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Does 30.06 trump 46.15 [b] (3), or vice-versa?
Posted: Fri Aug 04, 2006 10:23 pm
by Renegade
Remember this one?
http://www.texasshooting.com/TexasCHL_F ... highlight=
Time for a new one.
If while driving and carrying under CHL, and you are about to enter a parking lot posted 30.06, are you exempt if you meet 46.15
(3) and its presumptions? What rule of law governs?
If you say no,
How about I am a passenger in a car and am carrying via CHL. Driver has no CHL but meets traveling presumptions. We are about to enter 30.06 parking lot, I give him gun and he conceals on or about his person, and also meets all other presumptions. Is he legal? What about me?
I say nowhere in law does it say a CHL is precluded from 46.15 (3) coverage, so you are OK.
Posted: Sat Aug 05, 2006 2:43 am
by KBCraig
There you go, thinking like a defense lawyer!
I don't have an answer, but neither does anyone else. That's the way it happens with the law of unintended consequences.
Kevin
Posted: Sat Aug 05, 2006 9:21 am
by Charles L. Cotton
Renegade wrote:Time for a new one.
If while driving and carrying under CHL, and you are about to enter a parking lot posted 30.06, are you exempt if you meet 46.15(3) and its presumptions?
No, TPC §46.15(b)(3) "traveling" is a defense to a UCW charge under 46.02. It is no defense against a trespassing charge under either TPC §§30.05 or 30.06.
Renegade wrote:How about I am a passenger in a car and am carrying via CHL. Driver has no CHL but meets traveling presumptions. We are about to enter 30.06 parking lot, I give him gun and he conceals on or about his person, and also meets all other presumptions. Is he legal? What about me?
As noted above, "traveling" is not a defense to a criminal trespass charge. The answer to this scenario will lie in whether or not a 30.06 sign constitutes notice under TPC §30.05. Remember, 30.05 can be used to prosecute a non-CHL holder for entering property with a firearm, so long as the actor was given notice. Remember also that §30.05 does not require the notice to include any special language as does §30.06. So, will a 30.06 sign suffice as notice for 30.05? As Kevin said, I don’t know but arguing this as a defense to a criminal trespass charge would put one on the cutting edge of the law - that’s where most folks bleed to death. (Since a 30.06 sign makes it clear that the property owner doesn’t want guns on the property, I suspect it would be found to meet the notice standard of §30.05, but that’s just my take on it.)
Here's another wrinkle. If you as a CHL hand your pistol to your buddy who puts it in his belt and then tries to argue "traveling" as a defense to a trespass charge, both of you could possibly be charged with conspiracy to commit a criminal trespass. [This is stretching it a bit I admit, but be very careful working with someone in an attempt to circumvent criminal statutes.
Chas.
Posted: Sat Aug 05, 2006 9:46 am
by Renegade
I guess the crux is whether or not you are carrying under authority of CHL or not, which was what txinvestigator pointed out in the other thread, thus giving exemption to a LEO. If you are, then 30.06 still applies, if you are not, then 30.06 does not apply. It would be highly unusual for any court to rule a CHL has less carry rights than a non-CHL.
So far, I have only seen 2 places that post 30.06 at parking lots, and both are businesses a non-employee would not normally enter.
Posted: Sat Aug 05, 2006 12:07 pm
by txinvestigator
Charles L. Cotton wrote:Renegade wrote:Time for a new one.
If while driving and carrying under CHL, and you are about to enter a parking lot posted 30.06, are you exempt if you meet 46.15(3) and its presumptions?
No, TPC §46.15(b)(3) "traveling" is a defense to a UCW charge under 46.02. It is no defense against a trespassing charge under either TPC §§30.05 or 30.06.
Renegade wrote:How about I am a passenger in a car and am carrying via CHL. Driver has no CHL but meets traveling presumptions. We are about to enter 30.06 parking lot, I give him gun and he conceals on or about his person, and also meets all other presumptions. Is he legal? What about me?
As noted above, "traveling" is not a defense to a criminal trespass charge. The answer to this scenario will lie in whether or not a 30.06 sign constitutes notice under TPC §30.05. Remember, 30.05 can be used to prosecute a non-CHL holder for entering property with a firearm, so long as the actor was given notice. Remember also that §30.05 does not require the notice to include any special language as does §30.06. So, will a 30.06 sign suffice as notice for 30.05? As Kevin said, I don’t know but arguing this as a defense to a criminal trespass charge would put one on the cutting edge of the law - that’s where most folks bleed to death. (Since a 30.06 sign makes it clear that the property owner doesn’t want guns on the property, I suspect it would be found to meet the notice standard of §30.05, but that’s just my take on it.)
Here's another wrinkle. If you as a CHL hand your pistol to your buddy who puts it in his belt and then tries to argue "traveling" as a defense to a trespass charge, both of you could possibly be charged with conspiracy to commit a criminal trespass. [This is stretching it a bit I admit, but be very careful working with someone in an attempt to circumvent criminal statutes.
Chas.
Thanks for that answer Charles.
