Legal issue on Texas concealed and open carry - a new twist

[ISCS Yoda]

Before I ask my question let me post the relevant provisions of the Texas Penal Code:

Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:

(1) carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that entry on the property by a license holder with a concealed handgun was forbidden.

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c) In this section:

(1) "Entry" has the meaning assigned by Section 30.05(b).

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

(b) For purposes of this section:

(1) "Entry" means the intrusion of the entire body.

(2) "Notice" means:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

(B) .....omitted.....

(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;

(D) ....omitted.....

...........

And then there is the open carry provision:

Sec. 30.07. TRESPASS BY LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN. (a) A license holder commits an offense if the license holder:

(1) openly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that entry on the property by a license holder openly carrying a handgun was forbidden.

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c) In this section:

(1) "Entry" has the meaning assigned by Section 30.05(b).

(2) "License holder" has the meaning assigned by Section 46.035(f).

(3) "Written communication" means:

(A) a card or other document on which is written language identical to the following: "Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly"; or

(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height; and

(iii) is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.

Basically, 30.06 and 30.07 are the same except for concealed versus open carry. The definition of entry is critical to my question.

First question - do you think it makes a difference if the facility posts two signs or combines the two provisions into one sign such that in pertinent part it reads:

............pursuant to Sections 30.06 and 30.07 of the Texas Penal Code............

and

...........may not enter this property with a concealed or openly carried handgun.....


The Penal Code provisions are very specific with respect to the size of the letters and wording of the signs. There is nothing in them that says that they can be combined. Esoteric legal question - do they fail if they are combined because they are outside of the letter of the law?

As you can see, the provisions are specific with respect to "entry" upon the premises. Suppose you enter the premises, which happens to be on the 4th floor of an office building, without seeing a sign but, later, you discover a huge, arguably compliant sign (never mind the combination of the two provisions for this particular point) above the elevators that is only visible as you are exiting the facility?

You have never been there before. It happens to be a surgical facility that fits the definition of a hospital but Texas law requires hospitals to post such signs if they want to ban handguns.You brought a gun with you because you always bring a gun with you unless you are aware of the prohibition so, next time, you maybe have no excuse but, still, it's an exit sign, not an entry sign.

As a lawyer, I have a significant problem with both the combination of signs and the posting where it cannot be seen upon entry.

And you say...................?????

 

[ContinentalOp]

I am not a lawyer, but I've been told I think like one (never was sure if it was meant as a compliment or an insult... ), so I'll give my take on this.

First question - do you think it makes a difference if the facility posts two signs or combines the two provisions into one sign such that in pertinent part it reads:

............pursuant to Sections 30.06 and 30.07 of the Texas Penal Code............

and

...........may not enter this property with a concealed or openly carried handgun.....

The Penal Code provisions are very specific with respect to the size of the letters and wording of the signs. There is nothing in them that says that they can be combined. Esoteric legal question - do they fail if they are combined because they are outside of the letter of the law?

I'm not sure about this one. I can only go by the sections you've posted, but it seems that 30.06 didn't specify the exact language required for a "no concealed carry" sign to be legally enforceable, unless you left that part out.

30.07(2)(b)(3)(A) uses the word "identical," so I would presume that if the wording didn't match it exactly, it wouldn't be enforceable. So it would seem to me that a combo sign would not be enforceable as far as open carry, but would still be enforceable for concealed carry (again, assuming you didn't leave out any sections saying that specific wording is required).

Two separate signs would seem to me to be legally enforceable, so long as they each met the legal requirements.

As you can see, the provisions are specific with respect to "entry" upon the premises. Suppose you enter the premises, which happens to be on the 4th floor of an office building, without seeing a sign but, later, you discover a huge, arguably compliant sign (never mind the combination of the two provisions for this particular point) above the elevators that is only visible as you are exiting the facility?

You have never been there before. It happens to be a surgical facility that fits the definition of a hospital but Texas law requires hospitals to post such signs if they want to ban handguns.You brought a gun with you because you always bring a gun with you unless you are aware of the prohibition so, next time, you maybe have no excuse but, still, it's an exit sign, not an entry sign.

As a lawyer, I have a significant problem with both the combination of signs and the posting where it cannot be seen upon entry.

And you say...................?????

As far as "entry" goes, I would agree that if signage wasn't placed at an entrance in accordance with the law, it wouldn't be enforceable. Most of the signage laws I've seen require that signs need to be conspicously visible at the first available entrance to be enforceable for the whole building. Otherwise the signs would only apply to whatever part of the building has the sign at its entrance. I could see someone using that as a valid defense.

With that said, in either situation, I would not want to be the test case.

