Category Archives: Texas Law

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A Comparison of HB 375 and HB 1911

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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:

  1. Be a legal resident of the state for six months
  2. Be at least 21 years of age
  3. Not a convicted felon
  4. 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
    1. “abusive, indecent, profane, or vulgar language” that is inciteful
    2. “offensive gestures” that are inciteful
    3. creating, by chemical means, a noxious and unreasonable odor in a public place
    4. threatening someone in an offensive manner
    5. unreasonable noises
    6. fighting in public
    7. discharging a firearm in public other than a range
    8. display of a firearm “in a manner calculated to cause alarm”
    9. discharging a firearm on a public road
    10. 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!

Misunderstanding Stand Your Ground and the Castle Doctrine

In an effort to keep our members and supporters on a broad array of gun-related topics, we will frequently share posts submitted to us from many different fields of expertise. If you would like to submit an original article or blog post, please send your submission to admin@opencarrytexas.org with the Subject line “Blog Submission.”

barnettKnow your rights and responsibilities before using force for protection in Texas

You may have heard about “standing your ground” in your “castle” against intruders.  Confusing news reports make it seem like the law grants the average citizen complete freedom to use any type of force, including deadly force, as a self-help remedy, whenever one feels threatened.  This is a common misunderstanding of the law.  Understanding the subtle nuances of Texas gun laws could mean the difference between having a justifiable defense at trial and serving time in prison.

In this article, I will discuss what is commonly called the Stand Your Ground Law or The Castle Doctrine in Texas, while highlighting several laws from Chapter Nine of the Texas Penal Code that allow for justifiable defenses at trial when a person uses deadly and non-deadly force.

Using Deadly Force for Self-Defense Purposes | No Duty To Retreat

While there is technically no law titled “Stand Your Ground” in Texas, there are provisions that allow for a legal justification for the use of force in a limited set of circumstances when a person has no duty to retreat. It is important to know when you do not have a duty to retreat, because you really do not want to get it wrong.

Examples:

  • A homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder.
  • A business owner in her own place of business does not have a duty to retreat from her office, and may use deadly force to protect herself from an armed robbery.
  • A truck driver, in his own truck, does not have to retreat and may use deadly force to protect against an armed car-jacking, as Texas law extends a person’s “castle” or home, to his car.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self-defense:

(1) reasonably believed the deadly force is immediately necessary;

(2) had a legal right to be on the property (i.e. did not have a duty to retreat);

(3) did not provoke the person against whom deadly force was used; and

(4) was not engaged in criminal activity at the time the deadly force was used.

The law does not provide a justifiable defense at trial for someone who instigates and provokes a fight, and then uses deadly force.  A person instigating a fight, in most cases, does have a duty to retreat and, therefore, will not be covered by the castle doctrine.  Additionally, to receive the protection of the “no duty to retreat” provision, an actor must have acted in compliance with Texas Penal Code §9.31, the self-defense provision.

Self-Defense Law in Texas

Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker.  The law states, “[a] person is justified in using force against another when…the actor reasonably believes the force is immediately necessary to protect…against the other’s use or attempted use of unlawful force.” If the actor knew that intruder “unlawfully with force entered” his home, vehicle or place of employment; or if the actor himself was being removed (i.e. kidnapped); or if the intruder was attempting to sexually assault, rob, kidnap, or murder, then a person may use deadly force in self-defense under Texas law.

In contrast, the use of force is not justified in verbal provocations.  Additionally, a person may not resist a reasonably conducted arrest by law enforcement and be justified in using force under this provision.  Further, if an actor provokes a physical altercation and does not abandon the encounter, he may not use deadly force for self-defense as a justifiable defense at trial.  

The Difference Between Deadly Force and the Threat of Force

The Texas Penal Code very clearly delineates between deadly force and the threat of using force.  Deadly force is not the same as the “threat” of force.”  Section 9.04 of the Texas Penal Code provides that a threat to cause death or serious bodily injury by the production of a weapon, if the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.” Displaying a weapon with the goal of creating apprehension is considered a use of force, but not deadly force. 

To illustrate, imagine a landowner is on his own property and sees a trespasser running towards him.  If the landowner decides to turn in such a way so that the trespasser sees the landowner’s holstered, loaded gun and runs off the property, Texas law says this is likely a justifiable showing of force, and is not the use of deadly-force itself.

