DPS Willful Ignorance of the Law Starts at the Top

As many are aware, this past weekend two OCT members were arrested by Capitol DPS Troopers while lawfully carrying pre-1899, replica cap and ball revolvers.  


Under state and federal law, these pistols are NOT considered firearms.  In fact, you can walk right into Cabela’s and buy one sitting in a box on the shelf with no background check.  You can even buy them on the internet and have them shipped to your house.

Unfortunately, DPS doesn’t seem to care what the law says.  In their minds, they don’t want to see Texans exercising their right to carry these pistols openly.  It probably threatens their macho egos seeing that they aren’t the only ones armed, even if it is a slow-shooting, black powder replica pistol.

In response to the arrests this weekend, OCT President CJ Grisham reached out to get an audience with DPS Director Steven McCraw.  In that email, CJ quoted the plain-language law and how DPS Troopers fractured the ribs of one of the OCT members.  Here is the video of that encounter.

Yesterday, CJ received a call from Director McCraw’s Chief of Staff and asked to meet with us Thursday at 1600 to discuss what had happened.  However, today CJ received another email stating that because he is “a defendant in a criminal case at present…and since you are currently represented by counsel, it would not be appropriate for the department to meet with you at this time. Therefore, we will have to cancel the meeting previously scheduled for Thursday, Oct. 31.”

Keep in mind that CJ’s trial ended in a hung jury nearly two weeks ago.  The email then went on to explain that while we can legally carry black powder revolvers openly, they simply don’t like it.  Naturally, that’s a paraphrase.  Here’s what they actually said (with frequent breaks in content to add commentary):

“We have reviewed your comments and direct your attention to the following policy:

Individuals who carry firearms or other deadly weapons in a manner other than under the authority of Subchapter H, Chapter 411 Government Code, are prohibited from carrying on the Capitol Grounds or within the Capitol Building or Extension or other state buildings within the Capitol Complex pursuant to Texas Administrative Code, Title 37, Chapter 3, Subchapter J, Rule   § 3.146 (set out below.)  Individuals subject to Rule 3.146 will be respectfully requested to leave the Capitol Building and Extension and the Capitol Grounds or other state buildings and will be subject to Texas Penal Code § 30.05 (Criminal Trespass) after having received notice to leave.”

There are numerous problems here, not the least of which is the authority of a “peace officer” to disarm.  The magic is in the words.  In 411.207, the code states that officers may disarm “a license holder.”  Since there is no need for a license to openly carry the replica revolvers being carried, there is no authority under this chapter to disarm.  And the rule only applies to “individuals subject to Rule 3.146,” which doesn’t include those of us openly carrying pre-1899 antique or curio replica pistols.  Click on the links; I’m not pulling this out of thin air.

Even supposing that this section gives a “peace officer” authority to disarm our members openly carrying these pistols, they can only do so when “the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.”  When applying the reasonable person standard to a holstered, antique replica pistol, there is no authority to disarm as there is no threat from which the needs to be protected.

Other than those references, there is nothing in Chapter 411 that bars citizens from carrying these weapons.  Subchapter H, quoted above, deals with concealed handgun licenses and isn’t even applicable to this discussion or the issue at large.

I love this next quote from the DPS email:

However, individuals will be allowed to carry long guns or antique or curio firearms manufactured before 1899 or a replica of an antique firearm manufactured before 1899 that does not use rim fire or center fire ammunition throughout the Capitol Complex with the noted security exception of the Capitol Grounds or the Capitol Building or Extension or other state buildings within the Capitol Complex. The open display of such weapons must be in a manner that is not calculated to alarm and is not in violation of some other provision of the Texas Penal Code such as Texas Penal Code 46.05 (Prohibited Weapons).

Gee, DPS.  Thank you so much for “allowing” me to exercise my 2nd Amendment rights!  That’s so noble and brave and charitable of you!  Maybe we’ll “allow” you to wear a uniform and serve us.  But, I digress.


A holstered weapon is IN NO WAY carried in a “manner that is calculated to cause alarm.”  In fact, it’s the LEAST alarming way to carry a weapon.  It should be noted that Penal Code 42.01, Disorderly Conduct, is the section of Texas law where that phrase comes from.

Fun Fact: In nearly every area dealing with the manner in which firearms are carried, where they are carried, and those able to carry them, there is usually an exemption for peace officers and law enforcement officials (and, sadly some others too, like judges).  However, there is no exemption from law under 42.01.  Therefore, if openly carrying a holstered pistol is carried “in a manner calculated to cause alarm,” it serves to reason that citizens can call in complaints against LEOs and they aren’t exempted!

