challenge here. I know that you have a different perspective on this point.
Your point, I think, is this...Under the above an owner could stop anyone from entering is they are wearing red jock straps. Yes...but how do they practically and effectively enforce that? How does an owner actually stop people with red jock straps or red hats. The hats are easy, the straps are not.
The key here is whether or not you get caught. But whether or not you get caught you are in a legal state of violating the trespass law. IF YOU GET CAUGHT somehow then the owner has a tool to press charges, and in the case of 30.06/30.07 if you are subsequently asked to leave after having been caught in the act of a Class C criminal trespass, then, if you do not, and that can be shown at trial, it escalates to a Class A criminal trespass. But even if you leave when asked, you are still in violation of the original Class C trespass in the first place.
30.05 is a broad encompassing statute with a lot of teeth.
tex
To me, 30.05 quite clearly is a mechanism for barring people's entry to your property, or forcing them to depart after they have entered for any reason. As far as I have been able to tell, no one gets arrested for trespass in a publicly open location without first being asked to leave. In fact, it appears that the practice is for the property owner to call the police and have them issue a written no-trespass warning, so that THE NEXT TIME they take the person to jail.(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;
(D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(i) vertical lines of not less than eight
Absolutely correct. I failed to include those entrances or note that they are not posted. As far as 30.06 goes, those wouldn't need to be posted, but what about 30.07. I think they would require posting of 30.07 signs for the mall itself, but would then, of course not apply to the satellite department stores that don't post 30.07 signs. The question then becomes, would one win such a case if tested if the interior mall entrances were not 30.07 posted?Soccerdad1995 wrote:If there are Mall entrances from the external stores, and those entrances to the mall are not posted, then I think it is factually incorrect to say that all mall entrances are posted.C-dub wrote:And to take that a little bit further ... a mall has placed a large compliant sign at every MALL entrance, but individual department stores with external entrances have not posted any signs prohibiting handguns. The mall has done its part and IMHO, that meets the notification requirements. I don't like it, but I think it does.Soccerdad1995 wrote:And I agree that it comes down to whether the signage is "conspicuous". But the other part of that is that it posted conspicuously in a manner that is likely to come to the attention of the public (paraphrasing a bit). To take the mall example, if there are conspicuous signs posted at some, but not all, entrances. Yes there are "conspicuous" signs, but the property owner has knowingly placed them such that they are likely to not come to the attention of a large percentage of the public that visits that mall. Does this meet the posting requirement in the law?
I agree about the mall. Any code of conduct warning including "loud, aggressive, obnoxious behavior", "no clocking in late", "no deadbeats", No talking about Trump" do not have any actual prohibitive force. They merely inform you of what the owner won't tolerate. Some of the enumerated prohibited behaviors or conduct may very well be in violation of 42.01 DISORDERLY CONDUCT statutes but it is the statutes themselves that have legal weight and those statutes require no notice by signage to make effective the rule. These kinds of signs are essentially "reminding" people of what behaviors the owner won't tolerate and, with some behaviors, which are criminally disorderly. But none of these prohibit entrance onto the property (an essential requirement of 30.05), not because of the listed behaviors or conduct, but because of the construction of the language of the sign.ScottDLS wrote:
I have been trying to succinctly state this for 10 years....THANK YOU for saying what I have been trying and failing to say.
To your question about Memorial Mall. My contention is NO you are not guilty of 30.05 trespass without additional warning, since the mall is not posted NO TRESPASSING, or with purple paint marks, AND is clearly intended to be open to the public.
To me, 30.05 quite clearly is a mechanism for barring people's entry to your property, or forcing them to depart after they have entered for any reason. As far as I have been able to tell, no one gets arrested for trespass in a publicly open location without first being asked to leave. In fact, it appears that the practice is for the property owner to call the police and have them issue a written no-trespass warning, so that THE NEXT TIME they take the person to jail.(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;
(D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(i) vertical lines of not less than eight
Some say the Code of Conduct signs are warning that entry is forbidden (to persons engaging in the prohibited conduct), but no one is able to provide a real life an example of someone being prosecuted for it. There's a little better argument for a written code of conduct that a visitor or employee reads/signs, but even that is a stretch...
- No clocking in late....review the time cards and prosecute all your tardy employees for a class B.
- No deadbeats...prosecute all my tenants for class B violating their written lease by paying late.
- No talking about Trump....class B for you deplorables...
