Desperately hoping to avoid a debate about
malum prohibitum and
malum in se, which I do not think appropriate here, the underlying rule is that a citizen has a right to receive advance notice of what a criminal trespass is before she can be arrested, prosecuted, convicted and punished for committing that crime.
Before we broadly brand Texas legislators as all being idiots, let us think about it a little bit.
The Texas legislature enacted a statute basically saying that a person holding a valid CHL can carry a concealed handgun anywhere in the great state of Texas -- anywhere -- except…. There came the rub. Except where?
The legislature knew that if it wanted to put some certain place “off limits” to a CHL holder that it had to provide a mechanism for the holder to receive effective notice before getting arrested for something she didn’t know was a crime.
There are two basic ways of getting notice, “actual notice” and “constructive notice.”
The statute recognizes that oral notice is effective. If a business owner tells her that she cannot carry concealed in his establishment then it is illegal for her to do so. To paraphrase something I said in an earlier post, sufficient oral notice is given if a business owner says, “Hey, Bubette, you can’t carry a concealed handgun in here even if you have a CHL!”
A citizen has constructive notice of a statutory enactment. She is “presumed to know the law.” (A pretty big presumption when you read a thread all over the place like this one, isn’t it?) Therefore, she is presumed to know that she cannot rely on her CHL to carry concealed into a polling place or other place specifically enumerated in the statute.
When a sign in two languages is carefully worded and printed as required by 30.06 and put in a conspicuous place for those entering to see, then it is reasonable for a judge to conclude that constructive notice was had. If Jane Doe, CHL holder, is unconscious to a sign of this size then it is not unfair for the state to punish her for violating the law anyway. Any reasonable person would have seen the sign. She had constructive notice. Things would be different if the sign was at the back door and she went in the front door. It just wouldn’t be right – and that pretty well defines “due process of law.”
That leaves us with cards and other documents. IMHO these can provide either actual notice or constructive notice, depending on the circumstances.
If a properly worded card or document is handed to a person I would think it would be reasonable to consider this to be actual notice. Of course a judge would undoubtedly require evidence that it was handed to her. This could be disputed, but this is why we have judges and juries. Ditto for cases of oral notice. Judges and juries sometimes have hard choices to make.
Now we come to the properly worded card or document posted on the front door of an establishment. Actual notice? Constructive notice? No effective notice at all? I would say it depends, and once again that is why we have judges and juries.
Let us suppose that it is a 5 x 8 card, appropriately worded, posted on the door to the business. Is it a “sign,” thereby giving constructive notice? I doubt it. The legislature placed more of a burden on the business owner. In most, if not all, cases, it would not be fair to prosecute a citizen for not seeing this inconspicuous card.
On the other hand, let us suppose this. Before entering the business Jane Doe is seen by a bystander to spot the 5 x 8 card, and lean over to read it. She rolls her eyes, shrugs, and says to the bystander, “That is not a valid 30.06 sign. The print is too small and it is not in Spanish.” She then pats her purse, winks at the bystander, and walks into the business carrying her concealed handgun. The bystander witnessing all this happens to be very anti-gun, and he reports to the nearest sales clerk that he suspects Jane of carrying a concealed handgun. The clerk calls security, which calls the police, and Jane ends up in court charged with criminal trespass. The bystander gives his evidence. Would the judge be justified in finding that Mrs. Doe had actual notice? I think so.
If all our laws were transparently clear and incapable of being misunderstood or construed in different ways our economy would crater when all the lawyers went out of business. We couldn’t let that happen.
This, by the way, is my opinion,
IT IS NOT A FACT!.
Best,
Jim