should we report a place to TABC?

[bayouhazard]

They may know 46.035, but the rub will be the difference in what they are taught to enforce as 'premise' vs premise defined in 46.035. I don't know that many field officers who are going to sit down during the incident and look at the full details of the law and make the call. They will more than likely cite the person under the definition they are used to and let the DA or Judge make the legal call.

I just disagree.

Your prerogative. I tend to go with our resident expert on TABC matters when it comes to this viewtopic.php?f=7&t=66095&hilit=premises#p810280" onclick="window.open(this.href);return false;

If the alcohol code overrides the penal code, a gun in the car is a felony because the parking lot is premises.

[srothstein]

Perhaps I can clear this up a little bit. I cna even tell how the TABC Agents are trained, or were in 2009.

First, the fair is a 51% location for the whole grounds. There is only one license issued and it covers the whole grounds. It is for a vendor who only sells alcoholic beverages. When he applied for the license, he properly answered the question on percentage of sales from alcoholic beverages as more than 51% of his sales. TABC determined thus that it was a 51% location. If you do a search on this topic, we have pointed it out before for bowling alleys and other locations. A vendor can be a 51% vendor and it would cover the whole property unless he marked off parts of it on the license application.

A search of the TABC database just now shows that the license has been renewed. I would guess that the application was submitted before the expiration date and the earlier searches just happened to be within that time period. TABC has a policy that they will allow a person to continue to use the license while it is expired if the renewal has been received in a timely fashion. This helps not penalize people for TABC taking their time with an application.

There is a very gray area of the law caused by the conflict between the Penal Code and Alcoholic Beverage Code on the definition of a premises. TABC agents are taught both definitions in class and the conflict is brought up for them. Case law shows that the courts tend to go by the TABC definition so far, but that is all from before the CHL law was passed. Many people have been convicted of unlawfully carrying on a licensed premise for having a gun in their car in the parking lot. This was also brought up in class. When I taught class, I would then recommend that the agent keep both definitions in mind and make up their own mind on cases. I also recommended that they keep my policy of trying to avoid seeing any cases in appellate court styled as Rothstein v. anyone or anyone v. Rothstein. When I left, the primary instructor was also very pro-gun, though the director of the academy was more neutral on the issue.

Given that last policy, I recommend that no one here test this area of the law. I am fairly convinced that the courts would go with the Penal Code, but I cannot guarantee it. I am also convinced that this is a losing area for us. If we were to win in court, I believe the legislature would quickly change the definition of premises and it would not change in our favor.

[jbarn]

Perhaps I can clear this up a little bit. I cna even tell how the TABC Agents are trained, or were in 2009.

First, the fair is a 51% location for the whole grounds. There is only one license issued and it covers the whole grounds. It is for a vendor who only sells alcoholic beverages. When he applied for the license, he properly answered the question on percentage of sales from alcoholic beverages as more than 51% of his sales. TABC determined thus that it was a 51% location. If you do a search on this topic, we have pointed it out before for bowling alleys and other locations. A vendor can be a 51% vendor and it would cover the whole property unless he marked off parts of it on the license application.

A search of the TABC database just now shows that the license has been renewed. I would guess that the application was submitted before the expiration date and the earlier searches just happened to be within that time period. TABC has a policy that they will allow a person to continue to use the license while it is expired if the renewal has been received in a timely fashion. This helps not penalize people for TABC taking their time with an application.

There is a very gray area of the law caused by the conflict between the Penal Code and Alcoholic Beverage Code on the definition of a premises. TABC agents are taught both definitions in class and the conflict is brought up for them. Case law shows that the courts tend to go by the TABC definition so far, but that is all from before the CHL law was passed. Many people have been convicted of unlawfully carrying on a licensed premise for having a gun in their car in the parking lot. This was also brought up in class. When I taught class, I would then recommend that the agent keep both definitions in mind and make up their own mind on cases. I also recommended that they keep my policy of trying to avoid seeing any cases in appellate court styled as Rothstein v. anyone or anyone v. Rothstein. When I left, the primary instructor was also very pro-gun, though the director of the academy was more neutral on the issue.