 

[M29since14]

I picked my nits in thousandths of an inch, not with words and pieces of paper, so I certainly couldn’t speculate on anything like this in Indiana law, much less how the laws of another state might be interpreted, but I will say this about any sign relating to carrying firearms away from my own property: If they don’t want me there, I don’t want to be there.

 

[Ziggy2525]

I’m not a lawyer and I’m going from memory, so that’s always dangerous. To the second part of the OP’s question, in my state (Nebraska), the no weapons signage needs to be conspicuous and it needs to be at all entrances. Even though it’s not Texas, that would be kinda common sense in general, wouldn’t it?

If the signage isn’t conspicuous how can someone see it to obey it? If all the entrances aren’t posted, how can someone know about and be responsible for trespassing if the info wasn’t available to them until after they’ve already entered?

 

[fredj338]

I would think a sign at the exit side would not be in compliance. Entry means just that, visible on entry, not exit?? They must have Kalif lawyers writing their laws.

 

[moralem]

Now that you know, upon exit, that they don’t want you carrying then don’t do it or don’t go in.....plenty of other surgery centers across the metroplex to choose from.....

 

[Maddog 521]

Both signs must be posted at every entrance of the building to be legal. If/when you are asked to leave you must comply. This is what I have been taught.

 

[THEmodelof1989]

Regarding the combining of signs: As a lawyer you should already be aware how expensive playing this game can be. As a lawyer you should also be pretty aware that the judge in your case, should it become one, is going to have a higher expectation for you since you are an officer of the court. In a profession that demands networking and getting along with judges I'm not sure you want to start rattling people's cages unless it is your goal to be "that guy".

I'd imagine as a lawyer you are aware of the resources available to you, I'm curious as to why you came here to discuss legal matters. Not that it's against any rules, but what kind of sound legal advice are you expecting from a crowd with an average education MUCH MUCH lower than your own?

 

[gwpercle]

If I'm on the jury , that sign posted where it can't be readily seen upon entry to a building ...isn't properly posted .
A sign posted where it's seen only as you exit is a set up and not properly posted .

Signs , like EXIT signs , have to be properly posted ...putting an Exit sign where it can't be seen ... then claiming " we posted an Exit sign" isn't going to clear you... a sign has to be posted where it is readily visible and in a proper location .
Gary

 

[LoboGunLeather]

The issue of sign placement (clearly visible in a location that provides adequate notice to anyone entering the premises) seems to be critical, at least to my non-lawyer mind.

That said, I do not want to be put in the position of defending myself in court, with or without a possibly sympathetic jury empaneled.

About 3 years ago I went to the Port Aransas and Rockport area on the Texas gulf coast, met up with a friend from Houston to spend a few days of fishing. Both of us were carrying (my friend with Texas license, me with Colorado permit having Texas reciprocity). Found a very nice restaurant with oyster bar right on the water, went in and had a great lunch (along with a nice cold beer). Paid our bill and left; while going out the main entrance I saw the 30-06 sign posted on the inside of the door facing the interior of the building.

Given the placement of the sign I seriously doubt that a prosecution would have been successful, but I certainly would not want to be detained or arrested, possibly require bail, retain an attorney to represent me, and make another 2000 mile round-trip for each court appearance.

My buddy and I still refer to this incident as our "inadvertent felony". Retired police chief and a licensed professional engineer with MBA degree, and neither one of us can see any way we could have avoided the incident.

Oh well, the smoked oysters were great and the beer was ice cold so it could have been a lot worse.

 

[Kurusu]

My view on this.

Those, besides private citizens in their own homes, who do not wish armed people in their premisses should, besides a sign, have an enforced scanner control at the entry and provide the means to safekeep the weapons of those, that being armed, still wish to enter. That would effectively create a "gun free zone" instead of a "feelgood" and dangerous fallacy.

And that should be the "real" law not that "legal gibberish" pretending to be a law.

There. I said it. And feel better already.

 

[WR Moore]

Having spent decades within a large organization, I have a couple of thoughts in the sign location. I'

1. Someone handed some else the sign and told them to "Post this by the door." with no further instructions. Not having any idea of the legal requirements, they did.

2. The insurance company/legal counsel/gun phobic administration decided they wanted to be gun free. Someone who knew the legal requirements purposely posted the sign incorrectly.

2A. The same folks named above intentionally posted it improperly in the hopes they can do a "gotcha" on knuckle dragging gun toters.

I've seen a few no gun decals (Glock in a circle with a slash) posted where it'd be very hard to argue that they are prominently displayed.


About the signs.....if the law indicates that the message on the signs must be identical to what's specified in black letter statute, I'd expect that combining the signs, unless it's a real big sign with both messages, wouldn't pass muster.

