Law enforcement across the state are gearing up to harass you for lawful open carry just for exercising your rights thanks to a spineless House of Representatives. The Department of Public Safety is actively telling them they have that authority and Chief Law Enforcement Officers are likewise pushing this mindset to their troops on the line.
During debate of House Bill 910, Representatives Matt Rinaldi (R) and Harold Dutton (D) offered an amendment that would have protected Texans who chose to open carry their handguns. The concern was that law enforcement would harass law abiding citizens going about their normal daily businesses solely based on the act of open carrying. To address this issue, two amendments were offered – one in the House and one in the Senate. The amendment passed near unanimously on a 133-10 vote in the House, with those “no” votes being Democrats. They wanted to make clear that in passing this bill, law enforcement had no authority to stop and ID Texans SOLELY based on the act of open carrying a holstered handgun.
When the bill got to the Senate, the Rinaldi/Dutton amendment was stripped in Senator Joan Huffman’s State Affairs committee. Senator Don Huffines successfully reattached the amendment during the full Senate debate. Or so he thought. In the Senate, the amendment passed on a razor thin margin of 20-11, with three “Republican” Senators attempting to kill the amendment – Joan Huffman, Craig Estes, and Troy Fraser. With both chambers passing their amendment, it appeared as if it was a done deal and the House version had been restored, but our “conservative, pro gun” legislature had other ideas.
What happened? When the Senate added the Huffines Amendment, there was a slight difference in wording from the original Rinaldi/Dutton amendment that was passed in the House.
Here is the House version that passed near unanimously: “A peace officer may not make an investigatory stop or other temporary detention to inquire as to whether a person possesses a handgun license solely because the person is carrying a partially or wholly visible handgun carried in a shoulder or belt holster.”
Here is the Senate version that passed: “A peace officer may not make an investigatory stop or other temporary detention to inquire as to a person’s possession of a handgun license solely because the person is carrying in a shoulder or belt holster a partially or wholly visible handgun.”
To normal people with brains, both amendments say the exact same thing. But, to a legislature that doesn’t really care about liberty and wants to micromanage every aspect of your life and prop up the police state, the language between the two are worlds apart! It didn’t help that law enforcement unions and anti-gun police chiefs were in a full blown, nuclear meltdown at the loss of power to harass law abiding citizens.
So, what happened is that since the version the Senate approved was different than the version the House approved, the House needed to vote to either concur with the Senate version and send it to the governor for signature or move it to a conference committee to hammer out the differences. Remember that near unanimous House that voted to approve the near identical amendment? They caved to political pressure. Their spines shattered and were replaced with yellow stripes and a white flag of surrender.
These are the legislators who voted against your 4th amendment right to be secure in your persons, papers and effects. If their name is BOLD it means they voted against the Rinaldi/Dutton amendment and the motion to concur with the Huffines amendment. In other words, if their name isn’t in caps, they played the old “I voted for it before I voted against it” game and sold us out when it counted the most. Keep in mind that, according to sources in the legislature, the NRA/TSRA was threatening these spineless Republicans to vote no on the Senate version that would have sent the bill directly to the governor and protected law abiding gun owners from police harassment based solely on open carry.
This is why we are having the problem we are having today. This is why there is so much angst, anxiety, and confusion about whether cops can stop and demand ID. If any of these guys is your Representative, start looking at their competition and finding someone better to replace them.
Alma Allen (D); Roberto Alonzo (D); CAROL ALVARADO (D); RAFAEL ANCHIA (D); Anderson, Charles “Doc” (R).; Jimmie Don Aycock (R);Diego Bernal (D); Cesar Blanco (D); Dwayne Bohac (R); Dennis Bonnen (R); Greg Bonnen (R); Cindy Burkett (R); Garnet Coleman (D); NICOLE COLLIER (D); Byron Cook (R); Tony Dale (R); Sarah Davis (R); Yvonne Davis (D); Joseph Deshotel (D); Joe Farias (D); Marsha Farney (R); Jessica Farrar (D); Allen Fletcher (R); James Frank (R); Rick Galindo (R); Charlie Geren (R); Helen Giddings (D); Craig Goldman(R); Larry Gonzales (R); MARY GONZALEZ (D); Bobby Guerra (D); ROLAND GUTIERREZ (D); Patricia Harless (R); ANA HERNANDEZ (D); Abel Herrero (D); Donna Howard (D);
Celia Israel (D); ERIC JOHNSON (D); Ken King (R);Phil King (R);
Linda Koop (R); Lyle Larson (R); Marisa Marquez (D); Trey Martinez Fischer (D); Morgan Meyer (R); Borris Miles (D); Doug Miller (R); Ina Minjarez (D); JOE MOODY (D); Geanie Morrison (R); Sergio Munoz (D); Jim Murphy (R); Elliott Naishtat (D); Poncho Nevarez (D); Gilbert Pena(R); Joe Pickett (D); Four Price (R); Ron Reynolds (D); Debbie Riddle (R); Eddie Rodriguez (D);
Justin Rodriguez (D); Ramon Romero (D); Toni Rose (D); Kenneth Sheets (R); JD Sheffield (R); Wayne Smith (R); John Smithee (R); Phil Stephenson (R); Ed Thompson (R); CHRIS TURNER (D); Scott Turner (R) – yes the same Scott Turner that was supposed to be the “pro-liberty” alternative to Joe Straus; Jason Villalba (R); Hubert Vo (D); Armando Walle (D); GENE WU (D); John Zerwas (R).
