TexasCHLforum.com

(Spun off from http://www.texasshooting.com/TexasCHL_F ... 92&t=21374)

Charles L. Cotton wrote:I know what you are getting at, but they don't have to address TPC §46.035, if the goal is to legalize unlicensed open-carry. TPC §46.035(a) only applies when one is carrying pursuant to the authority of a their CHL. If unlicensed open-carry becomes legal, then a CHL would only be carrying pursuant to his/her cHL when they decide to carry concealed. TPC §46.035(a) would effectively be repealed, though not expressly so.

Does that mean parking lots posted 30.06 are fair game since the Motorist Protection Act passed as long as the handgun stays in the car?

Sec. 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

I split this post into a new topic so we could keep the open-carry bill discussion separate.

This is a tough issue and would be an excellent law school exam. The short answer is I cannot give a clear cut answer, but here are the issues. As you noted, TPC §30.06 applies only to a CHL carrying under the authority of their CHL. If you are not carrying under the authority of your CHL, as with the Motorist Protection Act or with the gun in the trunk, then arguably TPC §30.06 doesn't apply to a CHL with a gun in their car in a parking lot.

But if you are not carrying under the authority of your CHL, then TPC §30.05 becomes a problem. §30.05 cannot be used to prosecute a person carrying under the authority of their CHL, if the sole reason for exclusion is the presence of a handgun. (See TPC §30.05(f)(1)&(2) below.) But if you aren't carrying under the authority of your CHL, then you could be prosecuted under TPC §30.05, if you had notice and if the gun was on or about your person. (The gun is "on or about your person" if it's anywhere in the passenger compartment, but not in the trunk.)

The question then becomes "does a TPC §30.06 sign also serve as notice under TPC §30.05?" I don't know the answer to this question and I don't know if there any case law on this issue. A 30.06 sign expressly references TPC §30.06 as the basis for excluding the person, so an argument could be made that 30.05 is not being triggered. However, TPC §30.05 does not require any special language; only that the person be given notice that entry is forbidden. Arguably, a 30.06 sign gives such notice.

So I don't believe there is a clear answer to your question; that's why it's a great law school question! (Professors like to see students give a full analysis of the issues.)

Chas.

TPC §30.05 wrote:Sec. 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;

(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;

(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.

Thanks Chas. It sounds like it could go either way even if there's 100% agreement on the facts of the case.

From a practical standpoint, I have never seen a posted parking lot although I'm sure they exist somewhere. And the odds of a peace officer searching my car are very low. But I was curious about the reach of "under the authority of Subchapter H, Chapter 411, Government Code" especially after your comment in the other topic. It seemed to contradict previous remarks by others that someone with a CHL is always carrying under that authority.

I noticed a school parking lot posted (forget the name of the school) on College St between 45 & hwy 3.

No longer valid

My HS football coach's brother got searched on his way to Padre because he had his CHL on him but not the gun. He didn't show the license, since he wasn't carrying, and when it came up on the TDL check the officer searched his vehicle (and I quote) "for the gun".

The officer even told him to open the tool box, which was locked, in the bed of the truck.

Fangs wrote:My HS football coach's brother got searched on his way to Padre because he had his CHL on him but not the gun. He didn't show the license, since he wasn't carrying, and when it came up on the TDL check the officer searched his vehicle (and I quote) "for the gun".

Why don't we sue when this kind of thing happens? Is there any legal recourse when we are subjected to an unlawful detention and search?

mr.72 wrote:

Fangs wrote:My HS football coach's brother got searched on his way to Padre because he had his CHL on him but not the gun. He didn't show the license, since he wasn't carrying, and when it came up on the TDL check the officer searched his vehicle (and I quote) "for the gun".

Why don't we sue when this kind of thing happens? Is there any legal recourse when we are subjected to an unlawful detention and search?

There is legal recourse, but it is a very costly proposition. Most people do not want the stress and financial burdens associated with filing and persuing a lawsuit, especially when the outcome is not assured and the settlement potential is small. Most government agencies have much more money and time than a wronged citizen.

This scenario is an argument for those who always show their CHL's whether carrying or not...

mr.72 wrote:

Fangs wrote:My HS football coach's brother got searched on his way to Padre because he had his CHL on him but not the gun. He didn't show the license, since he wasn't carrying, and when it came up on the TDL check the officer searched his vehicle (and I quote) "for the gun".

Why don't we sue when this kind of thing happens? Is there any legal recourse when we are subjected to an unlawful detention and search?

One of the problems with suing is that there must be a harm for you to recover from. While I see the right's infringement as significant and a harm, most courts do not see it the same way. Without a harm to be made right, it is very hard to sue, and without the chance of a relatively large award, it is even harder to get a lawyer to handle the case. BTW, this is not a slam on lawyers, they have to spend a lot of time in preparing and filing the case and should be compensated.

If you want to spend the money out of your pocket, you can usually get the lawyer to file the case. But it rarely makes sense to spend $20,000 on a case where you might win just an apology and a promise to never do it again.

boomerang wrote:...From a practical standpoint, I have never seen a posted parking lot although I'm sure they exist somewhere. And the odds of a peace officer searching my car are very low. But I was curious about the reach of "under the authority of Subchapter H, Chapter 411, Government Code" especially after your comment in the other topic. It seemed to contradict previous remarks by others that someone with a CHL is always carrying under that authority.

Texas Instruments on Banner Drive in north Dallas has a 30.06 posted lot.

Abraham wrote:This scenario is an argument for those who always show their CHL's whether carrying or not...

It is also an argument for denying a law enforcement officer permission to search your vehicle.
If they have probable cause (which, having a CHL, but not presenting it since you dont have the gun on you) wouldn't be probable cause.

If you gave the LEO permission to search, you wouldn't have recourse. The best bet is to tell the LEO "I don't give you permission to search my vehicle, sir."
If he's got PC, he doesn't need your permission.

Fangs wrote:My HS football coach's brother got searched on his way to Padre because he had his CHL on him but not the gun. He didn't show the license, since he wasn't carrying, and when it came up on the TDL check the officer searched his vehicle (and I quote) "for the gun".

The officer even told him to open the tool box, which was locked, in the bed of the truck.

I say a letter or call to the officer's supervisor is in order. You should determine if this is department policy or if the officer is out of line. The response from the supervisor would dictate if I took it up the chain any further.

INAL but, Having a CHL is not probable cause for a search.

Locksmith wrote:

boomerang
And the odds of a peace officer searching my car are very low.

I would hope that none of us would give a police officer permission to search our vehicles...

I know I wouldn't!

I support the Fourth Amendment too!

elwood blooz wrote:I noticed a school parking lot posted (forget the name of the school) on College St between 45 & hwy 3.

Is this a private school? If not the school cannot give effective notice under 30.06 and the sign is unenforcable.