By: CJ Grisham, President, Open Carry Texas
Today, Representative James White filed HB 1911, his version of an unlicensed carry bill – constitutional carry. Representative Jonathan Stickland’s HB 375 was filed several weeks ago. HB 375 has been heavily influenced and pushed by Open Carry Texas and Lonestar Gun Rights. HB 1911 is a bill heavily influenced and pushed by Texas Carry and the Texas State Rifle Association, the NRA’s state affiliate. While both bills remove the license requirements to keep and bear arms in Texas, there are some glaring problems with HB 1911. In our estimation, HB 375 – while not perfect – is a much stronger constitutional carry bill. In this post, we will explain the differences in the two bills, good and bad.
The most glaring difference between the two bills is how it defines who is “authorized” to carry a handgun in accordance with the constitution. HB 375 is much closer to our constitutional principles by allowing anyone who is not otherwise prohibited by law from possessing a firearm to legally carry that firearm. This means that under HB 375, those with felony, gun-related, domestic violence or other convictions that prohibit the ownership or possession of a firearm will not be able to carry in Texas without a license (nor with one). HB 1911 only allows “authorized persons” to carry without a license. The bill defines an “authorized person” as a person who meets the requirements under Sections 411.172(a)(1)-(13) of the Government Code. These requirements are as follows:
- Be a legal resident of the state for six months
- Be at least 21 years of age
- Not a convicted felon
- Not be CHARGED with a class A or B misdemeanor, equivalent or higher offense, or an offense of “disorderly conduct” within the past five years which includes
- “abusive, indecent, profane, or vulgar language” that is inciteful
- “offensive gestures” that are inciteful
- creating, by chemical means, a noxious and unreasonable odor in a public place
- threatening someone in an offensive manner
- unreasonable noises
- fighting in public
- discharging a firearm in public other than a range
- display of a firearm “in a manner calculated to cause alarm”
- discharging a firearm on a public road
- exposing your anus or genitals in public where someone might be offended or alarmed
In other words, you have no constitutional rights if you are convicted of using bad language or flipping someone the bird. You have no constitutional rights if you create unreasonable noises. And this isn’t just a conviction within the past five years only. A simple arrest means you have no rights, whether or not charges are ever even filed. To be fair, there is no due process in either bill. This simply isn’t addressed. Only two states prevent people convicted of minor, nonviolent “crimes” from carrying a firearm in self-defense – Texas and California. HB 375 fixes this by allowing anyone that is not a prohibited person from carrying. To get a license, one must pass more strict guidelines as noted above. However, the benefit to having more strict guidelines for the licensing is that a license triggers certain extra privileges: skipping the line to enter the capitol, purchasing a firearm from an FFL without going through the BGC, etc.
Critics will argue that if you are convicted of any crime, you are therefore not a law-abiding citizen. However, this mindset ignores several realities of our justice system. The first is that many people are arrested having never committed a crime. These people are charged with all manner of crimes, including felonies, that they didn’t commit. However, as if often the case, citizens can’t always afford for fight for their innocence.
The state can charge you with anything and can afford to fight against you to the ends of the earth with your tax money. The people charged, rightly or wrongly, must pay for their own defense out of their own pockets, unless they qualify for a public defender. Most public defenders are not trial attorneys, but plea bargain attorneys. In order to avoid going bankrupt, many of these innocent people who are charged with felonies are pressured to accept pleas of lesser offenses, like class a or b misdemeanors. In fact, when I was falsely arrested for lawfully carrying a firearm, prosecutors tried to get me to plea to several “lesser” offenses, but each of them no less than a class b misdemeanor.
Many times, defendants are offered probation in exchange for a guilty plea. Prosecutors are re-elected by obtaining as many guilty verdicts as possible and will strongly push for these plea deals while scaring defendants by telling them that if they go to court they face several years in prison. They will be convinced the jury will find them guilty. A recent example of this is the self-defense case of Marcus Weldon up in Detroit. They tried every plea bargain under the sun and prosecutors promised him 30 years in prison if he didn’t accept. He held firm and was eventually acquitted of all felony charges against him. Unfortunately, many people – especially those of lower income – will take these plea deals even if they were completely innocent of any crime because they either can’t afford or think they will be found guilty anyway. HB 1911 does not offer constitutional protection to those people.
HB 375 removes certain places that municipalities are authorized to prevent unlicensed carry. Those places include public parks, political rallies, parades, or official political meetings. HB 1911 does not change a single place that municipalities have the option to ban unlicensed carry.