All of these could be put on a sign or in written notice, yet I think you'd be hard pressed to get a conviction, without an oral warning. Especially where there is no language specified in the law for barring specific conduct (like there IS in 30.06).
Made me think of this.thetexan wrote:This is straying from the original subject of conspicuousness and public visibility as it relates to the scope and associated legal effectiveness of 30.06 and 30.07 signs.
tex
Do you think you can get a conviction for the "Entry to Company Property is Prohibited to any Employee Clocking in Late" printed in my employee handbook and signed by my employees...in the absence of an additional warning?thetexan wrote:
...
However, if you decide to violate the warning about talking about Trump, or not wearing a shirt or shoes, or being obnoxious then the owner may exercise his right to require you to leave...for any reason or NO REASON AT ALL. He might not ever tell you why. At that point, you must leave or you will be committing trespass. Notice that this oral command to leave is not a subsequent request, as is being unintentionally (I'm sure) mischaracterized. It is the FIRST command to leave. In other words, violating a conduct or behavior warning does not create the trespass itself but gives the owner all the reason he needs (as if he needed any in the first place) to demand that the violator leave. Again, this is all notwithstanding that no discriminatory right is being violated in prohibiting entry. Don't let the right to free speech lead you to a wrong conclusion. I have a right to restrict speech in my home or on my property. If you choose to exercise your right to use vulgar language against my wishes on my property you may certainly do so. And I will certainly exercise my sovereign right to require you to leave.
The owner of any property may refuse entrance onto his property or require leaving his property as his whim for any reason or no reason at all absent violating any civil right statute. This is well established common and state law. But 30.05 is utterly clear how that must be done. The sign must indicate that entrance is forbidden. There is no "NO TRESPASS" language required in the statute. The language on the sign must simply indicate that entrance onto the property is forbidden. Any of these examples of signage meet the notification requirements of 30.05 and establish a entrance prohibition (assuming these can not be demonstrated to violate a federal or state civil rights statute) ...
"No persons wearing Washington Redskin hats may enter"
"No persons who have not paid their child support payments may enter" The prohibition is lawful, the ability to vet the person is impractical and thus probably impossible to realistically enforce.
"No persons wearing NRA T-shirts may enter."
"Persons not dressed in dinner tuxedos may not enter"
One you cross the entrance forbidding sign you are in a legal state of being in trespass and that trespass can be prosecuted by the owner and the legal system. The owner is even authorized under 9.41(a) "...in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property." The owner need not wait for the police; he may implement 9.41 if immediate necessity is called for.
There IS NO REQUIREMENT for a subsequent warning to leave for the intruder to be criminally trespassing once he has passed a compliant 30.05 sign. The crime is consummated at the initial forbidden entrance onto the property.
This has been discussed here before in detail and these following points have all been previously demonstrated as true...
1. That the owner of a property has a sovereign right recognized in common and state law to exclude the presence of any person on his property or to require them to leave his property for any reason or no reason at all, absent any infringement of federal or state discriminatory civil right statute, and that this is supported by numerous federal and state rulings.
2. That, in the presence of a compliant 30.05 sign, initial intrusion past the sign constitutes criminal trespass and may be enforced at that point both by 9.41 (done properly by statute) and by law enforcement.
3. That there is no requirement to subsequently warn the intruder to leave after the initial intrusion past the compliant sign in order to consummate the criminal trespass.
All persons reading this may educate themselves (if you are interested in the subject) by reviewing the following...
viewtopic.php?f=7&t=86589
https://www.texasattorneygeneral.gov/op ... dm0363.htm and all case law citations contained therein
This is straying from the original subject of conspicuousness and public visibility as it relates to the scope and associated legal effectiveness of 30.06 and 30.07 signs.
tex
ScottDLS wrote:
Do you think you can get a conviction for the "Entry to Company Property is Prohibited to any Employee Clocking in Late" printed in my employee handbook and signed by my employees...in the absence of an additional warning?
The employee has been notified per 30.05. The owner may restrict entry FOR ANY REASON OR NO REASON AT ALL. (read the case law I posted) Whether or not a conviction can be attained is immaterial as to whether or not the owner is within his rights to restrict access FOR ANY REASON OR NO REASON AT ALL.
How about "Lessee's entrance on to (my) property is prohibited if the rent has not been timely paid on the first of the month". - Class B saves me the trouble of going through eviction. I can just call the Sheriff...