Defense of a Third Party | Defense of Others

A person is justified in using force or deadly force to protect a third party if, given the circumstances, the actor would be justified in using force or deadly force to protect himself against the unlawful force or deadly if it were happening to him.  Further, the actor must reasonably believe the intervention is immediately necessary (i.e. He can’t wait until the police arrive).

However, if in the use of force to protect an innocent third party, another is injured or killed, the “justification afforded by [TPC 9.33] is unavailable in a prosecution for the reckless injury or killing of the innocent third party.”

Protection of One’s Own Property

In Texas, force may be used to protect one’s own property.  A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…”  However, the use of deadly force to protect one’s own property is limited.  “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement].  Tex. Penal Code Section 9.42.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few “stand your ground” and “castle doctrine” type provisions, justification for use of force and deadly force must be proven, under a very limited set of circumstances.  Further, even if a person has a justification for using force, he may still be arrested and face trial—these justifications are not a waiver of court proceedings altogether.  A court of law must determine that an actor had legal justification to use force.  Moreover, even though an actor may have been justified in using force—deadly or non-deadly—

he may face civil litigation and penalties associated with the use of force against another.

Using force for self-defense purposes is a serious response to dangerous and threatening situations.  Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have acted under the circumstances.

About the Author

Brandon W. Barnett is a criminal defense attorney and U.S. Marine officer.  He is a partner with the Fort Worth criminal defense law firm, Barnett Howard & Williams PLLC. He is also an adjunct professor of Military Justice at Texas A&M University School of Law in Fort Worth.  To learn more about Mr. Barnett or Barnett Howard & Williams PLLC, visit https://www.bhwlawfirm.com.

 

Opinion: DPS Has No Authority To Arrest

I’ve been doing a lot of research since two of our members were assaulted and falsely arrested by DPS troopers at the Capitol a few weeks ago. Besides the law that we already are aware wasn’t broken with respect to having BP pistols, I found some other interesting tidbits of law that I think support our assertion that DPS is overstepping its bounds.

The State Preservation Board is an agency of the state. Among its responsibilities is to “adopt rules concerning the buildings, their contents, and their grounds.” Additionally, “the board may allocate specific duties and responsibilities to any other state agency, if the other agency agrees to perform the duty or accept the responsibility.”

Section 443.018 of the Government Code allows the Board to regulate visitors and vendors to the capitol under certain circumstances.

Sec. 443.018. REGULATION OF VISITORS AND VENDORS. (a) The board shall adopt rules that regulate the actions of visitors in the Capitol or on the grounds of the Capitol.

(b) The rules adopted under Subsection (a) shall include rules that:

(1) prohibit persons from attaching signs, banners, or other displays to a part of the Capitol or to a structure, including a fence, on the grounds of the Capitol except as approved by the board;

(2) prohibit a visitor from placing furniture in the Capitol or on the grounds of the Capitol for a period that exceeds 24 hours except as approved by the board;

(3) prohibit the setting up or placement of camping equipment, shelter, or related materials in the Capitol or on the grounds of the Capitol except as approved by the board;

(4) prohibit actions that block ingress and egress:

(A) into the Capitol building; or

(B) rooms or hallways within the Capitol building, except as approved by the board;

(5) prohibit actions that pose a risk to safety;

(6) provide that members of the public must leave the Capitol when the building is closed to the public;

(7) provide that all pets except Seeing Eye dogs are not permitted in the Capitol, and shall be restrained at all times on a leash or similar device in the immediate control of the owner while on the grounds of the Capitol, except as approved by the board;

(8) prohibit the use of skateboards, rollerblades, and rollerskates in the Capitol or on the grounds of the Capitol; and

(9) prohibit a vendor or commercial enterprise from operating in the Capitol or on the grounds of the Capitol unless the vendor or commercial enterprise is authorized to do so by the board.

(c) A person commits an offense if the person violates a rule of the board adopted under Subsection (a).

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

(e) This section may not be applied in a manner that violates a person’s rights under the Texas Constitution or the First Amendment to the United States Constitution, including the right of persons peaceably to assemble.

