TexasCHLforum.com

Glockamolie wrote:My only problem with the wording of 30.05 is that the above is a defense to prosecution, but not an exemption.

That's a great way to put just enough fear in to a law-abiding CHL holder to not carry there. What a load of poop.

I understand your concern, but there is no way around it. TPC §30.05 can be used to keep anyone including a CHL from entering property. The only exception is excluding a CHL solely because he/she has a handgun; then the requirements of TPC §30.06 must be met.

For example, if a business owner wants to exclude anyone without shoes and a shirt from a business, he/she will use TPC §30.05 to do so and it doesn't matter if trespasser has a CHL or not. If the law simply said "30.05 doesn't apply to a CHL," then he wouldn't be able to enforce his proper attire requirement.

As for the affirmative defense issue, unless you have a blanket exception to a TPC provision, then there must be a method by which a determination can be made as to why the CHL was excluded. That mechanism is a defense or an affirmative defense.

We need to also remember that a "no guns" sign based upon TPC §30.05 is enforceable against anyone other than a LEO and a CHL. As a practical matter, if a property owner attempts to have a CHL arrested and relies upon an improper sign, then it’s likely the officer won’t make the arrest, or the DA will refuse charges.

Chas.

Flatland2D:

You are correct about that sign not effecting CHL's. You are also generally correct on the legislative history of TPC §30.06, with one difference. After 30.06 was enacted, 30.05 never applied to a CHL, if the sole reason for excluding them was the presence of a gun. SB501 passed in 2003 to preclude governmental agencies from using 30.06 and 30.05 was also amended just to make it abundantly clear that it did not apply to CHL's. It was overkill, but it kept dishonest city officials from attempting to rely upon 30.05.

Chas.