Not if you have entered into a contract with the lessee that covers late payment. Also, state statutes on rental property and the lessor's and lessee's rights in rental agreements cover that.
How about "Entry to this store forbidden to Republicans"...can I be a Democrat, just for the time I enter? How many election cycles back must I go before I am considered a Democrat?
An owner can restrict access FOR ANY REASON OR NO REASON AT ALL as long as he does not violate discrimination statutes.
"TXPC 30.05: No one may enter this mall with a ballpoint pen". Could you get a class B conviction out of 30.05 if the pen was concealed in my pocket? Don't know and that is immaterial to the rights of the owner to restrict. Would I be committing a legal (or moral) offense by entering the mall with a pen? Legal? Yes. Moral? Depends on your morals. There's no doubt you could legally force anyone to leave once they've entered, but where is the line drawn for conduct that you are not even aware of, is completely innocuous, but you attempt to prohibit via a sign. I guess I just don't see the Penal Code applying. That's an easy one....Doesn't matter. You are in violation whether someone sees you or not. Let me ask a question. If you rob a bank and no one knows you are doing it...what does that have to do with the criminality of robbing a bank?
Does it really hang on the wording of the sign (No shirt, no shoes, no service...vs. Per Texas PC 30.05, You are forbidden to enter shirtless, or with a ballpoint pen.
My problem with your argument is that I don't believe that a sign or written document stating conditions of entry, however ludicrous, rises to the level of criminal trespass as defined by the statute. My contention is, signs or other written warnings are designed to indicate whether the property is generally open to entry or not. A store or mall is obviously intended to be open to entry. Putting up a sign that says otherwise based on a list of conditions to be met is a civil matter. Criminal statutes are meant to be interpreted in the LEAST restrictive manner possible.thetexan wrote:Again, another easy one. Maybe you haven't been keeping up with the discussion so here it is again.ScottDLS wrote:
Do you think you can get a conviction for the "Entry to Company Property is Prohibited to any Employee Clocking in Late" printed in my employee handbook and signed by my employees...in the absence of an additional warning?
The employee has been notified per 30.05. The owner may restrict entry FOR ANY REASON OR NO REASON AT ALL. (read the case law I posted) Whether or not a conviction can be attained is immaterial as to whether or not the owner is within his rights to restrict access FOR ANY REASON OR NO REASON AT ALL.
How about "Lessee's entrance on to (my) property is prohibited if the rent has not been timely paid on the first of the month". - Class B saves me the trouble of going through eviction. I can just call the Sheriff...
Not if you have entered into a contract with the lessee that covers late payment. Also, state statutes on rental property and the lessor's and lessee's rights in rental agreements cover that.
How about "Entry to this store forbidden to Republicans"...can I be a Democrat, just for the time I enter? How many election cycles back must I go before I am considered a Democrat?
An owner can restrict access FOR ANY REASON OR NO REASON AT ALL as long as he does not violate discrimination statutes.
"TXPC 30.05: No one may enter this mall with a ballpoint pen". Could you get a class B conviction out of 30.05 if the pen was concealed in my pocket? Don't know and that is immaterial to the rights of the owner to restrict. Would I be committing a legal (or moral) offense by entering the mall with a pen? Legal? Yes. Moral? Depends on your morals. There's no doubt you could legally force anyone to leave once they've entered, but where is the line drawn for conduct that you are not even aware of, is completely innocuous, but you attempt to prohibit via a sign. I guess I just don't see the Penal Code applying. That's an easy one....Doesn't matter. You are in violation whether someone sees you or not. Let me ask a question. If you rob a bank and no one knows you are doing it...what does that have to do with the criminality of robbing a bank?
Does it really hang on the wording of the sign (No shirt, no shoes, no service...vs. Per Texas PC 30.05, You are forbidden to enter shirtless, or with a ballpoint pen.
The Texas State Legislature says in 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: (a)(1)had notice that the entry was forbidden
(2) NOTICE MEANS (emphasis mine)(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;
You seem to have a problem with the state legislature, the attorney general, and the State Appellate courts.
Any reason or no reason at all. Say it with me........Any reason or no reason at all.
tex
State civil statutes and lease contracts cannot allow something that is a crime... What if I put it in my lease that it's a crime to enter my property after paying late? That's written notice (as you interpret the 30.05 statute), so it would be a crime to pay late (ANY REASON). Nothing in the 30.05 statute says otherwise.... Where does the Real Property statutes and civil code does it say lessee's are exempt from 30.05?How about "Lessee's entrance on to (my) property is prohibited if the rent has not been timely paid on the first of the month". - Class B saves me the trouble of going through eviction. I can just call the Sheriff...
