TexasCHLforum.com

LDB415 wrote:

With this notification, the Alley Theatre is informing you that it prohibits firearms on its premises, and reserves the right to search persons, parcels and vehicles on same. This policy applies to all employees, patrons and visitors to the facility.

With this notification, the Alley Theatre is informing you that it does not want your patronage and does not care about your life, your rights, or your safety. With this notification, the Alley Theatre is informing you that it only wants your money. With this notification, the Alley Theatre is informing you that it considers you a chump if you patronize them knowing their position on your rights.

It's been a very long time since attending anything at the Alley. .

And...AND...The Alley Theater (assuming the notification does not meet 30.06 standards) has told me nothing. Im not interested in their written opinion on guns or the written prohibitions unless they comply with the law as written. Im interersted in seeing a movie. They can keep their prohibitive desires to themselves or else give me proper notice according to law. I wont boycott them because my desire to see the movie is greater than my desire to make a point, which probably wont be effectual anyway. I only disadvantage myself. However, if they were to properly notify then I would get the entire city to boycott if I could.

By the way, they may or may not have a right to reserve. Just because someone says they reserve the right doesn't in and of itself bestow upon them the right. The right must exist in order to reserve it. They may very well have a right to search being a private entity on their property, I'm not sure about that one. I'd have to research it. I believe that even though it is a private entity there is a limit to what they can do in a public setting, ie metal detectors, etc. Whether that means physical search I don't know....yet. But I will find out.

Let's assume they do not have the right. Then just because they say they reserve it doesn't create it. Especially when an assumed reserved right attempts to supersede any right that you do have, IF YOU INDEED HAVE A RIGHT THAT IS INFRINGED UPON (read that well). I always get tickled at the signs in the parking lot that says "we will not be held responsible for damage to vehicles parked in this parking lot". As if simply making that statement relieves them of responsibility for negligence on their part or other actionable causes. Yes, you will be held responsible for responsibilities that are yours. Oh...Yes... you will. If that weren't the case I'd put a sign in my front yard stating that 'I will not be responsible for any credit card bills that are delivered to this address.'

Let's assume the theater does have the right to search, then your problem is with the legislature that gives them that right. If we do not like someone exercising their LEGITIMATE rights then we can make our choices.

I would go to the movies (again assuming the improper notification) let them search then someone will have to say to me orally, please leave. NOW IVE BEEN PROPERLY NOTIFIED! Now, I will get my little army of boycotters together and see if we can effect change.

I would also be careful not to be guilty of disorderly conduct as I explain to the management my dissatisfaction as they are escorting me from the theater.

tex

txbirddog wrote:So someone that does not read English would not have been given notice???

Don't know, don't care. 30.06 apparently does not care, at least as far as cards or other documents. If an Hispanic gets arrested for having a gun at a movie, let's say, because he is carrying a gun after buying a ticket or being handed a card that has 30.06 language on it in English as prescribed, then he will be tried precisely as per 30.06. His lawyer can attempt a defense based on the fact that he doesn't speak English but will he win? Probably not. The first thing the court will want to know is what about the person from China, or Russia or any other country that doesn't speak the language. Did the legislature intend what it said and did it know how to say what it means? The fact that within the very same subsection the writers of the legislation clearly and distinctly separated the two methods of written communication, cards and other documents, and a sign, one without a Spanish requirement, the other with. The obvious question is why would they do that if it would have been so easy to include both in the same language construction. The obvious elephant in the room answer is that they deliberately intended it that way. Right or wrong, agree or disagree, that is the way the law is written and any non-English person is simply at a disadvantage and, perhaps, should learn English, especially if you are going to legally carry a gun. Which, by the way, that person would have had to sign an affidavit stating that he understood the rules pertaining to the rules governing CHL, among which includes an understanding that a card or other document does not include Spanish; an affidavit, I might add, that had to be read and understood in English.

In Federal Aviation Regulations, a pilot of a civil aircraft operating in United States Airspace must read and understand English to operate that aircraft. The FAA makes no allowances for non-English speakers.

The trial court is simply a finder of facts, which, once found, simply applies the law as the court understands they apply to those facts. To go to an appellate case, there would have to be a legitimate cause of appeal during the trial phase. When and if taken up the appellate court will consider those objections and consider only whether or not the law was applied correctly. During that consideration it may very well consider why the legislature thought it best to require signs to have Spanish but cards and other documents not. The appellate court's job, however, is to simply determine whether the law was correctly applied as to the points offered by the defense. The court will either strictly interpret the law and rule that it was a legitimate conviction or take an activist view and rewrite the law stating the cards and other docs must also have Spanish.

These what-ifs are fun for debate but generally don't have a real-life correlation in the courts. Unless of course you get an activist court, which the Texas appeals courts tend not to be.

tex

I mentioned in my post reply about Spanish only applying to signage.

As to communication...here is a good definition taken from USLegal.com regarding their definition of 'communication'.

