Need clarification on Texas open carry rules

[JoeSparky]

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.

IMO, we do have very many to many petty tyrants (OEO and LEO---'how do I know you are not a criminal/felon/ect) that seem to have the opinion one must prove that one is LAWFUL vs having to prove the OC'er was in violation of the law!

 

[janus]

IMO, we do have very many to many petty tyrants (OEO and LEO---'how do I know you are not a criminal/felon/ect) that seem to have the opinion one must prove that one is LAWFUL vs having to prove the OC'er was in violation of the law!

Case in point was the story, earlier in the thread, where a cop nearly arrested a man for not informing during a traffic stop, when the cop knew the only penalty, he erroneously thought, was a suspension of the CHL.

 

[Grapeshot]

Case in point was the story, earlier in the thread, where a cop nearly arrested a man for not informing during g a traffic stop, when the cop knew the only penalty, he erroneously thought, was a suspension of the CHL.

Hassled - yes. Given a free ride - no.

 

[Cbr6864]

I see a lot of issues coming up as store owners are being told the only holsters allowed are retention holsters with a strap securing the firearm.http://www.stateoftexaschl.com/wp-content/uploads/01_Business_Open_Carry_Presentation_20150915.pdf. That and the insane amount of liberals here now will make things interesting. I have legally CC for at least over 10 years here in Texas and plan to OC time to time depending on what im doing, but i have no intent on becoming case law study. I plan on waiting to see how things play out here first

 

[janus]

Hassled - yes. Given a free ride - no.

Without the sergeant's intervention he would have gotten the ride.

 

[Cbr6864]

I believe people are diving too much into the law. I too have read several police dept PDFs about rules pertaining to OC. most are stretching the truth to flat out lying. Now just because you havent broken any laws dosent mean you cant be arrested. Sure you may win in court but at what cost? Missed work bail lawyer fees? People are under the assumption that LEOs actually known every single line of every law that is simply not the case. Our federal, state and local laws are so complex and conflicting its a maze of insanity. Under the 4th you are protected against unlawful search and yes the only time you are required to produce ID is during a legal detainment. That being said i plan on producing ID whenever asked to me its not worth it to become a case law study. I honestly foresee several depts especially HPD hit by countless lawsuits with the first 6 months.

This wont be an easy process by any means. Reading through the boards there are already a bunch of idiots planning on OC an AR/AK pistol. Come on things like that are only going to make matters worse. That and so much misinformation like this link about holster retention requiredhttp://www.stateoftexaschl.com/wp-content/uploads/01_Business_Open_Carry_Presentation_20150915.pdf

 

[janus]

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.

Quite true, in the mean time, the cost in time and perhaps some cost in hiring a lawyer could have mounted. Now if you're in Austin, with all the liberals running around who knows how much it would have costed.

With Qualified Immunity for the cops and Absolute Immunity for the prosecutor and judges, a couple of ideological "officers of the court" could make life hell for the unfortunate.

 

[stealthyeliminator]

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.

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.

If the nonapplicability section is treated by anyone as affirmative defenses, it is done so in error. It was not intended to function that way.

 

[janus]

If the nonapplicability section is treated by anyone as affirmative defenses, it is done so in error. It was not intended to function that way.

All evidence I can find, so far, leans in that direction. So, 4th amendment should require a RAS to detain and demand CHL/ID.

Cops can always ask, but they can't demand. "Am I free to go?" is always a good idea to establish "consensual" vs "custodial" stop.

 

[color of law]

Gun rights supporters in Texas counted down the hours, minutes and seconds to New Year's Day, because when the clock strikes midnight, licensed firearms owners in the Lone Star State can openly carry their handguns in public.

Art. 1 Sec. 23. Texas Constitution
RIGHT TO KEEP AND BEAR ARMS.
Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

A license, being a privilege, being required to open carry and conceal carry begs the question, how does a citizen, having the right to keep and bear arms in the lawful defense of himself, bear his arms?

And since the constitution only addresses citizens of Texas, what about non-citizens of Texas do? Does the non-citizen right to bear arms fall under the Federal constitution, shall not be infringed?