Not if you have entered into a contract with the lessee that covers late payment. Also, state statutes on rental property and the lessor's and lessee's rights in rental agreements cover that.
You are arguing that passing No Entry w/ Ball Point Pens sign into a shopping mall or store is a criminal offense under 30.05. Robbing a bank is a crime in itself. Walking onto a posted "NO TRESPASSING" hunting lease is a crime in itself.....Doesn't matter. You are in violation whether someone sees you or not. Let me ask a question. If you rob a bank and no one knows you are doing it...what does that have to do with the criminality of robbing a bank?[/b][/color]
ScottDLS wrote:
My problem with your argument is that I don't believe that a sign or written document stating conditions of entry, however ludicrous, rises to the level of criminal trespass as defined by the statute.
My contention is, signs or other written warnings are designed to indicate whether the property is generally open to entry or not.
Your contention is a very general and broad brushed categorization of signs in general...that they are to warn GENERALLY whether entry to property is open or not. There is no legal basis for your belief and, in fact, the very expressed design of 30.06, and 30.06 is to restrict entry for a specific reason and this is mentioned in 30.05 (that, if the reason for not consenting to entry is because of a handgun then goto 30.06 and now 30.07 to accomplish that, 30.05(i).) In the case of 30.05, there is no specification that the language of the sign may or may not include the reason for the prohibition to entry, but only that the language indicate that entrance to the property is forbidden. Nothing in the statute prohibits the sign from stating the reason. In fact, if one could not specifically select the persons for whom the prohibition applies and was limited to a sign that said "NO TRESPASSING" then the owner could not exercise his right to restrict for any reason or no reason at all. He would not be able to keep out shirtless patrons (which is entirely his right) without keeping everyone out because his ability to discriminate via the language of the sign(in the general sense) would not exist. In any case there is no reading of the statute that suggests that there is any specification as to language other than the requirement that the sign indicates prohibition to entry.
A store or mall is obviously intended to be open to entry. Putting up a sign that says otherwise based on a list of conditions to be met is a civil matter.
No. It is a 30.05 matter which is criminal.
Criminal statutes are meant to be interpreted in the LEAST restrictive manner possible.
This assertion is false. Both criminal and civil statutes have precisely the force of law as specified PRECISELY in the language of the statute. You are confusing a canon of statutory interpretation used by and which is strictly the providence of the trial and appellate courts to administer. This doctrine states that when there are two readings or interpretations of a statute, one of which does violence to the constitution and creates constitutional issues and the other does not, that the later and less restrictive interpretation will be used. It is not you or I who apply this doctrine in our roles as end users and subjects to the law. It is the courts who apply the doctrine when deciding how the law will apply to you in any state action against you for violating that statute. 30.05 says precisely what the state legislators wanted it to say and the appellate courts give the legislators the great benefit of the doubt that they knew how to precisely construct whatever rule they wrote.
In my employee example...clocking in late...you've been warned in advance in writing that clocking in late means you can't enter the property (ANY REASON, right?).
Let's review...
You have been warned in advance to entry onto the property that if you clock in late you can not enter the property.....check
So your contention is that violating written employee policy, ...
Read "entered onto private property after having been warned"...
is criminally sanctionable?
It is not my contention. I merely state that 30.05 states in the clearest of language...(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
Was intended to be by the legislature, has been suggested to be by the AG, and has been held as such by appellate or lower courts? OK show me.
I have done so. You have made these arguments fruitlessly before in this thread...
viewtopic.php?f=7&t=86589
You should review it again thoroughly. Pay particular attention to the analysis of Charles Cotton.
In addition, I have provided you with all of the legal basis necessary to substantiate all of this with this link to the attorney general's analysis and opinion on the subject to an owner's right to restrict access ...
https://www.texasattorneygeneral.gov/op ... dm0363.htm
Instead of me doing more work to educate you why don't you take the time to study this opinion and READ AND STUDY ALL OF THE INCLUDED APPELLATE RULING CITATIONS. Then I would suggest that you frame your best arguments in the form of letter to the State Supreme Court and maybe they will see the light.
