The 86th Texas Legislative Session has been in swing for almost two months, so we thought now would be a good time to highlight some proposed legislation relating to civil litigation that may affect your business.
While riding the perimeter of his South Texas ranch in preparation for the upcoming dove season, Gaul Derrnit spies trespassers crawling through a new hole in his fence. Twice before other illegal immigrants damaged Gaul’s fences and gates, water lines and water storage tanks, vandalized his property, burglarized an isolated ranch home and left massive amounts of trash. Derrnit is fed up. Recalling the murder of an off duty Border Patrol officer, Gaul is armed and “about ready to shoot ‘dem S.O.B.’s.” May Derrnit shoot these trespassers?
NO. Keep your powder dry, Derrnit. Despite an erroneous internet belief, there is no law in the State of Texas, and no case law, that permits Gaul to shoot these trespassers on his property.
Trespasser, Licensee or Invitee? Under the law, anyone who enters your property is an invitee, licensee or a trespasser. You can summon an invitee, like a pizza delivery driver. An invitee generally enters the property for the parties’ mutual benefit – usually an economic benefit. Or you can welcome a licensee, such as a social guest. Typically a licensee is someone who enters your property for their own convenience – and not a mutual economic benefit – and with your permission. A trespasser enters your property without your permission.
Do Trespassers Have Rights? Yes, but not as many as a guest or invitee. Gaul Derrnit’s only responsibility to trespassers is to avoid injuring them “wilfully, wantonly, or through gross negligence.” The Texas Supreme Court upheld a property owner chasing trespassers on his ranch as not being grossly negligent. Gaul may be liable for gross negligence when two elements are present: (1) viewed objectively from Gaul’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) Gaul must have actual, subjective awareness of the risk involved, but nevertheless proceed.
Could Derrnit Have Criminal Liability? Maybe. Texas protects property owners from criminal liability against trespassers in certain circumstances. The Texas Penal Code provides that Gail Derrnit is justified in using force to remove a trespasser if he believes the force is immediately necessary to prevent or terminate the trespass. Derrnit is also justified in using deadly force if: (1) he reasonably believes that it is necessary to use force to prevent or terminate the trespass; and (2) he reasonably believes deadly force is necessary to prevent the trespasser from committing certain crimes, such as arson, burglary, or robbery.
Tilting the Scales in Your Favor
Call a law enforcement officer. Shooting someone and killing them is always a homicide. It may be justified, absolving Derrnit of criminal responsibility for the act if, and only if, there is a provable, defensible justification for use of deadly force. Generally, the exception requires a belief that deadly force is reasonably necessary to protect Derrnit’s life or the infliction of serious bodily injury to him or someone else. Gaul is also allowed to use deadly force to protect his property or the property of others in certain limited circumstances, for example, to prevent commission of arson, burglary, robbery, theft during night time or criminal mischief during the nighttime.
“Open Carry” advocates recently made the news by openly carrying rifles and shotguns into Texas businesses. The Texas Alcoholic Beverage Commission (TABC) issued a REMINDER to all those who hold a Liquor License that businesses licensed to sell or serve alcoholic beverages are prohibited by state law from allowing rifles or shotguns in the building.
Specifically, Section 11.61(e) of the Alcoholic Beverage Code says that TABC shall, after the opportunity for a hearing, cancel a permit if the permittee knowingly allowed a person to possess a firearm in a building on the licensed premises. Some exceptions include licensed concealed handguns and peace officers.
Tilting the Scales in Your Favor
If an individual carries a rifle or shotgun into a TABC-licensed business and the business owner knowingly fails to remove them, the business owner’s TABC license is at risk. The business owner should ask the patron to leave the premises. If the patron refuses, the permittee may contact the police and file criminal trespassing charges under Texas Penal Code Section 30.05.
If this is of interest to you, stay tuned for more next month.
Jeff Leach (LRM associate and Texas House Representative), helped us recap 5 bills of critical interest to you and your business passed in the last Session.
DRUG TESTING FOR UNEMPLOYMENT BENEFITS (SB 21)
Drug testing required to receive unemployment benefits IF employer required pre-employment drug screening.
The legislation, effective September 1, mandates if someone submits an initial claim for unemployment benefits, they must submit to a drug-screening assessment, consisting of a written questionnaire, by the TWC if their occupation required pre-employment drug testing. If a reasonable likelihood of drug use is found, the applicant will have to pass a drug test to be eligible for unemployment benefits. Seven other states have passed similar measures.
BUSINESS TAX CUTS (HB 500)
Improving Texas’ positive business climate.
House Bill 500 offers over $700 million in business tax relief and makes the $1 million small business tax exemption permanent. HB 500 also provides for a franchise tax deduction for businesses that are relocating to Texas.
SCHOOL DRIVING LAWS STRENGTHENED (HB 347)
Statewide ban on handheld cell phone use on school property.
Unless the vehicle is stopped or the driver is using a hands-free device, House Bill 347 prohibits someone from using a wireless communication device while on public or private elementary or middle school property.
EDUCATION (HB 5)
Reforms: A new accountability system, new end of semester exams, and academic planning flexibility.
We must not only teach our students how to pass tests and graduate high school, but we must also train them and prepare them for the jobs of tomorrow. With House Bill 5, the Legislature instituted sweeping reforms to Texas public education. HB 5 institutes a new standard course of study for high school students and substantially reduces the number of end-of-course exams public high school students must pass to graduate, from 15 to 5. HB 5 also establishes a new accountability ratings system evaluating schools on academic performance, financial performance, and community and student engagement. Finally, HB 5 changes how students who do not wish to attend college can enroll in vocational, career and technology-related courses.
WATER (HB 5, HB 1025 & SJR 1)
Water: Long-term, affordable and sustainable water supply projects.
Water, not oil, is the foundation upon which the Texas economy is built. The 2012 State Water Plan says the total needs are projected to increase by an astounding 130% over the next 50 years. A series of bills (H.B. 4, H.B. 1025 and S.J.R. 1), creates long-term financing assistance for water supply projects. Two billion dollars from the state’s “Rainy Day Fund” will pay for the water plan via a new State Water Implementation Fund for Texas (SWIFT), a special fund outside of the state treasury to implement the new plan. Texas voters must approve the funding structure via a constitutional referendum.