Given that last policy, I recommend that no one here test this area of the law. I am fairly convinced that the courts would go with the Penal Code, but I cannot guarantee it. I am also convinced that this is a losing area for us. If we were to win in court, I believe the legislature would quickly change the definition of premises and it would not change in our favor.

Thank you. Can you tell me what exact law one might be charged with violating for having a handgun under a CHL outside of a building or portion of a building that has a 51% license?

[srothstein]

Yes, you would be charged under the Penal Code section 46.035. I am well aware of the definition of premises under the Penal Code section that says that this is not a premise. But I am also aware of the definition of a licensed premise under the Alcoholic Beverage Code. There premises is different, as it says: "Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person."

I agree with you that the charge should never be made or should be thrown out by the court. I am just not willing to bet that the courts would agree.

EDIT: I just thought about one other point to consider. One of the points the courts would consider is that generally, one law cannot make another law senseless. When that happens the courts will try to look at the intent of the legislature. Since TABC can issue a 51% license to a location that has no buildings at all, then the definitions of premises in the ABC makes the definition of premises senseless. The intent of the legislature is to not allow carrying in locations that are primarily sales of alcoholic beverages for on premises consumption. It would really depend on the specifics of the case making it to the court. If the premises had a building with a small area of tables on the sidewalk, the court might say the law really did mean just the building. If the licensed premise had no buildings but sold to an outdoor crowd walking around, it might rule the intent was to make the entire grounds off limits.

[jbarn]

Yes, you would be charged under the Penal Code section 46.035. I am well aware of the definition of premises under the Penal Code section that says that this is not a premise. But I am also aware of the definition of a licensed premise under the Alcoholic Beverage Code. There premises is different, as it says: "Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person."

This seems really simple for me. 46.035 says, in part, that one commits an offense if he carries on the premises of a 51% location. (Paraphrased for brevity) 46.035 also says that IN THIS SECTION, premises means a building or portion of a building. It does not say that premises has the definition of the Texas Alcoholic Beverage Code. It does not say premises has the definition of penal code 46.02. (At least that law is in the same code)

It does not matter what the ABC code defines for licensing businesses.

I agree with you that the charge should never be made or should be thrown out by the court. I am just not willing to bet that the courts would agree.

I would. The law is crystal clear to me.

EDIT: I just thought about one other point to consider. One of the points the courts would consider is that generally, one law cannot make another law senseless. When that happens the courts will try to look at the intent of the legislature. Since TABC can issue a 51% license to a location that has no buildings at all, then the definitions of premises in the ABC makes the definition of premises senseless. The intent of the legislature is to not allow carrying in locations that are primarily sales of alcoholic beverages for on premises consumption. It would really depend on the specifics of the case making it to the court. If the premises had a building with a small area of tables on the sidewalk, the court might say the law really did mean just the building. If the licensed premise had no buildings but sold to an outdoor crowd walking around, it might rule the intent was to make the entire grounds off limits.

The laws are not conflicting. 46.035 is specific. Had they intended a different definition than that given in 46.035, they could have written it like 46.03 for schools. In that section, the legislators showed their intent for schools by writing that off limits were any building or grounds where a school sponsored event is taking place is off limits. That same section uses the term premises to describe other off limits.

Had the legislature meant for 51% locations to use a different standard, they would have referenced the TABC code, or even used the phrase, "building or grounds". They did not. They used a word that is defined right there in that section of law.

Using the logic that some other definition might apply could also extend to the definition of premises in 46.02 which includes real property. Under your logic, a person carrying in nis car on a professional sporting event parking light might be charged because elsewhere in chapter 46 premises includes parking lots.

[srothstein]

I agree with your understanding of the law and see where we disagree. You are arguing the actual law as it is written. I am pointing out what the courts might do if the case was brought to them.

