TexasCHLforum.com

Posted: **Wed Dec 16, 2015 3:19 pm**

If the restriction has been lifted, how can the penalty still be in place.

Posted: **Wed Dec 16, 2015 3:27 pm**

Embalmo wrote:If the restriction has been lifted, how can the penalty still be in place.

The 46.035 restriction on amusement parks, churches, etc. has NOT been lifted IF posted IAW 30.06. So you can get prosecuted for both.

Posted: **Wed Dec 16, 2015 3:43 pm**

ScottDLS wrote:
Embalmo wrote:If the restriction has been lifted, how can the penalty still be in place.
The 46.035 restriction on amusement parks, churches, etc. has NOT been lifted IF posted IAW 30.06. So you can get prosecuted for both.

This again?

Keep reading down the page to 46.035(i)

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06 or 30.07.
:deadhorse:

EDIT: OK, wait. You sneaky devil. I think you're saying that because of the literal wording, a prosecutor could use both. But I'm sure that's contrary to legislative intent, since 46.035(i) was put in before to open those places up unless posted. Wow. Just ... wow. I almost want to delete this so I don't give them ideas...

Posted: **Wed Dec 16, 2015 4:03 pm**

Pariah3j wrote:
Scott in Houston wrote:
glazer1972 wrote:30.06 Misdemeanor A to C
51% Felony 3
Also note, it's not about the 51% SIGN… it's about the location and its liquor license designating it as such.
A 51% location may not have the sign, and if you're caught carrying there, you can still be prosecuted.

Also, if a non 51% location mistakenly (or purposely) posts the red 51% sign, you not be breaking the law, but you may have a legal battle ahead.
I've heard if you report the places that are not 51% but are displaying the red signs to the TABC, they have the clout to have them removed even when the business does not have a liquor license. Never seen it done, just heard/read that somewhere before.

Does a 51% location have the obligation to display that sign on the door/entrance correctly ? I went to a location this weekend and they had the 51% sign inside the door, off to the right, partially covered up, behind other signs/posters - if I had not been looking very hard for it, it would have been easily missed. I didn't CC inside because I was pretty sure the location was a red 51% location... just thought if someone didn't know for sure, that sign was almost designed to be missed IMO.

Yes, a business with a 51% license from the TABC has a requirement to post the sign at each entrance.

Code: Select all

Sec. 411.204.  NOTICE REQUIRED ON CERTAIN PREMISES.  
    (a)  A business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, and that derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises consumption as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code, shall prominently display at each entrance to the business premises a sign that complies with the requirements of Subsection (c).
    (b)  A hospital licensed under Chapter 241, Health and Safety Code, or a nursing home licensed under Chapter 242, Health and Safety Code, shall prominently display at each entrance to the hospital or nursing home, as appropriate, a sign that complies with the requirements of Subsection (c) other than the requirement that the sign include on its face the number "51".
    (c)  The sign required under Subsections (a) and (b) must give notice in both English and Spanish that it is unlawful for a person licensed under this subchapter to carry a handgun on the premises.  The sign must appear in contrasting colors with block letters at least one inch in height and must include on its face the number "51" printed in solid red at least five inches in height.  The sign shall be displayed in a conspicuous manner clearly visible to the public.
    (d)  A business that has a permit or license issued under the Alcoholic Beverage Code and that is not required to display a sign under this section may be required to display a sign under Section 11.041 or 61.11, Alcoholic Beverage Code.
    (e)  This section does not apply to a business that has a food and beverage certificate issued under the Alcoholic Beverage Code.

However, there is a defense to prosecution for 46.035 that covers license holders carrying into a 51% establishments that do not have the sign posted (or posted properly).

Code: Select all

(b)  A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
    (1)  on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

Code: Select all

(k)  It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.

Defense to prosecution means that you can still be arrested, charged, and taken to court, where you must assert your defense. That could be a costly battle to prove your innocence.

Posted: **Wed Dec 16, 2015 4:10 pm**

tornado wrote:
ScottDLS wrote:
Embalmo wrote:If the restriction has been lifted, how can the penalty still be in place.
The 46.035 restriction on amusement parks, churches, etc. has NOT been lifted IF posted IAW 30.06. So you can get prosecuted for both.
This again?

Keep reading down the page to 46.035(i)

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06 or 30.07.

EDIT: OK, wait. You sneaky devil. I think you're saying that because of the literal wording, a prosecutor could use both. But I'm sure that's contrary to legislative intent, since 46.035(i) was put in before to open those places up unless posted. Wow. Just ... wow. I almost want to delete this so I don't give them ideas...

I completely agree. The spirit of the law was to reduce the penalty, and these formerly barred localles are practically the only ones that currently post 30.06. Besides, That would be a heck of a lot of prosecution legwork for a Class A Misdemeanor.

M. Ball Moe

Posted: **Wed Dec 16, 2015 4:17 pm**

mr1337 wrote:
Defense to prosecution means that you can still be arrested, charged, and taken to court, where you must assert your defense. That could be a costly battle to prove your innocence.

Better get your lawyer on speed dial then, because the CHL exemption to 46.02 has been ruled a "DEFENSE". So by carrying with a CHL anywhere, you're subject arrest.