The statute quoted above, Penal Code Section 46.05, identifies “prohibited weapons” as: “an explosive weapon;  a machine gun; a short-barrel firearm; a firearm silencer; a switchblade knife; knuckles (Note: crap! I’m gonna need surgury!); armor-piercing ammunition; a chemical dispensing device; a zip gun; or a tire deflation device.”

That’s it!  There’s no mention of black powder revolvers, rifles, or shotguns.  The email continues:

In summary, weapons other than, properly concealed handguns carried by CHL holders are prohibited on the Capitol Grounds or in the Capitol Building and Extension or other state buildings within the Capitol Complex.  In the remaining areas of the Capitol Complex, individuals may carry and display weapons in a manner consistent with the Texas Penal Code.

Whoa!  What?!  I didn’t read that in any of the statutes quoted so far in this email.  I also didn’t see any exemptions in Chapter 411 of the Government Code that identified the Capitol Ground or the Capitol Building.  So, there must be some other place that gives DPS Troopers the authority to disarm law-abiding citizens, right?  The email continues (emphasis added):


Texas Administrative Code, Title 37, Chapter 3, Subchapter J, Rule § 3.146

(a) Firearms, explosive weapons, illegal knives, clubs, and knuckles, as defined in the Texas Penal Code, §46.01, and prohibited weapons as defined in the Texas Penal Code, §46.06[sic], are not permitted in state buildings or on state grounds covered under these rules, except in the possession of:

(1) a licensed peace officer;

(2) as to a handgun or nightstick, a properly licensed private security officer while working under an approved department contract and the contract authorizes the use of an armed guard; or

(3) as to a concealed handgun, a person who is licensed to carry a concealed handgun, under Texas Government Code, Chapter 411, Subchapter H, provided that such a person may only carry a handgun in a place and under circumstances where not otherwise prohibited by law.

(b) Violations of laws relating to weapons will be prosecuted under the applicable statute. Violations of this section which are not otherwise a violation of a particular statute, will be prosecuted under Texas Government Code, §411.065.

Did you see anywhere in there “deadly weapons”?  I didn’t either.  Did you see anywhere in there pre-1899 antique or curio replica pistols?  So, where does DPS – according to THEIR OWN EMAIL – get their authority?  The areas they quoted don’t provide it.  Penal Code Section 46.01 that defines “firearm” doesn’t give it to them.  Penal Code 46.05 doesn’t list them as prohibited weapons to give it to them.  Penal Code 46.06 that lists places where weapons are prohibited doesn’t give them the authority by specifically mentioning or even referring to the capitol grounds.

So, where does it come from?

It doesn’t come from anywhere because they HAVE NO AUTHORITY to arrest and disarm those of us carrying these pistols.  By sending this email, DPS has admitted they have no authority by quoting areas they claim give it to them when, in fact, they do not.

We have a problem in Austin right now.  We have a group of LAW ENFORCEMENT or PEACE OFFICERS that are neither enforcing the law nor ensuring the peace.  They create the breach of peace.  They violate the law.  They go out of their way to hassle and harass law-abiding gun owners for no other reason – one can guess – than to assert power and authority where it doesn’t exist legitimately.

Section 2 of the Bill of Rights in the Texas Constitution is very clear about where the REAL power is in the State of Texas (again, emphasis added): “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”

DPS Region 7 leaders have usurped authority from the people in violation of the law.  They have invented law where none exists, usurping that authority vested solely to the legislature.

Open Carry Texas will not allow these usurpations to continue unopposed.  We know and understand the law and everything we do is in compliance with every aspect of it, including their silly little administrative “rules.”  We demand DPS Troopers obey their oath to “preserve, protect, and defend the Constitution and laws of the United States and of this State.”

Before I close, allow me to quote one more area of Texas law that we, the People, WILL also obey.  It can be found in Texas Penal Code, Title 8, Chapter 39, Section 39.03.

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor.

We’ve made the law very clear, both here and in person at the Capitol.  Therefore, the Troopers KNOW what the law is and any attempted or actual arrest or deprivation of “the exercise or enjoyment of any right, privilege, power, or immunity” constitutes a violation of law and will be handled accordingly.

And one more statute that DPS Troopers and citizens should be aware of to enforce the law is contained in the Texas Code of Criminal Procedure, Title 1, Chapter 14, Section 14.01:

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

That is all.


13 thoughts on “DPS Willful Ignorance of the Law Starts at the Top

  1. Ben Grady

    Very nice. I agree that DPS have abused their authority by arresting law abiding black powder cap and ball open carriers.

    We the people won’t stand and support an abusive DPS police force.