State civil statutes and lease contracts cannot allow something that is a crime... What if I put it in my lease that it's a crime to enter my property after paying late?How about "Lessee's entrance on to (my) property is prohibited if the rent has not been timely paid on the first of the month". - Class B saves me the trouble of going through eviction. I can just call the Sheriff...
Not if you have entered into a contract with the lessee that covers late payment. Also, state statutes on rental property and the lessor's and lessee's rights in rental agreements cover that.
Then that would violate the code that details how a landlord in the state of Texas may deal with non-paying lessees. You think, maybe, it would have been done by now if it was legal to do so?
That's written notice (as you interpret the 30.05 statute), (I am not interpreting anything. I am a messenger telling you what the words on the piece of paper say, as confirmed by the state attorney general and numerous state and federal appellate courts) so it would be a crime to pay late (ANY REASON). Nothing in the 30.05 statute says otherwise.... Where does the Real Property statutes and civil code does it say lessee's are exempt from 30.05?
You still don't see the distinction. It is not a crime to pay late (presumably in any other law). It is a crime to enter onto the property of an owner who tells you than you may not enter onto his property if you have paid late. As to the property statutes and possible conflict with tresspass code...this is not a major issue. These kinds of conflicts occur all of the time in law. In the final analysis, all applicable laws must be followed. One can not assert a right under 30.05 if, by doing so, he is violating another law. And, conversely, if he follows the property code and by doing so does not have the statutory right to apply 30.05 BY LAW, then he understands this when he endeavors to enter into the world of property leasing.
Ballpoint pen example.......Doesn't matter. You are in violation whether someone sees you or not. Let me ask a question. If you rob a bank and no one knows you are doing it...what does that have to do with the criminality of robbing a bank?[/b][/color]
You are arguing that passing No Entry w/ Ball Point Pens sign into a shopping mall or store is a criminal offense under 30.05.
You STILL don't see the distinction, do you. No, I am not making that argument. The criminal offense is entering onto the property of the mall after having been restricted from doing so by the owner of the property.
This is the offense set forth in 30.05. All that is required to implement 30.05 and prosecute violations AS PER THE PRECISE LANGUAGE OF 30.05 are....
1. That one enters onto or remains on the property of another
2. That there is no effective consent of the "another"
3. That one received notice that the entry was forbidden
4. That the notification consisted of either oral or written communication by the owner or someone with apparent authority to act for the owner, or,
5. That the notification was 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;
Robbing a bank is a crime in itself. Walking onto a posted "NO TRESPASSING" hunting lease is a crime in itself.
As is committing an offense under 30.05 if the elements of the statute are complied with.
Not meeting all the written rules and criteria posted on a store or company handbook is A CRIME?,
Who said that? I don't know. What are the written rules and criteria? Let's say that in the handbook it states that you may not smoke marijuana. Then violating that is a crime, but not because it is written in the handbook because the handbook has no legal authority, but because the behavior listed is illegal in and of itself under state criminal law.
But if the handbook states that persons may not possess pornography while at work and any employees who have pornography may not enter onto the property, then it is a criminal offense of trespass under 30.05 that that pornography carrying employee entered onto the owners property, under 30.05. Why, because the owner did not give the employee consent to enter onto his property. It is as elegantly simple as that.
even if the criteria are arbitrary and unnoticed and have no effect on the owner's use of the property? OK, show me the examples... In case law, in the legislation, in an AG opinion.
The key distinction here is THAT ENTRY WAS FORBIDDEN. Now you argue that placing conditions on entry, that state if those conditions are not met, you have been notified that entry was forbidden. You argue argue that the written communication of those conditions however ambiguous, arbitrary, or undetectable constitutes notice that ENTRY IS FORBIDDEN (to you).PC §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;
We disagree. You didn't take to heart the previous thread when Charles Cotton gave you his guidance and you essentially have reasserted all of the same arguments again.ScottDLS wrote:Texan -
I'm going to continue to say where I think you have missed the points that I raise. You say that you have sufficiently demonstrated that the wording of the 30.05 statute plainly criminalizes any entry to property after you have been warned in writing or by sign of ANY conditions for said entry.
I disagree that the plain wording of the statute says this.