 

[MAC702]

... Texas Constitution
RIGHT TO KEEP AND BEAR ARMS.
Every citizen shall have the right to keep and bear arms...

And since the constitution only addresses citizens of Texas...

Citizenship is your country. Residency is your state. I think the Texas Constitution is recognizing all citizens of the US.

That said, yes, their constitution is screwed up in immediately following its claim to a right to bear arms with saying it can regulate that you can't wear it.

 

[Grapeshot]

--snipped-- That and so much misinformation like this link about holster retention required

There is no requirement for a retention holster, none, nada, zip.

https://www.tsra.com/open-carry-faq/

[url]http://www.statesman.com/news/news/what-you-need-to-know-before-texas-open-carry-law-/nptMs/

[/URL]

 

[Grapeshot]

There will be a shakeout period, no doubt. Still expect that there won't be a lot of problems - this has been in the news so predominately that most will be aware of the basic change. Bad information will always be put forth by some - it is up to us to correct it at every opportunity.

 

[stealthyeliminator]

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.

I've been thinking about this and wondering what we could change it to. I'd want to tie in the entire 46.15 section, and not reference license holders specifically. In other words, I would want the change to be a "clarification" that 46.15 must be considered, as opposed to it seeming to concede that previously it didn't.

I've been thinking along these lines... Sorry if my grammar is incorrect.
A person to whom this section is applicable commits an offense if...
A person to whom this section applies commits an offense if...
A person to whom this section is applicable according to 46.15 commits an offense if...
A person to whom this section applies according to 46.15 commits an offense if...
A person to whom this section may be applied in accordance with 46.15 commits an offense if...
A person for whom there is no exception to the application of this section under 46.15 commits an offense if...
A person, unless they are excepted from the application of this section under 46.15, commits an offense if...
etc.


Sent you a question via PM btw, not sure if you saw it

 

[nonameisgood]

Art. 1 Sec. 23. Texas Constitution
RIGHT TO KEEP AND BEAR ARMS.
Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

I think the challenge should have been, 30 years ago, to the prohibition on carry, which is not strictly regulation. Now that we have a licensing scheme that apparently works for many people, it's hard to argue that it is not a constitutional regulation of wearing of arms.

As much as constitutional carry sounds good, this is a good first step, realizing it could easily be a step backwards if we get a progressive governor into office.


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[Sonora Rebel]

Good deal

Now when I visit Texas... I don't have to worry about printing and hiding my 1911 under a jacket when I cross the state line from NM. (I have an AZ CWP that I'll carry in my shirt pocket just in case).

The media (of course) predicts the worst... as do all the 'secret squirrels' that prefer to hide 'em.

 

[nonameisgood]

Now when I visit Texas... I don't have to worry about printing and hiding my 1911 under a jacket when I cross the state line from NM. (I have an AZ CWP that I'll carry in my shirt pocket just in case).

The media (of course) predicts the worst... as do all the 'secret squirrels' that prefer to hide 'em.

Secret Squirrel... Priceless

I tucked in my shirt today and looked in the mirror. Then untucked my shirt and said "not today." Who tucks their shirt in on a Sunday?


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[MAC702]

...Who tucks their shirt in on a Sunday? ...

I do, every day. IMO, it's the best benefit to open carry.

 

[nonameisgood]

CC has made me a sloppy dresser. To be honest, I was wearing a Columbia over shirt. Not a good look tucked in.

Now just a shirt and OC.


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[Jeep.Wrangler]

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

Sorry I've been away. Works been busy. So I wanted to add something to this.
There is a major question being asked by every police department that current the Texas ag is trying to resolve.
When the law was re written to accommodate open carry, they left out punishment for failing or refusing to show ltc to an officer. So currently if someone refuses to show, the officer can technically arrest and charge them, but there is no penalty in the law for this. The ag and the attorneys are trying to figure out what to do as it can't be changed until our reps meet again and vote to amend. So until then, they are kind of leaving it up to the cities which most cities city attorney's are trying to figure out. This will have to play out in court many times before something ends up getting done.
I am not pointing this out to encourage as I would discourage you from refusing since there's no reason to be a jerk and get your butt town on the grill. I just wanted to add that since I saw y'all talking about it.