Need clarification on Texas open carry rules

Much of the legislature intended the OC inquiry to stop at Inquire or maybe an (unofficial) Ask, as the Dutton amendment would have established. We have been saddled with the whole spectrum because of a lack of imagination.


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Glockster said:

You are required upon "demand" to produce both the CHL/LTC AND your DL if you are carrying under license (not other ID).

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Looks like you are quoting a pre-2009 version of that statute. It currently reads:

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

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http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.411.htm

The penalty was removed...so it's no longer unlawful.

notalawyer said:

Looks like you are quoting a pre-2009 version of that statute. It currently reads:

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.411.htm

The penalty was removed...so it's no longer unlawful.

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We are still legally required to do it, but cannot be fined or incarcerated for failing to do it. That makes it unlawful but with zero punishment.


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stealthyeliminator said:

snipp...

Meh, we will see. I'll let you know how it goes. If you get a collect call, I'm calling from the jail.
.

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sorry mate wouldn't be able to accept the collect call as I would be in the same holding cell as you...cuz in my small part of my world...that's what a good friend is all about...

ipse

nonameisgood said:

Much of the legislature intended the OC inquiry to stop at Inquire or maybe an (unofficial) Ask, as the Dutton amendment would have established. We have been saddled with the whole spectrum because of a lack of imagination.

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sorry, call it what it truly is...lack of cojones pure and simply.

ipse

nonameisgood said:

We are still legally required to do it, but cannot be fined or incarcerated for failing to do it. That makes it unlawful but with zero punishment.


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Penal Code: The codified body of the laws in any legal system that relate to crime and its punishment.

Nothing in that statute states that failure to do so is unlawful.

The punishment is what makes something unlawful, otherwise it's merely a suggestion.

It's a silly way to do business, but the portion of the legislature that wanted to repeal the stupid law did it this way as opposed to an outright repeal, because most of their associates are too stupid to actually understand what they were proposing. Those morons still think it's unlawful too.

notalawyer said:

Penal Code: The codified body of the laws in any legal system that relate to crime and its punishment.

Nothing in that statute states that failure to do so is unlawful.

The punishment is what makes something unlawful, otherwise it's merely a suggestion.

It's a silly way to do business, but the portion of the legislature that wanted to repeal the stupid law did it this way as opposed to an outright repeal, because most of their associates are too stupid to actually understand what they were proposing. Those morons still think it's unlawful too.

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Huh? I hope you're only kidding. Are you perhaps trying to split hairs regarding unlawful verses illegal?

Here's the definition of unlawful from Black's (http://thelawdictionary.org/unlawful/):

What is UNLAWFUL?
That which is contrary to law. “Unlawful” and “illegal” are frequently used as synonymous terms, but, in the proper sense of the word, “unlawful,” as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i. e., positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground of legal rights, either because they are immoral or because they are against public policy. It is on this ground that contracts in restraint of marriage or of trade are generally void. Sweet. And see Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 Atl. 946, 14 Am. St Rep. 732; Tatum v. State, 66 Ala. 467; Johnson v. State, 66 Ohio St. 59. 63 N. E. 607. 61 L. R. A. 277, 90 Am. St. Rep. 564; Pinder v. State, 27 Fla. 370, 8 South. 837, 26 Am. St. Rep. 75; MacDaniel v. U. S.

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Just because there currently is no penalty for violation of that statute doesn't then mean that it was not unlawful or the above definition would have stated that. What are you basing your statement on then?

Otherwise, for example, a warning ticket would have no meaning - your suggestion would mean that you weren't speeding if you only got a warning. So by your meaning, you could simply drive away from the nice officer as soon as you were told that they were going to give you a warning but before the officer finished with your being admonished for your speeding. But I suspect that you would then be followed and when pulled over would certainly receive more than a warning.

No punishment? I can see that item on your record, disqualifying you from holding or renewing your ltc.

hovercat said:

No punishment? I can see that item on your record, disqualifying you from holding or renewing your ltc.

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Supposedly a Class C isn't disqualifying for CHL/LTC. But yeah, I certainly wouldn't want that on my record. Things on your record can affect you in many ways. Even insurance these days is impacted by minor tickets. And if you had that on your record, you probably wouldn't find it any easier if you ever had one of those bad days and you did something that you really didn't mean to do but regardless it was something bigger than a minor fine. I'd think that any break you hoped for might then just evaporate.

