Texas CHL vs. the employee handbook

[Rio Laxas]

So I thought I knew the answer to this question until today, when I re-took the Texas CHL class. The instructor stated that it is a felony to carry a concealed handgun at work when the employer has prohibited it in either the company manual or by posting any kind of no guns sign at the entrances. He further stated that the signs to do not have to be the typical 30.06 signs either, as those would apply to visitors.

I would have dismissed his claims if it had not been a question on the exam. The question on the exam was true/false question that stated that any employer has the right to deny entry to the premises by a CHL holder by means of writing it into the company manual and/or posting signs. It further stated that the signs did not have be the 30.06 signs. The correct answer to the question was true. This exam said Texas Department of Public Safety on the first page and appeared to be a mandated exam.

I have never heard this before, and I can find nowhere in the penal code where this is a crime. The instructor cited 30.05 (criminal trespass), but I don't see it and it certainly is not a felony. The thing that strikes me about the test question is that it says the employer has the right, but it does not say it is a crime. In other words, an employer is free to fire you for non-compliance, but this doesn't mean it is a crime.

It was always my understanding the written notice had to follow the 30.06 verbage exactly and that a simple no guns statement in the employee handbook was not effective written notice. As such, you could be fired but not prosecuted. Can anyone confirm or deny this? If this is in fact a crime, can you please point out the relevant legal citations?

I have also searched some of the old threads, and most of what I am finding confirms my original opinon on the issue. However, if an employer goes over the policy with you verbally then it is a different matter.

 

[readr1]

According to the TX CHL Instructor I used it IS a felony if the employer involves the law, However most just fire you. That was his statement. The employer also does NOT have to have the sign in 30-06 form for employees, but for visitors it does have to be in 30-06 form.

 

[divemedic]

When people make claims that things are illegal, I always have one question: Can you tell me which statute I would be charged under?

That is when you find out that they don't know, but they are giving you information that someone else told them. Kind of like those annoying emails you always get.

 

[Rio Laxas]

I should also note that this same instructor claimed that the travelling provision that makes it legal to carry in your car without a license, but it must not be in a holster or other storage device intended for on body carry. I believe this statement to also be erroneous and likely based on one person's misinterpretation of the law. Nowhere in the travelling provision does it state that it cannot be in a holster or that it cannot be on your person. It simply says it must be concealed.

 

[Double Naught Spy]

According to 30.05, 30.06, 46.035 and specific circumstances, carrying into the workplace against the employee handbook would not be a felony, but a misdemeanor (but is a felony under other circumstances such as being employed in a prison and bringing a gun into a secured area or that you are carrying on the premises with the intent to commit a felony).

As I understand it, written communication in the form of the employee handbook counts just as well as verbal notification (assuming there is proof you received and read the employee handbook which many employers require signed forms saying you have). So if you are discovered carrying after receiving said communication, you are trespassing, which is not a felony in and of itself. Anybody have information to the contrary?

...makes it legal to carry in your car without a license must not be in a holster or other storage device intended for on body carry.

That is just an amazing statement. Where do they get this stuff?

 

[Rio Laxas]

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:
(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) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
(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) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(i) vertical lines of not less than eight inches in length and not less than one inch in width;
(ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
(iii) placed at locations that are readily visible to any person approaching the property and no more than:
(a) 100 feet apart on forest land; or
(b) 1,000 feet apart on land other than forest land; or
(E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.
(3) "Shelter center" has the meaning assigned by Section 51.002, Human Resources Code.
(4) "Forest land" means land on which the trees are potentially valuable for timber products.
(5) "Agricultural land" has the meaning assigned by Section 75.001, Civil Practice and Remedies Code.
(6) "Superfund site" means a facility that:
(A) is on the National Priorities List established under Section 105 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9605); or
(B) is listed on the state registry established under Section 361.181, Health and Safety Code.
(7) "Critical infrastructure facility" means one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders:
(A) a chemical manufacturing facility;
(B) a refinery;
(C) an electrical power generating facility, substation, switching station, electrical control center, or electrical transmission or distribution facility;
(D) a water intake structure, water treatment facility, wastewater treatment plant, or pump station;
(E) a natural gas transmission compressor station;
(F) a liquid natural gas terminal or storage facility;
(G) a telecommunications central switching office;
(H) a port, railroad switching yard, trucking terminal, or other freight transportation facility;
(I) a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas; or
(J) a transmission facility used by a federally licensed radio or television station.
(c) It is a defense to prosecution under this section that the actor at the time of the offense was a fire fighter or emergency medical services personnel, as that term is defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances.

(d) An offense under Subsection (e) is a Class C misdemeanor unless it is committed in a habitation or unless the actor carries a deadly weapon on or about the actor's person during the commission of the offense, in which event it is a Class A misdemeanor. An offense under Subsection (a) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if:

(1) the offense is committed:
(A) in a habitation or a shelter center;
(B) on a Superfund site; or
(C) on or in a critical infrastructure facility; or

(2) the actor carries a deadly weapon on or about his person during the commission of the offense.

