Need clarification on Texas open carry rules

[CrimsonSoul]

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.

Actually there use to be a penalty for failing to show id but it was taken out 2 or 3 sessions ago

Sent from my SM-G920T using Tapatalk

 

[janus]

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

Sorry only just looked at the PM.

As I wrote in the PM,


That court case and others like it in Georgia is why I posted what I did. If you structure your statute to say X is illegal and put unless Y in another section, most judges seem to think that X is enough for PC.

You can then argue Y in court. The point is to make the lack of a license an element of the crime. Such as making Driving without a license a crime.

If the legislator made "driving a motor vehicle is illegal", then had a section that says "the first section does not apply if you have a license", I would dare say that most judges will say that merely driving satisfies PC.

Georgia statute had the same problem for many years, and due to people being stopped for merely carrying a gun, the law was changed.

Georgia statute intricately links the offense of carrying a gun with a lack of a license. See Georgia statute 16-11-126. It essentially says that carrying a weapon without a license is illegal.

In order for Texas to be unambiguous it needs to do the same.

I think merely changing the law to say that it is a crime to carry without a license is sufficient. This way, the Police has to have reasonable belief that the offender lacks a license. As for the other exceptions, leave it where it is. They aren't gonna arrest a cop because he admitted to not having a CHL, where he has to tell the judge "but your honor, I'm a cop!"

The issue is being hassled because of Open Carry. From the court case you mentioned, due to the way the statute is written it is arguable that a PC is present. You certainly won't be able to sue for Section 1984 suit and be able to pierce Qualified Immunity.

Due to Texas Penal Code Title 1 Chapter 2 on Burden of Proof, you can't be charged with a 46.02 violation if you have a CHL, since chapter 2 demands that the prosecutor negates all exceptions. So at that point 46.15 would come into play.

What Texas will deal with is not even PC, but RAS. That judge said "see a gun" you have PC to arrest. Unless Texas law is changed the Police Chief in Austin can have his police arrest every open carrier and other than public opinion and may be irritation of his prosecutor, there is no legal recourse.

IANAL, but am just interested in knowing the law, and I used to live in Austin and carried using a Florida license, because it was cheaper to obtain for me.

 

[stealthyeliminator]

I think merely changing the law to say that it is a crime to carry without a license is sufficient. This way, the Police has to have reasonable belief that the offender lacks a license. As for the other exceptions, leave it where it is. They aren't gonna arrest a cop because he admitted to not having a CHL, where he has to tell the judge "but your honor, I'm a cop!"

The reason I wouldn't do that is because it adds another piece to have to fit into the overall picture. Also unless you also removed the relevant piece from 46.15 you'd basically have a penal code that said "It's illegal to carry without a license, unless you have a license, in which case the requirement to have a license doesn't apply." That doesn't make sense.

I know they wouldn't arrest another cop, that's the point. They wouldn't, so if they're reasonable, they'll act consistently and similarly on the other parts of the nonapplicability section.