Glockster said:

Supposedly a Class C isn't disqualifying for CHL/LTC. But yeah, I certainly wouldn't want that on my record. Things on your record can affect you in many ways. Even insurance these days is impacted by minor tickets. And if you had that on your record, you probably wouldn't find it any easier if you ever had one of those bad days and you did something that you really didn't mean to do but regardless it was something bigger than a minor fine. I'd think that any break you hoped for might then just evaporate.

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vehicle/homeowners, etc., insurance rates are affected by your credit score which is beyond comprehension IMHO...

ipse

hovercat said:

No punishment? I can see that item on your record, disqualifying you from holding or renewing your ltc.

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Glockster said:

Supposedly a Class C isn't disqualifying for CHL/LTC. But yeah, I certainly wouldn't want that on my record. Things on your record can affect you in many ways. Even insurance these days is impacted by minor tickets. And if you had that on your record, you probably wouldn't find it any easier if you ever had one of those bad days and you did something that you really didn't mean to do but regardless it was something bigger than a minor fine. I'd think that any break you hoped for might then just evaporate.

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I am assuming that you two are imagining being prosecuted and convicted for violating .205, just given no punishment. There is no offense created by .205, you can't be prosecuted under .205.

When the offense was removed, they also modified DPS's authority to suspend and revoke licenses, removing any authority they had to alter your license status based on non-compliance with .205.

I'm not suggesting people never follow GC 411.205... I have before. I'm just saying, it doesn't have what it takes to make me shake in my boots. Others will need to calculate their risks and make their own decisions. If they really want to do their due diligence, they can go and get legal advice from a lawyer.

stealthyeliminator said:

I am assuming that you two are imagining being prosecuted and convicted for violating .205, just given no punishment. There is no offense created by .205, you can't be prosecuted under .205.

When the offense was removed, they also modified DPS's authority to suspend and revoke licenses, removing any authority they had to alter your license status based on non-compliance with .205.

I'm not suggesting people never follow GC 411.205... I have before. I'm just saying, it doesn't have what it takes to make me shake in my boots. Others will need to calculate their risks and make their own decisions. If they really want to do their due diligence, they can go and get legal advice from a lawyer.

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i am sure if you fail at the 'DEMAND' portion the nice LE will have another interesting statute to cite you against which does in fact have 'punishment' attached to it.

we, the citizens just do not have foresight into their game plan ~ at least at this time!!

ipse

stealthyeliminator said:

I am assuming that you two are imagining being prosecuted and convicted for violating .205, just given no punishment. There is no offense created by .205, you can't be prosecuted under .205.

When the offense was removed, they also modified DPS's authority to suspend and revoke licenses, removing any authority they had to alter your license status based on non-compliance with .205.

I'm not suggesting people never follow GC 411.205... I have before. I'm just saying, it doesn't have what it takes to make me shake in my boots. Others will need to calculate their risks and make their own decisions. If they really want to do their due diligence, they can go and get legal advice from a lawyer.

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I was actually not referring to being prosecuted and convicted. I was speaking to the law that allows for the demand to be made, and am suggesting that with the penalty being removed I myself find nothing in the statute indicates that you cannot or will not be arrested for it. I disagree that there is no offense, as the statute is on the books. I also disagree that the offense was removed thereby modifying DPS authority in any away. Is there somewhere that I should look to find the language which states that you cannot be arrested? And the language that says that it is no longer an offense (not language about removal of penalty)? And anything in any code or in any DPS administrative rules which indicate that any arrest is not maintained on your record, and not made available the same way that any other arrests are?

Aside from that, I was alluding to those cities in which LEO may first demand your ID, and then upon someone's refusal can move along to other charges which do carry penalties.

solus said:

vehicle/homeowners, etc., insurance rates are affected by your credit score which is beyond comprehension IMHO...

ipse

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To add slightly to that tangent, I actually understand that one, and consider it to be far more fair that some of their other criteria. It's a numbers game, plain and simple, and they don't care about causation, just correlation. Bad risks in one area are known to be more likely to be bad risks in other areas.

That said, this is one that affects me because I have a credit card and USE it constantly while maintaining a significant balance because I'm buying and selling things that make a greater profit than I'm paying in interest. And I get a letter regularly from my insurance company telling me it is a reason I have a higher rate than I would normally have. I hope it isn't too much, because I know I'm one of their better risks overall.

Are they still allowed to use age and sex and marital status? Imagine the uproar if they were allowed to use religion! "Well, Mr. Mohammad, I personally think you are a good risk, but, well, it's a numbers game, and quite simply, the math says that you are more likely to have your car blow up."

