Need clarification on Texas open carry rules

[OC for ME]

Does DPD have a strategy to detect fake 911 calls? For example, there is a group that has told its members to call 911 and report that persons openly carrying are committing a crime to get a police response. 911 will be trained to handle these types of calls.

Is there a criminal penalty in TX for false reports to 911? Will cops be diligent in the holding to account of these folks who get cops to jack up OCers? If the caller's name is not provided will 911 dispatch cops?

Also, display vs. provide.

 

[Glockster]

Is there a criminal penalty in TX for false reports to 911? Will cops be diligent in the holding to account of these folks who get cops to jack up OCers? If the caller's name is not provided will 911 dispatch cops?

Also, display vs. provide.

Think that it's covered under this:

Sec. 42.06. FALSE ALARM OR REPORT. (a) A person commits an offense if he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily:

(1) cause action by an official or volunteer agency organized to deal with emergencies;

(2) place a person in fear of imminent serious bodily injury; or

(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.

(b) An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public or private institution of higher education or involving a public primary or secondary school, public communications, public transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony.

 

[OC for ME]

Think that it's covered under this:

Sec. 42.06. FALSE ALARM OR REPORT. (a) A person commits an offense if he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily:

(1) cause action by an official or volunteer agency organized to deal with emergencies;

(2) place a person in fear of imminent serious bodily injury; or

(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.

(b) An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public or private institution of higher education or involving a public primary or secondary school, public communications, public transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony.

Can a citizen unknowingly make a 911 call? Other than a butt-dial...

 

[notalawyer]

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.

There are no circumstances wherein a lawful arrest could be made, let alone a conviction. No penalty = no crime. For something to be illegal, there has to be some form of punishment. "Upon conviction, the person shall be guilty of..." or "shal be punished in accordance with..." or "it is unlawful to..."

I'm not sure why this is such a hard concept for some people. :question:

 

[stealthyeliminator]

...
I'm not sure why this is such a hard concept for some people. :question:

Maybe because...

... such a romantic view of the state law ...

"The state law can't possibly not make sense... The state law can't possibly contradict itself... The state law can't possibly be fallible, even though it is written by fallible men"

Rather than looking at the state law and asking "what does this actually prohibit me from doing, how can this be used against me?" some might look at the state law and ask "how all can I obey, what can I do to please the state?"

Not accusing anyone here... Just saying, in general...

 

[Grapeshot]

There are no circumstances wherein a lawful arrest could be made, let alone a conviction. No penalty = no crime. For something to be illegal, there has to be some form of punishment. "Upon conviction, the person shall be guilty of..." or "shal be punished in accordance with..." or "it is unlawful to..."

I'm not sure why this is such a hard concept for some people. :question:

Laws are like body orifices = some have teeth and some do not - they're toothless.

One might choose carefully what you put where. Either way you'll likely know when you make the wrong choice. :uhoh:

 

[poetdante]

I am not in TX but I came across this and thought it might help. It might even warrant its own thread? if so go ahead and make it (someone)

http://www.houstontx.gov/police/open_carry/index.htm

Women in 11:40 and 19:45 are poster children for fear-stricken ignorant anti-gun "moms demand action". I could see the anger in their faces that this is a thing.

 

[HPmatt]

Sure is fun to actually have to deal w OC considerations in Texas.


Sent from my iPhone using Tapatalk

 

[solus]

I am not in TX but I came across this and thought it might help. It might even warrant its own thread? if so go ahead and make it (someone)

http://www.houstontx.gov/police/open_carry/index.htm

Women in 11:40 and 19:45 are poster children for fear-stricken ignorant anti-gun "moms demand action". I could see the anger in their faces that this is a thing.

interesting 'written' Q/A and found it interesting '

Q: If I see a person open carrying a handgun, should I call the police? A: Yes you can call the police, ...then they are probably a law abiding citizen who is legally open carrying.

