30.06/30.07 question

[jordanmills]

If it's a 51% location, it doesn't matter whether they post the sign or not.

According to PC §46.035:

(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 or carried in a shoulder or belt holster, 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;

So even without a sign, carrying in a 51% location is illegal.

Technically if they do not post, you have a defense to prosecution. In my view that means it's not illegal. That is unless you consider carrying anywhere WITH LTC illegal, since 46.15 is ruled only a Defense to 46.02.

That's not correct. The wording used is "does not apply to". The word "defense" does not appear in 46.15.

[ScottDLS]

If it's a 51% location, it doesn't matter whether they post the sign or not.

According to PC §46.035:

(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 or carried in a shoulder or belt holster, 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;

So even without a sign, carrying in a 51% location is illegal.

Technically if they do not post, you have a defense to prosecution. In my view that means it's not illegal. That is unless you consider carrying anywhere WITH LTC illegal, since 46.15 is ruled only a Defense to 46.02.

That's not correct. The wording used is "does not apply to". The word "defense" does not appear in 46.15.

And the courts have ruled that that language constitutes only a Defense to prosecution. According to the decision language that must be used to create an exception is: It is an exception to the application of ...

From TXPC Chapter 2 Burden of Proof

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

Since 46.15 does not include this exact language, an appeals court ruled it was a Defense.

[jordanmills]

If it's a 51% location, it doesn't matter whether they post the sign or not.

According to PC §46.035:

(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 or carried in a shoulder or belt holster, 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;

So even without a sign, carrying in a 51% location is illegal.

Technically if they do not post, you have a defense to prosecution. In my view that means it's not illegal. That is unless you consider carrying anywhere WITH LTC illegal, since 46.15 is ruled only a Defense to 46.02.

That's not correct. The wording used is "does not apply to". The word "defense" does not appear in 46.15.

And the courts have ruled that that language constitutes only a Defense to prosecution. According to the decision language that must be used to create an exception is: It is an exception to the application of ...

From TXPC Chapter 2 Burden of Proof

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

Since 46.15 does not include this exact language, an appeals court ruled it was a Defense.

Interesting. Which means that you exactly right as you said. I stand corrected, and thanks.

[ScottDLS]

There is a thread somewhere out there where Charles mentioned the actual court case that established that 46.15 only created a Defense to Prosecution because it didn't use the exact language in TXPC 2.02. I think it was in Harris County and there was apparently some back room discussions that led to it... Anyway, IMO a Defense is pretty powerful if you clearly meet the criteria. Even Texas LEOs now rely on this to be able to carry.

[C-dub]

Does not apply would seem to be stronger, no?

[ScottDLS]

Does not apply would seem to be stronger, no?

It would seem to be stronger, but it has been ruled to mean exactly the same as a Defense. "It is an exception to the application of..." is the language in the text of the PC section on standard of proof.