(e) A person commits an offense if without express consent or if without authorization provided by any law, whether in writing or other form, the person:
(1) enters or remains on agricultural land of another;
(2) is on the agricultural land and within 100 feet of the boundary of the land when apprehended; and
(3) had notice that the entry was forbidden or received notice to depart but failed to do so.

(f) It is a defense to prosecution under this section that:

(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and

(2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.

(g) It is a defense to prosecution under this section that the actor entered a railroad switching yard or any part of a railroad switching yard and was at that time an employee or a representative of employees exercising a right under the Railway Labor Act (45 U.S.C. Section 151 et seq.).
(h) At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(1)(C), the defendant may raise the issue as to whether the defendant entered or remained on or in a critical infrastructure facility as part of a peaceful or lawful assembly, including an attempt to exercise rights guaranteed by state or federal labor laws. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(1)(C) does not apply.
(i) This section does not apply if:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and
(2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.
(j) For purposes of Subsection (i), "recognized state" means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:
(1) has firearm proficiency requirements for peace officers; and
(2) fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.

It appears to me that a concealed handgun license is a defense to prosecution under 30.05.

Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:
(1) 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:
(A) entry on the property by a license holder with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and failed to depart.
(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 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun"; 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.
(d) An offense under this section is a Class A misdemeanor.
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

From my reading of 30.06, it appears that in order to have received written notice, it must be in the 30.06 language. If they say it verbally, then of course it is binding.

For example, if an employee received an employee handbook that states that "unauthorized weapons are forbidden, whether they are concealed or not" or that "possession of a weapon constitutes work place violence", and they are not told these same things verbally, then I am not sure there is grounds for a trespass charge there.

I think the employer would have to become aware of the firearm and ask the employee to leave. Employers generally also forbid possession weapons while conducting company business off the premises in a company vehicle or not. I am not sure they could make that stick either.

As far as 46.035 goes, let's assume for the sake of argument that the business is not one of those special cases where it is off limits to carry. I don't see text in 46.035 that would lead me to believe that violating a company manual would constitute unlawful carrying of a weapon.

 

[Double Naught Spy]

My purpose for listing 30.05 was that it is one of the laws concerning firearms violations on property other than your own and it doesn't say anything about such carrying being a felony unless the felony is by means of some other infraction.

It isn't a felony under the other two sets of legal code either, except by some other infraction.

Since you obviously have the code in front of you and can copy and past it, where does it say that such would be a felony?

Why didn't you ask the instructor to cite the corresponding law? Since he made the claim, give him a call and see what he says. If he can't cite specific law for the claim, verify with DPS. If he is wrong report him to TxDPS for misrepresenting the law due to a lack of understanding of the law and explain your circumstances. From what you describe, he appears to be making up stuff and that isn't proper.

 

[Rio Laxas]

You are right, it says nothing about being a felony. I did ask him to cite the law and he said it violated 30.05 and then he brushed me off and kind of said concealed means concealed.

What concerns me though is that it was a question on the (possibly state written) test (though no penalty was mentioned) and it is obviously something other instructors are also saying, so I am hesitant to dismiss it without first doing my due diligence. I'm just wondering if maybe I am missing something obvious.

The only thing I can find is this from the government code:

Sec. 411.203. RIGHTS OF EMPLOYERS. This subchapter does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a concealed handgun on the premises of the business.

 

[DocRod]

There was a court ruling as a result of a lawsuit filed by one of our many Texas defense contractors to prevent any employees from carrying at work. They also tried to make it illegal for an employee to carry when traveling to and from work by prohibiting them from leaving a loaded weapon locked in their vehicle when parked anywhere on company property. I don't believe that they were able to get that one passed - but don't quote me on that one. I'm retired, so I have no idea how paranoid management has gotten in the past few years.

 

[Double Naught Spy]

You are right, it says nothing about being a felony. I did ask him to cite the law and he said it violated 30.05 and then he brushed me off and kind of said concealed means concealed.

If that is the case, you need to call Austin and have a chat with them concerning your instructor as he is providing you with wrong information.

What concerns me though is that it was a question on the (possibly state written) test (though no penalty was mentioned) and it is obviously something other instructors are also saying, so I am hesitant to dismiss it without first doing my due diligence. I'm just wondering if maybe I am missing something obvious.

Then you need to call Austin and speak to their attorney about the issue.

See a pattern here yet?

 

[TAG2501]

Your instructor is wrong.

 

[danbrew]

(2) the actor carries a deadly weapon on or about his person during the commission of the offense.

Good thing I am not an actor. I am a mechanic.

 

[AKElroy]

An employee handbook is just that. It is a list of guidelines that, if violated, will have employer dispensed consequences. Texas CHL law allows the carrying of the weapon; so no criminal offence exists absent the proper signage or verbal instruction. Violating the guideline may move the employer to act with discipline, though, just not legal action.

Drugs are likely prohibited as well by your handbook, and they are also a criminal offence to possess. That would have an employer sanction and a criminal sanction.

My employer prohibits weapons. One violating that guideline would be forced to weigh the costs of either being unarmed or potentially unemployed. I have made my choice.