## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. PD-0624-20
DALLAS SHANE CURLEE , Appellant

v. THE STATE OF TEX AS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS

JACKSON COUNTY

K E L L E R 

### , P.J., filed a concurring opinion in w hich R I C H A R D S O N 

### , S L A U G H T E R 

### , and M C 

### C L U R E 

### , JJ., joined . I ag ree with the Court that the church p lay g round in this case was not “open to the public.” Bu t I t h i n k there is a way to resolve cases like this without g oing quite so deeply into the f acts
. There is nothing my sterious or obscure about the statute’s reference to p lay g rounds that are “open to the public.” I t means p ublic play g rounds. I w ould hold that, a t least in g eneral, play g rounds that are privately

owned are not “open to the public” within the meaning of the drug -free z one statute. One way to look at the question of whether a play g round is o pen to the public is to ask whether members of the public c an be ex cluded arbitrarily

. W hen a play g round is publicly owned,CURLEE CONCURRENCE — 2

the a nswer is “no.” 1 Unless a visitor to the play g round is violating play g round rules or the law or

some other restriction, no one can make him leave. Even t h e adult of “questionable character” posited in an ex ample in the State’s brief has as much of a rig ht to stay as any one else. Here, thoug h, there is n o doubt that there are peo p l e connected with the church w ho could ex c lude an adult of questionable character or any one else. I f a member of the public c an be ex c luded just because the owner doesn’t want him there, I think the property

is not open to the public. I n addressingthe leg islative history of the e nhancement statute, the State’s brief points out tha t d r u g- fr e e z o nes were to b e established where children are known to g ather. B ut the same senten c e re f

e r s to “ public play g rounds.” And a ny way , c hildren often g ather in p r ivate y ards with play g round equipment, but that doesn’t make the private y ard open to the public. I think it would be rare, but there may be cas e s i n which a privately owned play g round is “open to the public.” I would, therefore, adopt the private v ersus public property distinction as a rule of thumb rather than a hard-and-f a s t r u l e . B ut fence o r n o f ence, if members of the public can be

ex c luded by

the owners arbitrarily , Iwould hold that a play g round is not open to the public. Ijoin the opinion of the Court. F iled: April 14, 2021 Publish

1 A conflict mig ht ex ist among courts of a ppeals reg arding the means by which to challeng e a g overnment entity ’s d ecision to ex clude someone from public p roperty , but the conflicting cases seem to ag ree that a g overnment entity ’s d e c i s i o n to ex c lude someone is subject to due process constraints. Compare W

ilson v. State , 504 S.W

. 3 d 3 3 7 , 344-47 (Tex

. App.—B e aumont 2016, no pet.) (holding , in trespass case, that defendant should have used available c ivil remedies to challeng e g overnment official’s decision to b a n him from public community center) with Anthony v. State , 209 S.W

. 3d 296, 305-08 (Tex

. App.—Tex arkana 2006, no pet.) (holding , in trespass c ase, that unwritten p o licy allowing police officer to b a n someone from public park was unconstitutionally vag ue an d violates procedural due process).