Posted: **Wed Dec 16, 2015 4:24 pm**

ScottDLS wrote:
mr1337 wrote:
Defense to prosecution means that you can still be arrested, charged, and taken to court, where you must assert your defense. That could be a costly battle to prove your innocence.
Better get your lawyer on speed dial then, because the CHL exemption to 46.02 has been ruled a "DEFENSE". So by carrying with a CHL anywhere, you're subject arrest.

Exactly. No DA worth their salt is going to accept charges for entering a 51% location that did not post the required 51% sign. Why bother when the defendant is going to win?

Chas.

Posted: **Wed Dec 16, 2015 4:26 pm**

tornado wrote:
ScottDLS wrote:
Embalmo wrote:If the restriction has been lifted, how can the penalty still be in place.
The 46.035 restriction on amusement parks, churches, etc. has NOT been lifted IF posted IAW 30.06. So you can get prosecuted for both.
This again?

Keep reading down the page to 46.035(i)

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06 or 30.07.

EDIT: OK, wait. You sneaky devil. I think you're saying that because of the literal wording, a prosecutor could use both. But I'm sure that's contrary to legislative intent, since 46.035(i) was put in before to open those places up unless posted. Wow. Just ... wow. I almost want to delete this so I don't give them ideas...

Steve Rothstein has made the point before that you could be prosecuted for both. I also believe it wasn't the intent, but it is the plain meaning of the law.

Posted: **Wed Dec 16, 2015 5:01 pm**

For reference sake, if you're ever unsure of a location's status, look it up here:

http://www.tabc.state.tx.us/PublicInquiry/Status.aspx

If you find that the location is improperly posted (e.g., 51% sign when it's actually 'gun sign=blue') then you can report to TABC.
My experience has been mixed with results of doing that. Sometimes TABC responds and resolves, and other times they've never addressed it.

Posted: **Thu Dec 17, 2015 12:14 pm**

51% is a third degree felony. Big house time.

tex

Posted: **Thu Dec 17, 2015 5:28 pm**

Well, the Starlight Theater here in Terlingua continues to display a 51% sign even though the TABC site and their license on the wall says Blue. They have the 51% sign inside the door, but it is not visible since it is on the wall, next to the door, at table height so one doesn't see it until you are leaving. Sometimes they display the "Unlicensed Carry" sign outside the door, but inconsistently. Sometimes it's there, sometimes it's not.

I have sent at least one complaint to TABC, over two years ago, but nothing was done.

Posted: **Thu Dec 17, 2015 5:50 pm**

Terlingueno wrote:Well, the Starlight Theater here in Terlingua continues to display a 51% sign even though the TABC site and their license on the wall says Blue. They have the 51% sign inside the door, but it is not visible since it is on the wall, next to the door, at table height so one doesn't see it until you are leaving. Sometimes they display the "Unlicensed Carry" sign outside the door, but inconsistently. Sometimes it's there, sometimes it's not.

I have sent at least one complaint to TABC, over two years ago, but nothing was done.

TABC doesn't want to drive out all the way to Terlingua, that's why!
I have family in Alpine and sometimes I don't want to make that holiday drive haha.

Posted: **Thu Jan 14, 2016 1:40 pm**

Please forgive my beating a dead horse, some of my coworkers and I are in disagreement about the penalty for walking past a 30.06 sign is....

I think notice vs effective consent and written vs verbally and the time of the notice are confusing the issue.

Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:

(1) carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that entry on the property by a license holder with a concealed handgun was forbidden.

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(d) An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) and subsequently failed to depart.

http://www.txdps.state.tx.us/rsd/chl/faqs/index.htm

43. What are the penalties against a license holder for violating §30.06 or §30.07, Texas Penal Code?

Until January 1, 2016, it is a Class A misdemeanor for a license holder to carry a concealed handgun onto private property after receiving effective notice under §30.06, Texas Penal Code.

Effective January 1, 2016, it is a Class C misdemeanor punishable by a fine not to exceed $200 for a license holder to carry a concealed handgun onto private property after receiving effective notice under §30.06, Texas Penal Code, or to openly carry a handgun onto private property after receiving effective notice under §30.07, Texas Penal Code. Note, after January 1, 2016, the offense will be enhanced to a Class A misdemeanor if it is shown at trial that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) (of §30.06 or §30.07)and subsequently failed to depart.

Scenario 1
So I interpret this as if I received prior notice verbally or written/signage, and then later made entry then it's a Class C misdemeanor. Upon/after entry if I am then given a 2nd verbal notice and also failed to depart then it its a Class A misdemeanor. (and verbal notice must be given each time for class A)

My reasoning is that whether verbal or written, notice is notice and the penalty for violating notice is a Class C. The penalty for being asked to leave and remaining is a Class A.

Scenario 2
Some interpret as if you received prior notice, written or signage, and then later made entry then it's a Class C misdemeanor. But if you were initially given verbal notice and later made entry and also failed to depart then it its a Class A misdemeanor. (No second verbal notice, the initial verbal notice makes it a Class A and after one is given, no further verbal notice is required for class A)

The reason for my confusion is that say you miss the sign at an establishment you don't frequent often (especially if it is a chain) and you are given verbal notice and leave. Then you sometime passes by and you forget which establishment exactly gave you the notice. You again walk in missing the sign and then it's a class A because you were given prior verbal notice?

I am looking for signage (which can be missed) and verbal notices can be easily forgotten. That's why scenario one makes the most sense to me.

But which is it?

TexasCHLforum.com

What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?

Re: What is the penalty for carrying past a 30.06 or a 51% sign?