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Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 6:34 pm
by Texgun
But there is a requirement for EXACT sign requirements.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 6:37 pm
by 57Coastie
JJVP wrote:
What kind of lawyer is your friend? Has he ever read the applicable statues (sic)? Is he a criminal lawyer? Heck, did he even pass the bar exam?
There is nothing inconsistent about THIS statue (sic). It is VERY clear.
You have your opinion, JJVP, as to what these statutes mean, and my source has made some suggestions which may merit some thought -- but certainly not unacceptable and insulting rudeness. If that is the way we are to discuss an important question here, I will now back out. I have not, and would never, tell you that your opinion is wrong.
After one last word... My source has indeed read the statutes. He practiced criminal law for many years. He was the valedictorian of his law school class at one of the finest law schools in the country. Before his retirement he served as a criminal trial court judge and subsequently as a judge on a appellate criminal court.
BUT, I say again, so that we might end this discussion on the right note. He did not, repeat NOT, offer this forum his legal advice through me. He gave me a suggestion which I felt merited some thought, and I knew there were intelligent members of this forum who might share my interest in his thoughts.
Ignore that suggestion if you do not agree that it merits some thought, but in my opinion you are way out of line with your words from the gutter.
Jim
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 7:00 pm
by JJVP
57Coastie wrote:JJVP wrote:
What kind of lawyer is your friend? Has he ever read the applicable statues (sic)? Is he a criminal lawyer? Heck, did he even pass the bar exam?
There is nothing inconsistent about THIS statue (sic). It is VERY clear.
You have your opinion, JJVP, as to what these statutes mean, and my source has made some suggestions which may merit some thought -- but certainly not unacceptable and insulting rudeness. If that is the way we are to discuss an important question here, I will now back out. I have not, and would never, tell you that your opinion is wrong.
After one last word... My source has indeed read the statutes. He practiced criminal law for many years. He was the valedictorian of his law school class at one of the finest law schools in the country. Before his retirement he served as a criminal trial court judge and subsequently as a judge on a appelloate criminal court.
BUT, I say again, so that we might end this discussion on the right note. He did not, repeat NOT, offer this forum his legal advice through me. He gave me a suggestion which I felt merited some thought, and I knew there were intelligent members of this forum who might share my interest in his thoughts.
Ignore that suggestion if you do not agree that it merits some thought, but in my opinion you are way out of line with your words from the gutter.
Jim
The only comment I made that could be construed as rude was "Heck, did he even pass the bar exam? " which I removed from my post. The rest of my question were not rude and very appropriate. I would like to know someones credentials before I accept advice from them. After all, if you had a hearth condition, would you go visit a Podiatrist? No, you go to a Cardiologist. Since I don't know what your friends credentials are, I have every right to question his advice. So will apologize for the bar exam comment.
Now, with that out of the way, I still respectfully disagree with his interpretation of the law. You can disagree and we can agree to disagree. This will be my last post on this subject. Have a good day.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 7:17 pm
by 57Coastie
You just do not get it, JJVP. HE DID NOT GIVE YOU OR ANYONE ELSE ANY ADVICE. Excuse the shouting, but a calm voice just does not register. One's credentials are not in issue when he makes a suggestion.
Again, he gave neither you, me, nor anyone else any legal advice. Please do not construe his suggestion as advice. To hark back to another current thread, your reaction is precisely why lawyers, other than our mutual friend and moderator, do not make a habit of identifying themselves as lawyers when they make a posting, if they have any sense. It is just too likely that someone who does not read carefully will jump to an erroneous conclusion that they have been given legal advice.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 7:22 pm
by carlson1
OK IT IS TIME TO GO BACK TO TOPIC!!!!!!!
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 7:32 pm
by Trinitite
sjfcontrol wrote:If that's your argument, I would tend to agree. He is not guilty because of the signage, but because he refused to leave when asked.
That's correct. Even if there are no signs, you have to leave when told to do so by the owner/management.
Unless you're a cop, even off duty are exempt for some stupid reason.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 8:16 pm
by ScottDLS
57Coastie wrote:A lawyer (who has a CHL) once suggested to me that perhaps this is not quite as clear as reading the above posts assume. That is, notice is notice, but a particular type of notice is necessary for a CHL holder to be guilty of criminal trespass. Or, no matter how you are given notice that you are not welcome, then you are not welcome, and you may be denied entrance. Criminal trespass comes into play if the notice is not compliant with 30.06.
Here's where I respectfully disagree with your lawyer friend. There are 2 statutes at play here. PC §30.05. CRIMINAL TRESPASS and PC §30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN. 30.05 specifically provides a defense for people excluded on the basis of carrying w/ a CHL. So now you have to get prosecuted under 30.06 which has very specific wording about what constitutes written notice, and a gunbuster isn't it.
Or, if will, nothing in the statutes says that absent notice compliant with 30.06 you are permitted, regardless of the wishes of the business, to carry concealed in the premises.