Q: If you are walking down a street, and an officer approaches you, is it a voluntary encounter, or at this point am I “detained”? A: Technically, you are temporarily detained so that the officer can check your license and make sure that you are legally able to carry a handgun.

uh what does it mean to be 'temporarily detained' ??

sorry had to quit reading the BS responses...

ipse

 

[stealthyeliminator]

interesting 'written' Q/A and found it interesting '

Q: If I see a person open carrying a handgun, should I call the police? A: Yes you can call the police, ...then they are probably a law abiding citizen who is legally open carrying.

Q: If you are walking down a street, and an officer approaches you, is it a voluntary encounter, or at this point am I “detained”? A: Technically, you are temporarily detained so that the officer can check your license and make sure that you are legally able to carry a handgun.

uh what does it mean to be 'temporarily detained' ??

sorry had to quit reading the BS responses...

ipse

I've read statements and watched videos from a number of departments and cities and nearly every single one has had erroneous information.

Normally I'd say we shouldn't expect any problems, but I'm thinking about starting a pool on how long before the first charges and how long before the first lawsuit...

 

[nonameisgood]

I've read/watched videos from more a number of departments and cities, nearly every single one has had erroneous information.

Normally I'd say we shouldn't expect any problems, but I'm thinking about starting a pool on how long before the first charges and how long before the first lawsuit...

"Officer, I really need to win this pool, so can you wait 15 minutes..."


Sent from my iPhone using Tapatalk

 

[solus]

"Officer, I really need to win this pool, so can you wait 15 minutes..."

Sent from my iPhone using Tapatalk

well played...

ipse

 

[Glockster]

interesting 'written' Q/A and found it interesting '

Q: If I see a person open carrying a handgun, should I call the police? A: Yes you can call the police, ...then they are probably a law abiding citizen who is legally open carrying.

Q: If you are walking down a street, and an officer approaches you, is it a voluntary encounter, or at this point am I “detained”? A: Technically, you are temporarily detained so that the officer can check your license and make sure that you are legally able to carry a handgun.

uh what does it mean to be 'temporarily detained' ??

sorry had to quit reading the BS responses...

ipse

Yes, definitely hard to stomach a lot of this. There has been some good come out, but in my mind many more questions than answers. And sadly a lot of this does come back to their belief that you can be stopped anytime they want. Hence the temporary detention.

There is a lot of talk out there about being arrested if you are OC'ing and they ask for your CHL/LTC + DL. And the word is that the arrest will be because of unlicensed carry of a handgun. No license means no lawful carry. So that is a likely way for at least some cities to deal with this. You either step up and immediately produce the requireds as soon as requested, or be arrested. If you then claim that you have the license and/or try to show it, the discussion is that it will then be too late to avoid the ride and they can argue that you were asked, refused or otherwise failed to produce it, therefore you were arrested. I can't put my finger on it as I don't recall where I read the court case (might have even been a SCOTUS) where a driver failed to produce his license to carry immediately -- delayed it by some 45 seconds and it went badly for him. So I suspect that will be a tactic employed. Immediately produce both licenses or take a ride where it can (eventually) get sorted out -- assuming that you don't end up in front of the magistrate. If you're lucky, when asked for the licenses (both CHL or LTC and your DL), and you don't show them, the officer may give you the chance to do so as you're being arrested. But I'm putting my money on there being rides taken.

 

[janus]

This article about sums it up:

http://www.thetruthaboutguns.com/20...-a-texas-open-carrier-to-check-for-a-license/

Clear as mud I suppose. But really no different than any other OC state in the union.

It all depends on whether the lack of a license is an element of the crime of "Unlawful Carrying of Weapons" TX Penal code 46.02.

Section 46.15 Titled "Nonapplicability" says 46.02 does not apply to a license holder. If this section makes the lack of a license an element of the crime, then the Police do not have the power to compel you to display your license.