There is a legal philosophy known as realism that says the law is not really the law until the courts have ruled on what it really means. I do not subscribe to that theory in particular but recognize that many judges do and will act in ways that my understanding of the written law says are wrong.

[WildBill]

I agree with your understanding of the law and see where we disagree. You are arguing the actual law as it is written. I am pointing out what the courts might do if the case was brought to them.

There is a legal philosophy known as realism that says the law is not really the law until the courts have ruled on what it really means. I do not subscribe to that theory in particular but recognize that many judges do and will act in ways that my understanding of the written law says are wrong.

Steve - Thanks for your perspective. It's nice to see you posting again.

I ran across this article written by Jabez Fox. It is titled "Law and Logic" and was published in the Harvard Law Review in 1899.

Maybe a bit off topic, but still relevant to this discussion.

http://www.jstor.org/stable/1322630" onclick="window.open(this.href);return false;

[nightmare69]

I was told when I went through TABC training that their definition of premise differs from TPC 46.035. Makes sense cause depending what section you are in words can have multiple definitions. Perfect example is the definition of a child, there are 3 definitions for age defines a child that I know of.

[WildBill]

I was told when I went through TABC training that their definition of premise differs from TPC 46.035. Makes sense cause depending what section you are in words can have multiple definitions. Perfect example is the definition of a child, there are 3 definitions for age defines a child that I know of.

Good observation. Your training is showing.

[nightmare69]

Here is the TABC definition of "Premises".

§ 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED
PREMISES. (a) In this code, "premises" means the grounds and all
buildings, vehicles, and appurtenances pertaining to the grounds,
including any adjacent premises if they are directly or indirectly
under the control of the same person.

http://law.onecle.com/texas/alcoholic/11.49.00.html" onclick="window.open(this.href);return false;

[tbrown]

Here is the TABC definition of "Premises".

§ 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED
PREMISES. (a) In this code, "premises" means the grounds and all
buildings, vehicles, and appurtenances pertaining to the grounds,
including any adjacent premises if they are directly or indirectly
under the control of the same person.

http://law.onecle.com/texas/alcoholic/11.49.00.html" onclick="window.open(this.href);return false;

That's the definition I would use when enforcing the alcoholic beverage code. If I was enforcing UCW, I would use the definition in 46.02 TPC that includes RVs. If I was enforcing 46.03 or 46.035 TPC, I would use the shared definition for those sections, limited to buildings and not RVs or other vehicles. If I was enforcing 30.05 TPC, I would remember the operative word is not premises but property (including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle.)

[nightmare69]

Here is the TABC definition of "Premises".

§ 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED
PREMISES. (a) In this code, "premises" means the grounds and all
buildings, vehicles, and appurtenances pertaining to the grounds,
including any adjacent premises if they are directly or indirectly
under the control of the same person.

http://law.onecle.com/texas/alcoholic/11.49.00.html" onclick="window.open(this.href);return false;

That's the definition I would use when enforcing the alcoholic beverage code. If I was enforcing UCW, I would use the definition in 46.02 TPC that includes RVs. If I was enforcing 46.03 or 46.035 TPC, I would use the shared definition for those sections, limited to buildings and not RVs or other vehicles. If I was enforcing 30.05 TPC, I would remember the operative word is not premises but property (including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle.)

Sounds like something the D.A. would need to sort out.

[tbrown]

Only if the people earlier in the process have literacy skills below the 8th grade level.

[nightmare69]

Only if the people earlier in the process have literacy skills below the 8th grade level.

If I was the LEO in the situation I would call the our local TABC officer and ask him what would be the best course of action, its why I have his number.

[MarshalMatt]

One thing which is "clear" is that the law seldom is. The law is muddy at best. That is why we have lawyers and judges. Heck, just the interpretation and debate of some very experienced folks here affirm that. I am very much enjoying this thread. I am expanding various topics in my classes and this is a great example to show students how the law may appear "clear" to one, but can be mucked up in a hurry by someone who knows how to argue the law. The words of the law do not always adequately convey the "intent" of the legislature and visa-versa.