  2. John Bostick

    Intimidation by law enforcement agencies misrepresenting written code and the bias judicial system to increase revenues actually hinders our ability to a fair trial. Any chance to receive justice has to come from a jury. I think We need legislation that demands compensation for all cost associated with the defense of implied statutes from all entities involved. If your time, attorney, expert witnesses, and inconvenience equal $1,000, all the officers should each be liable for $1000 each, the department head should be liable for $1,000, the department should be liable for $1,000, and the prosecuting attorneys office should be liable for $1000. If the offices had to be accountable for their actions these injustices would stop.

  3. brad balthrop

    If anyone feels they are mistreated by the police, there are plenty of legal options for them to get the officer held accountable. If you’re just looking for a payday, you might want to try provoking some group of people with money, not police officers. Instead of ranting and raving about how you were mistreated and it was an illegal arrest, how about talk about your conversation with the District Attorney’s office for Austin or Travis County. Even better would be the Texas Rangers, since they are the ones that investigate most police officer misconduct. If the Troopers were actually guilty of that level of misconduct it should be a very swift process to get them reprimanded, fired, and convicted under several statutes. Police Officers are held to a higher standard than the average citizen…with good reason. Even though they were being called several curse words and crowded up on, they pushed the crowd back just as far as they needed to to safely handle the situation. Given the excitement of the crowd and the level of resistance to their requests, I applaud them for showing restraint. Some ass hat just saying he’s not doing anything illegal doesn’t cut it. A guy standing around in open carry with any type of handgun is some guy just looking to get arrested to get money or fame. Nothing about expressing the right to carry…It’s all about facebook, youtube, and the benjamins they think they might get if they can provoke a physical altercation with the police.

  4. Jacob w

    Sadly, the only way that this is going to end properly is in court. This DPS dip s**t doesnt understand just how much that he is double talking in his letter. His is never going to change his opinion on his own. Its going to take someone legally ringing his bell before he will wake up and realize the facts.

    1. wayne harper

      Money!! The only way the law doesn’t apply to you is if you have plenty of money. Cook county illinoise is a great example of that. A man was convicted of ARMED ROBERY he got his gun rights back so where is the safety in this. I strongly agree in the Brady law that violent felons should not have guns or fire arms but with enough money you can get away with murder. I know fire arms are drifting off the subject but I was just using this as an example.

  5. awakelive

    It should be noted that carrying a blackpowder handgun as antique or curio means UNLOADED because of the difference in time it takes to load in comparison to centerfire ammo, the moment you carry loaded converts the weapon from curio to a weapon designed to expel a projectile as defined by 46.01!

  6. awakelive

    It should be noted that to be considered antique or qurio the weapon must be UNLOADED, because of the time it takes to load blackpowder versus center or rimfire ammo, if you carry loaded the antique, curio has been converted to a deadly weapon designed to expel a projectile by explosion as defined by 46.01!

      1. awakelive

        There is a HUGE difference between statute law and how it is interpreted by judges, and there interpretation will trump yours every time. All cases are determined by “precedent” and it is weel established case law precedent that a blackpowder pistol is a “handgun” under section 46.02. If you are caught with a blackpowder “handgun” it will be entirely up to the defence to prove by “precedent” caselaw that the pistol is not a handgun under section 46.02, which you will find impossible as there is no such caselaw nor precedent to support your argument and the conviction will stand despite how YOU interpret the law. Your only hope would be that there is no projectile in the pistol to satisfy 46.01 (3) that there is no projectile to expend and you are using it in a purely “display” i.e. Antique or curio fashion, why do you think civil war reinactment only use powder and get away with it? Because it is purely Display i.e. Antique or curio.

        The bottom line for interpretations of a statute lies soley in judges hands, prisons are full of people who interpreted statutes without precedent caselaw to support their arguments. If youknow anything about law you start by precedent NOT YOUR interpretation of statute.

  7. your buddy

    Although the officers may have misinterpreted the law, falsely arrested someone and ignored the facts, the protesters were unruly and not very diplomatic. Not good for “shooting” down gun control. The group should have had the statutes printed and ready to present to the officers instead of raising voices and using profanity. If the officers still failed to obey the law then bail the falsely arrested protester out then make a formal complaint to the proper authorities while informing the media. Don’t make us look bad because you’re heated about the matter. Be cool, be straight and above all KNOW THE LAW AND HOW TO USE IT.

    1. OCTexas Post author

      You get falsely arrested and assaulted and let’s see how you handle being thrown in jail for breaking no laws. Formal complaints go nowhere and civil cases are expensive and difficult thanks to “qualified immunity” so the only place to truly fight for your rights is at the point of them being violated. The truly unruly and undiplomatic were the cops arresting law abiding citizens. Surprised you failed to see that.

  8. wayne harper

    There are no more peace officers just tax collectors who protect the rich and their own kind. Anybody else doesn’t matter. If you get robbed sure they will come out and take a report. And then nothing else happens. You assault or rob one of them or the rich . They will not rest until they hunt you down.


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