The key distinction here is THAT ENTRY WAS FORBIDDEN. Now you argue that placing conditions on entry, that state if those conditions are not met, you have been notified that entry was forbidden. You argue argue that the written communication of those conditions however ambiguous, arbitrary, or undetectable constitutes notice that ENTRY IS FORBIDDEN (to you).PC §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;
"...commits an offense (a present tense wording...ie. you commit an offense WHEN...you HAD NOTICE (past tense) that entry WAS FORBIDDEN (past tense, ie you have committed an offense because you WERE notified (past tense.) Come on Scott. I'm going to do this one last time even though some of your logic is incredulous.
Then you say...except when the real property code, or non-discrimination/public accommodation statutes apply... None of which directly mention criminal trespass. In fact, a private residence owner has the right to exclude certain races/religions, etc. from his property.
My "no whitey" sign on my house, has the force of law even if I let in a person of pallor (only because they looked black) to me. They were concealing the fact they were Caucasian, despite being explicitly notified in writing that no Caucasians (or Aggies) were welcome in my sovereign abode.
So my argument is:
The trespass statute was not intended to provide property owners with the ability to set any conditions for entry, however arbitrary, and give them the force of criminal law, at the discretion of the owner.
You have no idea what the statute is intended to do other than the expressed words used to create the statute. It doesn't matter what the legislature intended to do. What we live by are the words in the statute.
It provides a means for owners to exclude persons without explicit permission (NO TRESPASSING), or eject them for any reason (get out of my house, no ball point pens or "whiteys" allowed).
Listen to yourself.....30.05 allows owners to exclude entry only in a general sense but the ejection part of the rule can be specific and for any reason or applicable to a specific person. The rule doesn't state that and you are inflicting that interpretation on the rule.
If property owners had the right to enforce all conditions of entry simply by placing them in a written format or sign and providing them to you in advance, then one would expect that we'd see some examples of where this has occurred in "real life".
What makes you think that we don't have literally thousands of examples of this around us everywhere. You have no idea what conditions persons are working or operating under all around you.
My employee handbook example...clocking in late, or talking back to the boss, or doing shoddy work is prohibited...all would be class B misdemeanors, because the handbook says your entry is predicated on following all the conditions in the handbook. This despite the fact that the owner let you into the business for the purpose of performing work, let you in even after you clocked in late, and didn't warn you to get out after your work was shoddy???
It would be a Class B if they violated those policies and they were associated with the owner's consent to entry. And the owner pressed charges. There is no reading of the statute that suggests otherwise...only your opinion of the way things should be, or ought to be, or what makes sense; all of which are irrelevant to what the statute actually states.
Or the mall personnel saw walk in to do some shopping but didn't notice that you had a concealed ball point pen and boxers (prohibited on the conspicuously posted sign, saying WELCOME TO THE MALL, entry forbidden to persons with boxers or carrying ball point pens).
It is not at all clear to me that the plain wording of 30.05 is meant to prohibit the above. You consistently state that I am ignoring evidence to the contrary, yet fail to provide examples.
The Morales opinion, while old, uses good analysis in the text. And he cites decades old cases as well as more current cases AND the library is filled with thousands of cases which rely on the Morales citations for their precedent. I have provided supporting evidence. Can you provide cases that refute those precedents.
I have provided examples (albeit apocryphal):
- Vagrants being ejected from stores with no entry except for customers, and no loitering signs, present, yet the police refusing to arrest until they first issue an explicit written TRESPASS warning to THAT specific individual.
- Other state courts holdings on similar statutes that they don't apply in public locations unless verbal notice subsequently provided (Florida, Oklahoma, Missouri).
Try federal case law which has more jurisdictional authority over our situation than those states. OH WAIT! Morales actually cites other states also! How about that!
- There is no exemption in 30.05 for on or off duty law enforcement officers (except with respect to carrying a weapon, added in 2003), so presumably a "NO COPS" sign or written policy has the force of law, and prior to 2003 a no guns sign had the force of law for police or anyone else not carrying under authority of CHL.
paragraph (i)(2)
You state that I'm ignoring evidence presented in other thread...
DM-363 - This only addresses carrying concealed handguns on private property. It is a 20+ year old opinion, never tested, and it became moot when it was explicitly addressed by PC 30.06 in 1997.
Ah, so you haven't actually read the opinion and the citations contained therein.
Example of individual being excluded from public rec center via 30.05 for "bad behavior".... Even if there were "no bad behavior signs" and other posted rules that he were violating, he was only excluded after being specifically told not to return.
Read the rulings and notice the scope of the rulings.
I am then suggest to "look up" the appellate decisions that contradict or at least refute my assertions, which I can't, because there aren't any.