You haven't been given notice under 30.06 that you ARE NOT permitted, and you have a defense under 30.05 that you were being excluded because of CHL.
In sum, In our discussions of 30.06 we may often omit the element of criminal trespass. Criminal trespass is the issue, not the right to enter, once one receives actual notice, in any form, and it is incorrect to say "the sign is worded wrong, so we have the right to enter."
Criminal trespass is PC30.05, and you have a statutory defense to any notice that excludes
on the basis of CHL. 30.06 requires you receive notice in a particular format, this is an element of the offense. Absent the proper notice, you have not committed the offense (Trespass
by a CHL Licensee. If there's a sign that says PRIVATE PROPERTY, NO TRESPASSING then anyone entering is violating 30.05.
His point would suggest that the broad language used, quite innocently, with respect to 30.06 could result in one being successfully prosecuted for criminal trespass should, as an example, his carrying of a concealed handgun be detected, he is told to get out, and he refuses, on the basis that he had not been given effective 30.06 notice by the noncompliant sign on the door.
Refusing to leave after you have been orally notified to do so is crime whether they have a sign or not. No one here has argued otherwise. I don't think the language in 30.06 is broad. It's quite specific.
Which this unnamed lawyer threw out for me to think about. If he is correct, there is no real difference of opinion here, he would only be criticizing the way the operation of 30.06 is sometimes described.
Well, I think he's wrong and believe that I have provided reasoned arguments why, based on the language of the statutes.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 8:19 pm
by jimlongley
sjfcontrol wrote:jimlongley wrote:PUCKER wrote:Here's the possible "upside" to this...business owners that WANT to prohibit CHLs call up and talk to this gal at DPS...she tells them ANY sign will work...(do you see where I'm going with this?)...so the business owners just post up a gunbusters sign, no guns sign, etc...and NOT a valid 30.06 sign. Just a thought.
And those same business owners, having accidentally discovered that you are carrying counter to the sign that DPS told them was adequate and proper, at least attempt to have you arrested, and raise a big stink either way. And if you are arrested you are out the bucks for the ride and possibly even more if the cops and DA agree with the store owner and DPS. And the stink the store owner is raising gets picked up by the liberal media and they raise a whole new stink about arrogant gun owners attempting to carry on private property counter to the owner's wishes, and then the AG issues an opinion that ANY sign is good.
Nope - goal for 2011 legislative session - strong positive language in new legislation to replace the current language, making it absolutely clear where CHLs can carry, TO EVERYONE (not just us who can read) and that one, and only one, sign is the right sign and that all others will be considered invalid in the eyes of the law and not subject to arrest.
How about adding that the sign must be displayed at all public entrances to the protected area?
Oh, yes, absolutely, ALL entrances, including those used by trades and delivery.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 8:56 pm
by jmra
57Coastie wrote:7075-T7 wrote:My question: Is "Notice" a Gunbusters sign? Because reading the letter of the law, it would seem like it is.
Arguably, yes. The argument my friend gave me is that "actual notice," given by any means, with any words, verbal or written, is effective notice that you cannot remain in the premises with a concealed handgun. On the other hand, if you do not speak English, notice given in English, verbal or written, is arguably not "actual" notice. This is true even though you may have lawfully entered the premises.
Where this argument gets to be fun is if a noncompliant sign (a "Gunbuster") is posted on the door, saying, for example, "NO GUNS PERMITTED IN THE STORE, EVEN IF YOU HAVE A CHL." Since it is noncompliant, you may open the door and enter, but once you are in, haven't you already been given actual notice by the Gunbuster sign, therefore you have to turn around and leave, or, perish the thought, although it was lawful to enter, the fact that you did in fact enter, makes your presence unlawful?
Questions like this, guys and gals, is how lawyers make a living. And judges also make a living with questions like this, but judges can often decide undecideable questions so as to make the whole package make sense. Happens all the time when there are arguably inconsistent rules.
Whether my lawyer-friend's suggestion is right or wrong, and it is only that, a suggestion, at least we have people now reading the statutes and arriving at a conclusion, and not just parroting, for example, an instructor who may be as dumb as a post -- and I had one of them when I got my first CHL. All he did for 10 hours was tell us what a great shot he was, and then told us the answers to all the written questions.
Jim
PS: I would suggest that all hands take care not to skip over one very important word: Entry -- entry -- entry, etc. Is that not what the 30-06 compliant sign authorizes? And only that?
The legislature created 30.06 to ensure that gun buster signs were not valid notice to CHLs. If they had intended gun busters signs to be notice then there would not have been any reason for the creation of a 30.06 sign. Doesn't take a rocket scientist or a lawyer to figure that one out.