HB 375 adds a section to Penal Code 46.15 to make clear that licenses aren’t required: “Notwithstanding any other law to the contrary, a person who is not otherwise prohibited by law from possessing a firearm shall not be required to obtain any license to carry a handgun as a condition for carrying a handgun.” This is an important addition because it spells out in no uncertain terms what constitutional carry means.
HB 375 finally defines “intoxicated” under conditions upon which an individual commits an offense by tying it to the definition under Penal Code Section 49.01. HB 1911 leaves the confusing and non-defined word “intoxicated” up to interpretation by an officer. Literally, some in law enforcement have interpreted this to mean drinking a single beer or glass of wine at dinner.
HB 375 allows all persons who are not “prohibited” from owning or possessing a firearm to carry on a college campus. HB 1911 maintains the licensing requirement for campus carry.
HB 375 adds in the Dutton/Huffines amendment that codifies the 4th amendment protections of gun owners. It makes clear that “The mere possession or carrying of a handgun, openly or concealed, with or without a license issued under this subchapter, shall not constitute reasonable belief for a peace officer to disarm or detain an otherwise law-abiding person.” This is an important protection for Texans that passed both the House and Senate last session, but was voted down in conference committee due to a minor wording conflict. However, both chambers made clear in the legislative record that law enforcement could not detain gun owners based solely on open carry in passing the open carry bill. Thankfully, most departments recognized that they had no authority to ID open carriers, but a few anecdotal incidents have occurred since open carry became legal.
HB 375 repeals the following laws that are not repealed in HB 1911:
(1) Section 411.205, Government Code (the requirement to present a license when required to ID);
(2) Section 46.02(a-1), Penal Code (prohibition against open carry of a handgun in a vehicle);
(3) Section 46.03(f), Penal Code (removes license only non-defense for entering a prohibited business);
(4) Sections 46.035 (c) and (d), Penal Code (these sections are moved to Section 46.035(b); and
(5) Section 46.035(h-1), Penal Code, as added by
Chapter 1222 (H.B. 2300), Acts of the 80th Legislature, Regular
Session, 2007 (this is simplified under HB 375 and only pertains to judges and district attorneys).
There are several sections that both bills omit, though they are different in each bill. HB 1911 is more comprehensive in combing Texas codes and amending them. With the licensing of handguns being mentioned in so many laws, it nearly takes a detective to find all the branches where the legislatures over the years have sought ways to infringe on our rights. HB 375 fixes Sections 411.2032 of the government code, but doesn’t address HB 1911’s fixes to Section 506.001 of the Business and Commerce Code; Section 51.220 of the Education Code, Section 231.302 of the Family Code; Sections 411.190, 411.201, 411.203, 411.206, and 411.209 of the Government Code; Section 12.092 of the Health and Safety Code; Section 42.042 of the Human Resources Code; Section 52.062 of the Labor Code; Section 191.010 of the Local Government Code; and Section 284.001 of the Parks and Wildlife Code. These omissions can be easily fixed through the amendment process in committee.
Both HB 375 and HB 1911 roll unlicensed carry into the 30.06 and 30.07 criminal trespass provisions. If a place has lawfully posted signage under those sections, they would apply to both licensed and unlicensed carriers under each bill.
Both HB 375 and HB 1911 create a confusing and dangerous patchwork of places where gun owners can carry a firearm. Under each bill, it is still a crime to carry a firearm, licensed or not, into a 51% establishment (a business that derives 51% or more of its sales from on-premises alcohol consumption). However, neither bill makes concessions for unlicensed carry at other businesses that sell alcohol for on- or off-premises consumption where on-premises consumption of alcohol constitutes less than 51% of revenue. In other words, places like Wal-Mart, gas stations, liquor stores, sit-down restaurants or movie theaters would be off-limits to unlicensed carry. It would still be legal for carry into those places if the person has a license, however.
In the end, I believe that HB 375 is a much better bill. The problems with it can easily solved with amendments to add the missing sections. There is no reason that non-violent, minor offenses should result in the loss of a fundamental right. HB 1911 creates too many disqualifiers for lawful carry without a license. There are two major factors that we rely on in supporting one bill over another (not that we oppose the other): which bill allows for more lawful carry by more Texans and which bill offers protections for those carrying lawfully. HB 375 does that. We don’t base our decisions on which bill “stands a better chance” by settling for inferiority over constitutional policy. Neither bill is perfect and we will always support any bill that moves in the right direction, but if we’re going to call it constitutional carry, we shouldn’t be preventing people “convicted” of minor offenses – like flipping the bird to someone – from carrying lawfully. Besides California, we are the only state doing that. This is Texas! Let’s act like it!