Glockster said:

I was actually not referring to being prosecuted and convicted. I was speaking to the law that allows for the demand to be made, and am suggesting that with the penalty being removed I myself find nothing in the statute indicates that you cannot or will not be arrested for it. I disagree that there is no offense, as the statute is on the books. I also disagree that the offense was removed thereby modifying DPS authority in any away. Is there somewhere that I should look to find the language which states that you cannot be arrested? And the language that says that it is no longer an offense (not language about removal of penalty)? And anything in any code or in any DPS administrative rules which indicate that any arrest is not maintained on your record, and not made available the same way that any other arrests are?

Aside from that, I was alluding to those cities in which LEO may first demand your ID, and then upon someone's refusal can move along to other charges which do carry penalties.

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Of course we can't count on officers to refrain from making arrests, whether they're authorized in the law or not. That said, I think most of these questions can be answered by reading the bill that made the modifications in question. Fair warning, it is a long one, and not all of the bill is relevant to our discussion... You may want to open it and then do a text search for the heading of the section in question, to find each part of the bill that modifies that section. I'm not a lawyer, but, for example, I think section 411.187 deals with DPS authority to suspend licenses. Prior to this bill, one reason for suspension was "fails to display a license as required by Section 411.205". This was removed, thus, failing to display a license per 411.205 is no longer a reason for suspension. Additionally, for example, still not a lawyer, the portion of 411.205 reading "A person commits an offense if..." was completely removed, thus, the offense was removed, as that was the portion that created the offense...

I am, again, not a lawyer, but I believe there are very few cases, if any at all, where an arrest is authorized sans an offense being committed. If you check code of criminal procedure, and check the section arrest without warrant, you will see the keywords "offense" and "offender" as a common theme throughout. Just generally doing something that seems to be contrary to the perceived "spirit" of the law is not enough (or shouldn't be) for arrest, prosecution, or conviction... And I do not have such a romantic view of the state law that I go out of my way to try and live by the perceived spirit of the law, especially when it is constitutionally questionable law.

Edit: I forgot to link the bill! http://www.legis.state.tx.us/tlodocs/81R/billtext/html/HB02730F.HTM If you search for 411.205, but sure to read every section that makes modifications. Not all modifications made are in the same place in the bill.

Sorry, dupe.

Glockster said:

I was actually not referring to being prosecuted and convicted. I was speaking to the law that allows for the demand to be made, and am suggesting that with the penalty being removed I myself find nothing in the statute indicates that you cannot or will not be arrested for it. I disagree that there is no offense, as the statute is on the books. I also disagree that the offense was removed thereby modifying DPS authority in any away. Is there somewhere that I should look to find the language which states that you cannot be arrested? And the language that says that it is no longer an offense (not language about removal of penalty)? And anything in any code or in any DPS administrative rules which indicate that any arrest is not maintained on your record, and not made available the same way that any other arrests are?

Aside from that, I was alluding to those cities in which LEO may first demand your ID, and then upon someone's refusal can move along to other charges which do carry penalties.

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It's simple, if there is no penalty, LEO can do noting, legally, about it. They can't arrest, you, they can't even slap your wrists.

Aside from that, I was alluding to those cities in which LEO may first demand your ID, and then upon someone's refusal can move along to other charges which do carry penalties.

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Aside from being required to show your DL, while driving, I'm aware of only one situation where a lawful 'demand' for ID: After a lawful arrest.


The authority for DPS to encumber your permit was contained in that portion of 38.02 that was removed in 2009.


And the this portion of 411.187:

So a LEO is, legally, reduced to stamping his feet and whining.

notalawyer said:

It's simple, if there is no penalty, LEO can do noting, legally, about it. They can't arrest, you, they can't even slap your wrists.

--snipped--.

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I'm not so sure of that. I can see a circumstance where one could be arrested, go to court and be found guilty - just no monetary or jail time involved. Therefore, an arrest and conviction would exist in your dossier.

Grapeshot said:

I'm not so sure of that. I can see a circumstance where one could be arrested, go to court and be found guilty - just no monetary or jail time involved. Therefore, an arrest and conviction would exist in your dossier.

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Thank you, exactly the point that I've been trying to make. I suspect we won't have to wait too long before we see this happen.

Glockster said:

Thank you, exactly the point that I've been trying to make. I suspect we won't have to wait too long before we see this happen.

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If they trump up unrelated charges, why would there be no penalty?

You also said explicitly that wasn't what you were thinking of, when I said I imagined you two were talking about being arrested, prosecuted, and convicted, you said it wasn't... Yet here you say grape makes exactly the point you were trying to make, after he talks about... being arrested, prosecuted, and convicted... Make up your mind?