Texas Carry Executive Director sued for filing signage complaint against Waller County

[mr1337]

Waller Co. shouldn't even have standing to sue the individual. If they want someone to sue, it should be the AG when he finds them in violation of TX Gov. Code.

I hope this gets thrown out by a judge before the individual has to put any time or money into his defense.

[G.A. Heath]

My understanding is that Waller County posted signs citing 46.03 and 46.035 not 30.06 or signs referring to a chl. If that is the case those signs might pass legal muster for avoiding a fine.

[KLB]

Another issue is whether the Government Code 411.209, detailed procedures for resolving the legitimacy of no-gun signs in public facilities were intended by the legislature to be exclusive. Again, not my area, but if I were handling this case, I would look at that. Note that 411.209 provides for venue in Travis County. Waller County has done an end run around that. That's troubling and perhaps a reason to say the statutory procedures are exclusive.

[KLB]

Waller Co. shouldn't even have standing to sue the individual.

As the term is ordinarily understood, Waller County has standing, but that begs the question whether this is the appropriate forum to vindicate its grievances. See my past above about whether the 411.209 procedures should be construed to be exclusive.

I hope this gets thrown out by a judge before the individual has to put any time or money into his defense.

Me, too.

[KLB]

My understanding is that Waller County posted signs citing 46.03 and 46.035 not 30.06 or signs referring to a chl. If that is the case those signs might pass legal muster for avoiding a fine.

You're pointing out a flaw in 411.209 that has concerned me all along.

[ELB]

My understanding is that Waller County posted signs citing 46.03 and 46.035 not 30.06 or signs referring to a chl. If that is the case those signs might pass legal muster for avoiding a fine.

You're pointing out a flaw in 411.209 that has concerned me all along.

As I recall, the AG opined that a sign does not have to be a 30.06/30.07 sign, nor need there even be a sign. If a government entity tries to bar a license holder from carrying in an area he is legally entitled to carry in, then the governmental entity is doing so illegally.

[ELB]

...Note that 411.209 provides for venue in Travis County. Waller County has done an end run around that. That's troubling and perhaps a reason to say the statutory procedures are exclusive.

Not just Travis County:

411.209 (g)

A suit or petition under this subsection may be filed in a district court in Travis County or in a county in which the principal office of the state agency or political subdivision is located.

Looks like the AG can choose whether to sue in Travis County or on the offending agency's home turf.

[Papa_Tiger]

My understanding is that Waller County posted signs citing 46.03 and 46.035 not 30.06 or signs referring to a chl. If that is the case those signs might pass legal muster for avoiding a fine.

You're pointing out a flaw in 411.209 that has concerned me all along.

As I recall, the AG opined that a sign does not have to be a 30.06/30.07 sign, nor need there even be a sign. If a government entity tries to bar a license holder from carrying in an area he is legally entitled to carry in, then the governmental entity is doing so illegally.

The excluded communication includes oral notice per GC 411.209. It doesn't matter what their sign says if they have a security guard at the secured entrance backing it up orally. The crux of the matter is that they want "Premises" to mean "building" when referring to any structure that houses a court or office utilized by the court, whereas the Texas AG has defined it more narrowly as the "portion of building" that is the actual courtroom or office (See KP-0047 and KP-0049).

[SewTexas]

My understanding is that Waller County posted signs citing 46.03 and 46.035 not 30.06 or signs referring to a chl. If that is the case those signs might pass legal muster for avoiding a fine.

You're pointing out a flaw in 411.209 that has concerned me all along.

As I recall, the AG opined that a sign does not have to be a 30.06/30.07 sign, nor need there even be a sign. If a government entity tries to bar a license holder from carrying in an area he is legally entitled to carry in, then the governmental entity is doing so illegally.

The excluded communication includes oral notice per GC 411.209. It doesn't matter what their sign says if they have a security guard at the secured entrance backing it up orally. The crux of the matter is that they want "Premises" to mean "building" when referring to any structure that houses a court or office utilized by the court, whereas the Texas AG has defined it more narrowly as the "portion of building" that is the actual courtroom or office (See KP-0047 and KP-0049).

it doesn't matter what they want the definition of "premises" to be. what matters is the definition of the legal "definer" (I like that word)
if everyone can go around making up their own definitions of legal words....well then, I'm going to make up my definition of TAX, and the IRS may not like it, but it will be my definition and by golly, they are just going to have to accept it, because Waller County says so.

[G.A. Heath]

From Texas Government code 411.209:

(a) A state agency or a political subdivision of the state may not provide notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned or leased by the governmental entity unless license holders are prohibited from carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code.

The Oral notice is communication described by 30.06 therefore it is covered under 411.209 as a violation. A sign that refers to a concealed handgun license is also covered, but a sign that says something to the effect of "Per penal code sections 46.03 and/or 46.035 it is illegal to carry a firearm on this premises." is not covered because it does not refer to 30.06 or a CHL. A similar sign that says "Per penal code sections 46.03 and/or 46.035 it is illegal to carry a firearm, licensed or not, on this premises." Would most likely qualify as a violation. A sign says something more like "Per penal code sections 46.03 and/or 46.035 it is illegal to carry a firearm, even with a Concealed Handgun License, on this premises." would definitely be a violation.

[NotRPB]

If Holcomb's lawyer has any experience at all, he'll demand a change of venue.

Yup, Special Appearance (Texas Rule of Civil Procedure 120a), then Motion for change of venue

Rule 84, Rule 86(1) ... etc etc etc

IANAL

[mojo84]

I'm just curious how much you internet lawyers charge per hour.

[TreyHouston]

I'm surprised Charles hasn't chimed in yet, this case is absolutely ridiculous

[Lynyrd]

I'm just curious how much you internet lawyers charge per hour.

No joke! We may need you!

[Charles L. Cotton]

This is the ordinary declarayory relief action, the form whenever there is a dispute over interpretation of a written instrument, etc.

While the complaint against Holcomb does not expressly name him as the complainant, there is no doubt that is who filed it. If it turns out otherwise, the case will be dismissed because there is no dispute, effectively, with Holcomb.

I'm not conversant with civil procedure in Texas enough to evaluate this procedurally, the form of pleading, etc.

A District Judge is not presdisposed to rule in anyone's favor, the county or otherwise. There are hundreds of cases where political subdivisions have lost cases against ordinary citizens when the facts and law supported that result. If a judge has reason to feel otherwise, (s)he must recuse him or herself. I have known of cases where, because of strong local feelings, or ties to the community of one party, the entire local bench recused themselves, and the matter was heard by a visiting judge. Judges have a more than ordinary interest in courtroom security, of course. That is likely more of an influence for an individual judge than anything else.

Eventually, courts will interpret these provisions. It will very likely be the Texas Supreme Court to have the final say.

It might have been cheaper for Holcomb to file a complaint in his county and leave it to others to file in their counties. "Don't want no trouble, don't start none."

The suit is utter garbage and suggesting that a person should not avail himself of a statutorily proscribed procedure to prevent continuing violation of Texas law by a governmental entity boggles the mind. BTW, I'm hardly a fan of Terry Holcomb.

Chas.