I love lawyers. At a board meeting I recently attended our lawyer was suggesting that we change some wording on a document to meet some legal requirements. We asked how he thought it should be worded. He thought about it and said lets word it this way. Then he said no that will cause this problem. Lets word it this way...no that will cause this problem...to make a long story short we went back to the orginal wording. Said all that to say this...lawyers look for things to mean something that everybody knows they don't mean. With the exception of some liberal federal judges most courts are going to look at the intent of the legislature that passed the law. In this case the intent is very obvious.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 9:42 pm
by Kinetic
If A CHL holder is prudent, he would not be getting a verbal or written notice because they would not know you had a concealed firearm.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 9:53 pm
by A-R
57Coastie's lawyer friend's suggestions are very provocative to be sure. Even after reading all of this a few times, I'm still not sure I completely understand his point entirely. But after ready Scott DLS's rebuttal, I'm going to have to agree with that for now. 57Coastie, if you'd like to try to explain this again (redundant for you, I realize) I for one am interested in exploring this idea further.
I think what your lawyer friend is saying is that without 30.06 compliant sign, you can't be guilt of violating 30.06 law if you carry. But you could still somehow be guilty of violating 30.05 Criminal Trespass? Am I understand this correctly?
I think we've all stipulated at this point that we all agree that ANY VERBAL NOTICE given to a CHLee at any time regardless of any and all signs and the CHLee MUST LEAVE. Failure to do so at that point would be a clear violation of 30.06
Anyway, 57 Coastie, if you can try to explain this position one more time I'd much appreciate it. Thanks. Just trying to wrap my head around this because it is interesting and provocative.
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 10:04 pm
by A-R
IANAL
Was just re-reading all the fine print in section 30.05 and I found this interesting and perhaps an additional problem for those who carry under authority of another state's license, recognized by Texas (such as Utah CHL for example):
section (f) basically gives defense to prosecution if the only "no trespassing" notice was for person's carrying a gun and the person doing so has a valid Texas CHL ...
Texas PC Sec. 30.05 wrote:(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.
"licensed issued under Subchapter H ... etc is what I'm interested in here. This would seem to only apply to a Texas CHL? But maybe not, need some of the legal eagles to help me on this one. I'm further swayed to believe it does only give a defense to Texas CHLs because later in the section it provides specific defense to prosecution for LEOs from other states, but NOT for CHLs from other states:
Texas PC Sec. 30.05 wrote:(i) This section does not apply if:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and
(2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.
(j) For purposes of Subsection (i), "recognized state" means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:
(1) has firearm proficiency requirements for peace officers; and
(2) fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.
Thoughts?
IANAL
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 10:44 pm
by ScottDLS
austinrealtor wrote:
Was just re-reading all the fine print in section 30.05 and I found this interesting and perhaps an additional problem for those who carry under authority of another state's license, recognized by Texas (such as Utah CHL for example):
section (f) basically gives defense to prosecution if the only "no trespassing" notice was for person's carrying a gun and the person doing so has a valid Texas CHL ...
Texas PC Sec. 30.05 wrote:(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.
"licensed issued under Subchapter H ... etc is what I'm interested in here. This would seem to only apply to a Texas CHL? But maybe not, need some of the legal eagles to help me on this one. I'm further swayed to believe it does only give a defense to Texas CHLs because later in the section it provides specific defense to prosecution for LEOs from other states, but NOT for CHLs from other states:
If you look in GC Subchapter H Section 411.173
(b) The governor shall negotiate an agreement with any other state that provides for the issuance of a license to carry a concealed handgun under which a license issued by the other state is recognized in this state or shall issue a proclamation that a license issued by the other state is recognized in this state ...
...
I think you could make a good argument that the reciprocity agreement or proclamation IS the granting of a license under Subchapter H, since the language is IN this subchapter. The out of state license holder would then have the defense to 30.05.
-Scott
Re: State Employee says no 30.06 needed???
Posted: Thu Jan 28, 2010 10:50 pm
by A-R
ScottDLS wrote:austinrealtor wrote:
Texas PC Sec. 30.05 wrote:
...
(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.
"licensed issued under Subchapter H ... etc is what I'm interested in here. This would seem to only apply to a Texas CHL? But maybe not, need some of the legal eagles to help me on this one. I'm further swayed to believe it does only give a defense to Texas CHLs because later in the section it provides specific defense to prosecution for LEOs from other states, but NOT for CHLs from other states:
If you look in GC Subchapter H Section 411.173
(b) The governor shall negotiate an agreement with any other state that provides for the issuance of a license to carry a concealed handgun under which a license issued by the other state is recognized in this state or shall issue a proclamation that a license issued by the other state is recognized in this state ...
...
I think you could make a good argument that the reciprocity agreement or proclamation IS the granting of a license under Subchapter H, since the language is IN this subchapter. The out of state license holder would then have the defense to 30.05.
-Scott
Scott, I agree that's the way it should be read. But the words "licensed issued" still concern me. The state of Texas does not "issue" other state's CHLs under 411 or any other statute, it merely "recognizes" them.
IANAL
Re: State Employee says no 30.06 needed???
Posted: Fri Jan 29, 2010 12:09 am
by boomerang
7075-T7 wrote:My question: Is "Notice" a Gunbusters sign? Because reading the letter of the law, it would seem like it is.
30.06 (c) (3)