This means that the cop has to have reasonable cause to believe that you lack a license. For example, an obviously 12 year old with a holstered sidearm would satisfy the reasonable cause, since a 12 year old can not get a license.

A cop sees you with a gun and casually makes a comment of "you got a permit for that?". You reply "sure" and keep walking. There is no reasonable cause. You can also simply ignore and keep walking. This also does not create a RAS(Reasonable Articulale Suspicion). If you bolt, then RAS would be substantiated.

Texas Penal code Title 1 chapter 2, section 2.02 seems to imply that "Exceptions" are elements of the crime, that must be negated in the charging document.

Ultimately, a court must decide, but all indications are that a lack of a license is an element of the crime and so Texas cops should not be able to simply say "your papers, please" come 1st of January, which is tomorrow.

Georgia, where I live, went through this a few years ago, and the law was intentionally changed to make a lack of a license an element of the crime. If there are any doubt, in Texas, making this subtle change should be much easier than out right stating that the cops can't ask to see the license.

Current 46.02 says:

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

Why not change it to:

Sec. 46.02. UNLAWFUL CARRYING WEAPONS "Without a License". (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club "WITHOUT A LICENSE ISSUED UNDER Subchapter H, Chapter 411, Government Code," if the person is not: (addition in quotes)

That would make it black an white. No ambiguity at all.

 

[janus]

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.

I would tend to agree more with your stance regarding "being arrested" if this was in the Penal Code section of the Texas Statutes. However, it is actually in the "Government Code" section. As such, I doubt very much that a prosecutor would touch this with a 10 foot pole.

 

[janus]

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.

All of that depends on whether the Police/Peace officer has the power to arrest in that circumstance.

Texas Code of Criminal Procedure, Title 1 Chapter 14 Article 14.03 lists the authority of Peace Officers in Texas.

In this article, there are 17 references to "Penal Code" but none for "Government Code". It looks like the cops in Texas has no power to arrest for violation of Government Code 411.205.

 

[janus]

Statute without Penalties.

All this reminds of the firearms preemption statutes in Florida. It had the similar language of "shall", as in the 411.205, but no penalty. So the Florida municipalities pretty much ignored it and left the unenforceable ordinances on the books, until the state got tired of being ignored and added some teeth.

There were also some cases where same kinds of statutes without penalties mandated the government to do certain things, which also got ignored, but at least in this case, you can do a mandamus suit.

 

[MAC702]

...Current 46.02 says:

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. ...

Sec. 46.02. UNLAWFUL CARRYING WEAPONS "Without a License". ...

That would make it black an white. No ambiguity at all.

There might be a significant difference between simply requiring a Constitutional right to be licensed, and outright saying it must be licensed.

 

[janus]

There might be a significant difference between simply requiring a Constitutional right to be licensed, and outright saying it must be licensed.

You'll get no argument from me! Ideal situation would be for the state of Texas to acknowledge that the 2A prevents the state from implementing a licensing scheme for weapons carry.

However, I was merely addressing a statutory construction issue. Removing 46.02 in its entirety would be ideal, but if you're gonna have it, make the lack of a license an element of the crime of "Unlawful carry of weapons", this way the 4th Amendment would apply.

If the law say carrying a gun is illegal, but an affirmative defense is to have a license, then technically, you can be arrested every time you are out open carrying. A cop seeing the gun on your hip is a prima facie evidence of the crime. You can bring up the affirmative defense, only in court.

 

[Grapeshot]

--snipped--

If the law say carrying a gun is illegal, but an affirmative defense is to have a license, then technically, you can be arrested every time you are out open carrying. A cop seeing the gun on your hip is a prima facie evidence of the crime. You can bring up the affirmative defense, only in court.

I don't see this as a real potential problem.

Me thinks the local prosecutors and judges would get tired of having such cases consistently decided in favor of the plaintiff and read the arresting LEA/LEO the riot act - wasting everyone's time.