thetexan wrote:
It doesn't matter what the Legislature INTENDED 30.05 to be. 30.05 is what it is...now. It is not a criminal enforcement mechanism (at least the way I think you mean that term). It is a owner's notification mechanism describing how he may notify persons of his withholding of entry consent....for...wait for it....here it comes......ANY REASON WHATSOEVER...TRIVIAL OR SIGNIFICANT, THAT PLEASES THE OWNER. As stated earlier, ANY REASON WHATSOEVER, does not equate to whether or not the reason is lawful. 30.05 is simply the means used to notify of the restriction. Whether or not specific conduct is at issue in the reason for the restriction is a different but related point.
If I post a sign stating NO SMOKING then I, the owner, am laying down a rule of conduct that is the condition for staying on my property. If you come onto my property and smoke in violation of the condition then I will then require you to leave. It is that oral demand to leave (which is prompted by your refusal to comply with my rules) that begins the trespass process. At the point of the oral demand, then you must leave or be in violation of trespass. It was not your smoking that caused your to trespass, indeed you were not trespassing. It is my demand that you now leave that sets the stage for the trespass if you do not now leave. This was a two stage event, violation of my conditions of entry and remaining, followed by my demand that you leave (and it really doesn't matter why I ask you to leave...I may not like your earrings...) and your requirement to do so under threat of 30.05 trespass.
This is different from me posting a sign that says ANYONE WHO IS A SMOKER MAY NOT ENTER. This is a sign restricting access to a group of people...and the reason for it....that you are a smoker....is immaterial. All smokers have been 30.05 notified and thus sets the stage for tresspass if the prohibition is violated.
WHETHER OR NOT IT IS LAWFUL TO RESTRICT SMOKERS IS IMMATERIAL TO 30.05. 30.05 doesn't care! 30.05 doesn't ask if it's fair, or if you are really a nice person, or even if it's lawful. 30.05 says "that's not my job to challenge the owner's reasoning...take that up with the court by filing a discrimination suit....But until you do, I am going to notify all persons that smokers are not allowed."
This is where I think the confusion is with prohibition of conduct and prohibition of persons is. 30.05 discusses withholding entry TO PERSONS based on withheld consent, period. In fact, it even provided exceptions BASED ON CONDUCT! Police officers in the official conduct of their duty (conduct) are exempted. This implies that the reverse of that conduct (that they are not in the official conduct of their duties) puts even them under 30.05's authority.
Then it should be very straightforward for you to find cases in the public record wherein someone has been convicted for trespass when passing a "sign" setting specific conditions upon entry/remaining on the property---without having been subsequently notified orally or in writing.
30.05 DOES NOT DISCUSS withholding entry to persons based on withheld consent that is subject to arbitrary conditions, particularly, when that consent has already been granted by the nature of the property (store open to the public). Or maybe it does and I just missed it in the statute. Since that is nowhere near clear in the plain language of the law, I surmised that there must be AG opinions or case law dealing with such situations. The "intent" of the legislature figured prominently in the DM-363 and was the basis of the common cited opinion that a sign prohibiting concealed carry invoke criminal trespass FOR CONCEALED HANDGUN LICENSEE's using 30.05. I'm not aware of any other AG opinions or cases relating to other conditions of entry prohibited by "sign". For LTC's the issue has been moot since 1997, when PC 30.06 was added.
So when people continue to state 30.05 establishes a blanket criminalization of any activity on private property, however trivial or unnoticeable, by virtue of a sign or single written notice, I ask them to point to the cases that support this or the legislative history of PC 30.05, or AG opinions dealing with it, SINCE IT IS FAR FROM CLEAR IN THE PLAIN LANGUAGE OF THE STATUTE.
I then submit hypothetical examples of conduct that I doubt 30.05 is intended to address, that COULD have written notice given in advance, and ask for the reasoning supporting a criminal prosecution based on case law or judicial decisions.
-Pay the rent late after being warned in the written lease and orally that permission to be on the property is conditional on paying on time...boom class b for you, without the trouble of filing 30 day notice of eviction...
-Wear a thong under your pants after passing a clearly worded "No Thong" sign on a store entrance? Proprietor subsequently sees your whale tail peaking out from under the trousers and has you immediately arrested for a class B.
-Pass a No Aggies sign on the door of your Long Horn buddy's house when he invites you over. But he didn't know you were an Aggie when he invited you to watch the game, yet you disrespected his written warning "no aggies sign" and came in anyway. When wife tells him you're an Aggie, he surreptitiously phones 911 and Sheriff hauls you of for 30.05.
-Clock in late when you signed the employee code of conduct saying that your entry on your employers property was conditional on you arriving on-time and performing your work in the manner directed by your supervisor. Subsequently, time cards are audited and the boss has you arrested for a class B for clocking in late. That's the plain language of the 30.05 statute, right? My supposition that that could not have been the intent or interpretation of the statute, notwithstanding.
We amended TPC §30.05 in 2003 as part of SB501 that stripped governmental entities and agencies of the ability to use TPC §30.06 to render government property off-limits to CHLs.
