30.05 signs

[spud]

Good point. I'm not sure.

[seamusTX]

I don't know the answer to your question, but give it more than half a day.

- Jim

[nitrogen]

well I was hoping that a more lawyerly response would come, but I'll take a crack at it.

30.05 says it won't apply if it's in regards to a concealed handgun.
So you go down to 30.06 which does apply.
in brief, 30.06 says you can orally tell someone they are not welcome with a handgun (much like someone can tell you that they aren't welcome under 30.05)

OR

They must post a sign meeting the exact requirements set fourth in 30.06.

This means, as far as 30.05 goes, a "no tresspassing" sign is sufficient to keep everyone out, including chl holders.
30.05 is NOT sufficient to keep people out only because they are carrying a concealed handgun. (i.e. a "no guns sign" isn't sufficient, as 30.05 can't apply there; only the increased wording of 30.06 does.)

In short, there is much less stringent requirements under 30.05 to post no tresspassing, than there is for 30.06. The reason for the wording is to make sure that the requirments for criminal tresspass in regards to a chl holder only matter in that instance; even though the oral requirements are similar.

(How'd I do, folks?)

[KRM45]

Now, please correct me if I am wrong, but I seem to think that "defense to prosecution" and "positive defense to prosecution" are two different things, the former meaning that you can still be prosecuted, just the defense side can bring up that section to the grand jury to try to get the case dropped. Is that correct?

If that is correct, what exactly is the point of 30.06 signs if a 30.05 sign can still land you in the same boiling pot of water, it just might take a bit longer?

30.05 and 30.06 are different animals. 30.06 is applicable only to CHL holders. The defense to prosecution basically renders 30.05 toothless if the sole reason for exclusion is the CHL issue.

as far as defense to prosecution and Affirmative Defense to prosecution goes look Here http://tlo2.tlc.state.tx.us/statutes/do ... tm#2.03.00
[/url]

[BadCo45ACP]

30.05 says it won't apply if it's in regards to a concealed handgun.

Not True. 30.05 (f) says "a defense to prosectution" not "does not apply". You CAN still be arrested & then prosecuted, IF the no trespassing sign includes specific references to a CHL holder. Will you be arrested? Depends on the officer on the scene. If arrested will you prosecuted? Depends on the Prosecutor.

a "no guns sign" isn't sufficient, as 30.05

Agreed. A plain "gunbuster" or "no guns" sign makes no references to trespassing or to a CHL holder.

[yerasimos]

Nitrogen, that was better than what I was about to post before I refreshed my thread view.

I am not sure if this will help at all, but here goes:

A charge on 30.05 will not stick on a CHLer if the CHLer was considered trespassing only because they were carrying a concealed handgun with their CHL. A concealed handgun with CHL cannot, by itself, turn a non-trespasser into a trespasser under 30.05. Ideally, LEOs that arrest a CHLer for tresspass under 30.05 should be able to articulate something relevant elsewhere in 30.05 besides 30.05(f) if that someone possessed a CHL with (or without) a concealed handgun.

I would hope that ~99% of the time, charges will not be filed that cannot be substantiated; the CHLer shows his Texas DL and CHL, and as long as there is no element of tresspass elsewhere in 30.05, the LEOs let him go. That does not mean that under certain . . . unique circumstances, you may have to go through the complete legal route (ticket or arrest, trial, etc), as opposed to a temporary detention at the scene. I would expect/hope most LEOs are not going to ticket or waste jail space on someone who is going to be vindicated in court anyway.

That said, the Duke lacrosse rape trial fiasco is an easy, though extreme, example of being put through the wringer just because there are unethical people in positions of power, who have incentives or motivation to try to push a case through despite inconsistencies, inconvenient details, etc.

[BadCo45ACP]

Nitrigen,

Thanks for the link you posted. It'll be a good addition to the library

[KRM45]

(d) If the issue of the existence of a defense is submitted
to the jury, the court shall charge that a reasonable doubt on the
issue requires that the defendant be acquitted.

"If the issue of the existence of a defense..." Can someone please re-word that in simpler terms? I don't understand what that section is saying

As I understand this section, you can be charged and brought to trial, and if your lawyer proves beyond a reasonable doubt that you meet the elements of the defense you will be acquitted.

Which means he must prove that the only reason you were in violation of 30.05 was due to the possession of the gun, and that at the time of the alleged infraction you were carrying said cun under the authority of your CHL.

It would be much better if this were an affirmative defense. You would then only need to prove beyond a preponderance of the evidence. As it was once explained to me beyond a reasonable doubt = 90-95% sure, upon a proponderance of the evidence = more than 50% sure.

[srothstein]

And there you have the correct answer, as I understand it also. 30.05 applies to all except for the specific exceptions listed (firefighters, EMS, police if it is because of a gun). A person with a CHL can be arrested if he receives notice that the gun is not permitted on the property, but if it goes to trial and the defense could prove this was why he was banned, the defense wins.

It does not stop at the grand jury (which does not even have to hear the case, misdemeanors can be filed without a grand jury), but at a real full trial. It can be expensive but you should win.

The question is what constitutes notice that the gun is not desired. I think it would take a person telling you specifically, sucha s the case in the other thread about AAC. A sign could be considered notice, BUT I think the court would look at the legislative intent of 30.06 and not take it as notice. So, as a general rule, you look for 30.06 signs but any person who tells you in person counts, even if the property is not 30.06 applicable.

[Charles L. Cotton]

We must be clear as to what property we are dealing with, when discussing TPC §§ 30.05 and 30.06. TPC §30.05 cannot be use to successfully prosecute a CHL holder solely because he/she is carrying a gun. This applies to both private property and government-owned or leased property.

To prosecute a CHL holder for trespass, the elements of TPC §30.06 must be met. This means the CHL must be notified by a compliant 30.06 sign, a written card or paper with the express language required on a 30.06 sign, or or by verbal warning. Note, a verbal warning does not require any specific language, as does a written warning. Something as simple as a verbal statement "no guns in here" will constitute proper notice under 30.06.

This is what worries me about the 30.05 discussions that have been discussed in various threads recently. If property is posted with a "no guns" sign that doesn't meet the requirements of TPC §30.06, then it doesn't apply to a CHL and the CHL can enter the property. If the owner or someone with apparent authority to speak for the owner learns you have a gun, he can tell you to leave. If you don't, you can be prosecuted for trespass, not under 30.05, but under 30.06 because you have now been given proper verbal notice. Crossing a 30.05 sign did not constitute a criminal violation, but staying on the property after receiving verbal notice violates 30.06.

None of this applies to a CHL entering or remaining on government owned or leased property, regardless of whether a private person or entity is renting or leasing it, no matter what is included in the rental/lease contract. This includes the much-discussed AAC property.

Chas.

[GrillKing]

Crossing a 30.05 sign did not constitute a criminal violation, but staying on the property after receiving verbal notice violates 30.06.

Thanks Chas. My question would be that, even though crossing a '30.05 sign' is not a criminal violation, can you be lawfully arrested for crossing such a sign? And then have to prove it out in court. Say, if you were known or suspected to have a firearm and law enforcement was called. Of course if asked to leave I would do so, but what if you weren't asked, just approached by a LEO?

To my non-lawyer mind, that's how I read the defense to prosecution part of the statute. I understand it to mean, that you can still be lawfully arrested but would be thrown out / not convicted if you could prove that you were not welcome due only to carrying under CHL (assuming 30.06 wasn't invoked).

Am I missing something??

Thanks,

Gary