The basic process of communication begins when a fact or idea is observed by one person. That person (the sender) may decide to translate the observation into a message, and then transmit the message through some communication medium to another person (the receiver). The receiver then must interpret the message and provide feedback to the sender indicating that the message has been understood and appropriate action taken.

I have always taught that communication consists of transmission and reception of a message and that communication has not taken place until both parts have been satisfied. But that is only my definition.

30.06 states ...
(3) "Written communication" means:
(A) a card or other document on which is written language identical to the following: "Pursuant to Section 30.06,
Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411,
Government Code (concealed handgun law), may not enter this property with a concealed handgun"; or
(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English and Spanish;
(ii) appears in contrasting colors with block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner clearly visible to the public.

According to this definition there appears to not be any requirement of confirmation that there has been reception, only that reception can be reasonably assumed if oral, written or signage communication is presented. There are lots of examples of this in other situations. Every time you buy a lottery ticket you accept the conditions printed on the back of the ticket.

There is no requirement that someone sit posted by each 30.06 sign and get you to sign a document stating that reception has occurred on your part. There is a reasonable assumption that if a sign is posted correctly then every reasonable thing has been done to ensure that you have received the 'transmission' and that communication can be reasonably assumed to have occurred; that the message has been received. This is true with trespassing signs, road signs, etc. It follows that the same reasonable assumption can be made if the form of notice transmission is by way of a card or written document. And that would apply to an oral notice. Must one acknowledge an oral notice by stating "oh, ok, I'll leave"? It seems that in the face of so many other examples (lottery ticket) where we receive notice of things and there is applied a reasonable assumption that reception of the message has taken place, that you would have to assume that the same process applies here.

Another example is where most states' codes allow for notification of certain legal declarations in the newspapers. The legislature realizes that it is impossible to get a confirmation for every notice (trespassing, lottery, road signs, newspaper notification of non-assumption of debt, etc), so it provides for a mechanism whereby a reasonable assumption of reception can be made from a reasonable effort to notify.

So, if in fact, the notice is on the back of the ticket to a movie you or your spouse purchased, I would assume you have been notified. And, by the way, I don't think the fact that your wife purchased and handled the tickets would be a defense. As to whether the notice itself meets the standards for identical language and therefore a true notice is dealt with in my previous post.

tex

LSL wrote:Houston Alley Theater has AN INCORRECTLY phrased 30.06 notice, in English only, printed on each ticket in tiny print. [EDITED 10:14 pm21 May - See my comment below]
THIS IS NOT sufficient NOR EFFECTIVE notice!
Does it also need to be printed in Spanish?

My opinion is that you would be arrested on the basis that you have received notice by way of notification in the form of a card or other document (ticket). You might be even convicted depending on the judge and his interpretation of the work 'identical'.

The statute is very specific, the notice must be written with specific language identical to the wording in the statute. Your basis for appeal would be that the language is not identical, if what you say is true about it being incorrectly phrased. Many times when the lawmakers intend for it to be similar to but not identical to they will state something like "...including substantially the same language..." or "similar to". I've seen examples of both.

The appellate court will certainly consider whether or not the state legislature knew how to say what they mean, whether the word 'identical' is superfluous, and if not why the court should not accept that identical means identical, and whether or not the miswritten language is a clerical error or actually incorrectly and non-identically written language. This is where the principle of 'de minimus' comes into play; a principle where the court disregards the issue due to it being a trivial, non-significant matter.

For example, I feel certain that an appellate court will find that the wording "...pursuant to section 30.60" is a clerical typographical error and de minimis. However, a sign similar to the one at Grapevine Mills Mall which states "...licensed under Article 4413 (29ee) revised statutes..." will likely be much more scrutinized in favor of the defendant since it is clearly antiquated in it's reference, and thus possibly signifying the sign is intentionally referring to the other rule. Who knows. However they could also take a de minimus attitude about that, although I think that is much less likely. My feeling is that when words and precise as 'identical' are used in statutory language and are interpreted under the current canons and tenets of statutory interpretation, that there is a heavy burden for the state to wiggle out of it. Otherwise 'identical' would lose its purpose in the wording and essentially any wording could suffice and we would have no standard for notice, and would be clearly antithetical to the intent of the legislature when they wrote the statute and included the word 'identical'.

The 30.06 statute regarding the specifications of cards, documents, or signs is written to the person serving notice as specification for the creation of the notice and to the person being served notice so that he can know what proper notice is so that he can know when he has, in fact, been served. The court would have to hold that rather than 'identical' language being required, that only 'substantially similar' language is required. With a word as precise and unambiguous as 'identical' that would be hard to justify especially at the appellate level where legality of process and application of law is what is tested. However there is plenty of case law where de minimus played a role in the rulings of the court. Try searching on some of those for plenty of interesting reading.

By the way, the requirement for Spanish only applies only to signage according to 30.06. And, I would think that 'identical' and 'Spanish' would hold equal weight as prima facie elements of the statute, in a case where improper wording or lack of wording is at issue.

tex