In passing these bills, both chambers had legislative intent reduced to writing in the hopes it would put law enforcement on notice about what the law means. This first came up in the Senate in an exchange between Senator Van Taylor and Senator Craig Estes. The “legislative intent” couldn’t have been clearer in the Senate in passing this bill:
Senator V. Taylor: Thank you, Mr. President. Senator Estes, I just want to be clear about the law. Whether or not this amendment goes on, it is my understanding that someone who is doing something that requires a license, that police may not stop them to verify that they have a license. Is that your understanding?
Senator Estes: Yes, Senator. I am advised that that is settled constitutional law.
Senator V. Taylor: Okay. So, the law of the land, the law of America, if someone is doing something that requires a license, a police officer cannot stop that person and say, I want to see your license, whether it’s driving a motorcycle or a commercial vehicle or a car or whatever that activity may be.
Senator Estes: Unless they have reasonable suspicion.
Senator V. Taylor: Okay, so reasonable suspicion that a crime is being committed. Correct?
Senator Estes: That’s correct.
Senator V. Taylor: And so, carrying, openly carrying a handgun, if they see someone, that does not constitute probable cause?
Senator Estes:If this law is enacted.
Senator V. Taylor: Right, if this law is enacted.
Senator Estes:Yes. That s correct.
Here is the conversation on the same topic that took place in the House when the amendment was stripped and the House was voting to agree on concurrence.
Representative Dutton: But let me ask you a question. If a person is exercising their right to lawfully carry a weapon openly and the police walk up to them and say do you have a license? Does the person have to respond at all?
Representative Phillips: I don t believe so, under the Constitution.
Representative Dutton: Right, so if the police officer asks to see your license, does a person have to respond?
Representative Phillips: Let me back up. If they have stopped them for a lawful reason—
Representative Dutton: Yes, I should have said that. I should have laid the predicate for it. My question has to do with—I’m just standing on the corner, and I’m wearing a weapon openly, and the police drive up. I’m not doing anything else. Does a person have to respond to an inquiry by the police as to whether or not they have a license?
Representative Phillips: I don’t believe so, if they don’t have a legitimate reason to stop them. What I would say is that most of us that would be carrying would gladly respond yes. But the question is, if the sole reason is just to come ask me that, no. If they’ve stopped me for a traffic offense, if they’ve stopped me, they certainly have a right to. The law is very clear. If you’re lawfully stopped, you have to show it. Very clear.
Both chambers of the 84th Legislature made clear that open carry, with or without the amendment, was not reason, in and of itself, to stop and demand to see one’s ID or license. Yet, DPS, leaders in law enforcement, and anti-gun prosecutors are spreading the word that it’s open season on open carriers in Texas.
So, what are you supposed to do if a cop comes up and demands to see your license while you’re minding your own business and happen to be open carrying? There are two opposing legal arguments about this issue so what you do depends on you. If you don’t want to be arrested by an overzealous cop who forgot he took an oath to defend your rights, produce your license to carry and you’ll be on your way. If you have the resources to fight our unconstitutional law and add some 5th Circuit case law to what is already established in the 4th and 6th, politely refuse and allow yourself to be arrested. However, be warned: if you choose this path be prepared to lose your gun until the court case plays out which may take years. You may be forced to post a bond that is non-refundable. And you will end up paying tens of thousands in court costs until the 85th Legislature fixes what the 84th broke and passes a law to protect law abiding gun owners.
Of course, that depends on who you elect to represent you next year! We already have a bill ready to go.