 

[Justin T]

I watched signage evolution happen at a large company i worked for for 15 years. They started with “guns prohibited” signs. Then a 30.06 sign at the main entrance. Then at every entrance. Then 30.07 signs at every entrance. They had employees who were also LTC instructors telling them whether they were in compliance or not, and a security team verifying for themselves. I knew one of the LTC instructors, and watched it happen.

The signs must be separated by statute, and both must be posted for both to have the same effect. The law is clear that exact language, with exact letter dimensions, must be displayed at every entrance. Glock in a circle signs dont count. Signs posted at places other than entrances (where you have to enter to see them) don’t count. “No guns” signs dont count. A sign at one entrance when you have more than one doesnt count. A sign at an exit doesnt count. Signs at all ground entrances and not at upper level entrances (say, from a garage or elevated skyway) don’t count. A LTC person could, of course, point that out to building management, but are you gonna?

The signage requirements aren’t hard for a building owner to get right if they follow the instructions in the law. The signage that is done correctly isn’t easy to miss.

 

[THEmodelof1989]

My buddy and I still refer to this incident as our "inadvertent felony". Retired police chief and a licensed professional engineer with MBA degree, and neither one of us can see any way we could have avoided the incident.

Oh well, the smoked oysters were great and the beer was ice cold so it could have been a lot worse.

Looks like y'all did a little double dipping in the felony department if y'all were drinking while packing. You're absolutely correct, it could have been MUCH worse.

 

[fredj338]

Looks like y'all did a little double dipping in the felony department if y'all were drinking while packing. You're absolutely correct, it could have been MUCH worse.

That would be state by state, permit by permit. My Kalif permit says no drinking, no bar only while ccw.

 

[SMSgt]

Looks like y'all did a little double dipping in the felony department if y'all were drinking while packing. You're absolutely correct, it could have been MUCH worse.

Legal to carry while drinking in FL. Wise?

 

[Texas40]

30.06
30.07
Or 51% signs properly posted in accordance with the law are the ONLY legal signs in TX.

I abide by them.


Any other feeble attempts like no guns or red circle with line over gun etc I dis regard as if not even there.

IF I am asked by owner/mngmt to leave (for what ever reason they discovered Im armed) I will depart the premises. However I will/have informed them that IF they want me to honor there right/wishes I would like for them to follow the law and POST proper signs in accordance with the statue.

You want me to follow the law I want you to do the same.




Sent from my iPhone using Tapatalk

 

[THEmodelof1989]

That would be staye by staye, permit by permit. My Kalif permit says no drinking, no bar only while ccw.

We are talking about Texas specifically here if you've been following the thread. However, I doubt there is any state that allows one to be under the influence of drugs and/or alcohol and carry a handgun; its simply too much of a liability.

Legal to carry while drinking in FL. Wise?

Without being intimate with your state law I'm going to say no. Like I mentioned above, I'm not familiar with any state that allows the consumption of alcohol while carrying a firearm.

.............................................

I'm very surprised that almost everyone is aware that a sign banning the carry of firearms must be visible at the entrance of the premises, but it appears that several are confused about the fact that drinking while carrying is a big no no, with one of the only exceptions I can think of being special forms of active, but off duty law enforcement, or being a judge. Being intimate with ones local laws, federal rights, and federal liberties are paramount to being a red blooded American and instrumental if one plans to carry a handgun.

Simply put, there are rules a lot of rules, so make sure you read the instruction book.

 

[CW3Mike]

I have seen places that post the sign(s) to cover their butts but don’t care at all if you conceal carry.

If something happens they can say they posted and the carrier can say didn’t see it. BJ’s in Temple is perfect example. 51% sign is posted in the hallway leading to the bathrooms...

 

[SMSgt]

We are talking about Texas specifically here if you've been following the thread. However, I doubt there is any state that allows one to be under the influence of drugs and/or alcohol and carry a handgun; its simply too much of a liability.



Without being intimate with your state law I'm going to say no. Like I mentioned above, I'm not familiar with any state that allows the consumption of alcohol while carrying a firearm.

For the general education of all, regardless of state, here is the Florida statute:

790.151 Using firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances; penalties.—
(1) As used in ss. 790.151-790.157, to “use a firearm” means to discharge a firearm or to have a firearm readily accessible for immediate discharge.
(2) For the purposes of this section, “readily accessible for immediate discharge” means loaded and in a person’s hand.
(3) It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his or her normal faculties are impaired, to use a firearm in this state.
(4) Any person who violates subsection (3) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(5) This section does not apply to persons exercising lawful self-defense or defense of one’s property.

My bolding. So under FL law, not only is it allowable to carry a firearm while having a drink, it is not a violation of law to "use" it in legitimate self defense. So while Florida may no longer live up to its "Gunshine State" reputation, it still recognizes a person right to self defense, even if intoxicated. The morality and liabilities can be debated until the cows come home.