(f) The board shall send proposed rules under this section to the attorney general for review and comment before the board adopts the rules.

DPS claims that they have the authority under law to create rules with an eye towards safety. However, these rules “may not be applied in a manner that violates a person’s rights under the Texas Constitution.” Our Texas Constitution recognizes the rights of citizens to keep and bear arms under Section 23 of the Bill of Rights.

Sec. 23. 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.

Texas Government Code Section 411.062 gives DPS “primary responsibility for law enforcement and security services on the Capitol Complex.” It also give DPS authority “to adopt rules relating to security of persons and access to and protection of the grounds, public buildings, and property of the state within the Capitol Complex, except that public use of the capitol, the capitol extension, the capitol grounds, and the General Land Office building shall be governed by the State Preservation Board.”

DPS may enforce the rules of the State Preservation Board that are published in the Texas Administrative Code. However, these rules, again, must not violate the constitutional rights of Texans and visitors.

If you look back at Section 23 of the Texas Constitution, only the LEGISLATURE has the authority to “regulate the wearing of arms” and then only “with an view to prevent crime.” The Constitution vests no authority in DPS or the Texas Preservation Board to adopt rules that govern the wearing the arms.

DPS likes to point to the Administrative Code Rule 3.146 that states firearms are prohibited on Capitol grounds. While I believe this rule is unconstitutional as it wasn’t a law passed by the legislature to “regulate the wearing of arms” the rule still only applies to firearms as defined in Texas Penal Code Section 46.01.

(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

Never mind that the Rule, as written, misquotes the law. 3.146 addresses “prohibited weapons as defined in the Texas Penal Code, §46.06.” The problem is that Texas Penal Code, §46.06 doesn’t address prohibited weapons. That is §46.05. §46.06 addresses the “unlawful transfer of certain weapons.”

The problem that DPS has is one of a constitutional nature, both the Texas and US constitutions. 3.146 only regulates “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]” on state grounds.

If you notice, “deadly weapons” are not expressly mentioned. It is not inferred or implied either. Under the Texas Penal Code, a deadly weapons is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury”…or…”anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

Knowing the statist mentality of the Capitol DPS leadership, I have no doubt that they will try to get the rules changed so that these officers are the only ones armed. Patrick Henry warned about this mentality in 1775 as King George I began confiscating powder kegs and arms. He posited the following observation on why government doesn’t want us carrying arms: “They tell us that we are weak — unable to cope with so formidable an adversary. But when shall we be stronger? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Three million people, armed in the holy cause of liberty, are invincible by any force which our enemy can send against us.”

DPS and other law enforcement entities that continuously call for the systematic disarming of the populous claim to do so in the interests of safety. What they fail to realize is that where there are firearms, there IS safety.  Thomas Jefferson is credited as saying, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”

A few weeks ago, over 1200 armed individuals converged on the front lawn of the Alamo in San Antonio. Nearly all weapons were loaded (though none were chambered). If guns endanger safety, no place in the country would have been as dangerous as downtown San Antonio that beautiful Saturday in October. However, no one was threatened, injured or killed. No one was robbed, raped, or beaten.

The Supreme Court of the United States has ruled on numerous occasions that the right to keep and bear arms is an individual right, not a collective one. We have seen throughout US and world history what happens to an unarmed society. When the government is the only entity with arms, its dictates cannot be opposed. Similarly, a disarmed populous is at the mercy of an armed criminal one. Society becomes one of victimhood and it seems like DPS is perfectly happy with that as the status quo.

Because the law does NOT bestow to DPS the authority to disarm citizens carrying black powder pistols, nor does it have the authority to force citizens off public property. The City of Austin tried citing Occupy Austin members after ordering them to leave public property and lost a major lawsuit. Citizens have a right to the use of public property as long as they don’t restrict the use of that property to other people. The capitol complex is no different.

This post is not meant to be viewed as an interpretation of law. It is written for purely informational purposes.

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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.  

cap-and-ball

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.

opencarry

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):

AUTHORITY:

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.

The Elephant In The Room

opencarryYesterday, three more OCT members were cited under Penal Code Section 42.01(a)(8) in Austin. This comes on the heels of three individuals in San Antonio being cited under the same offense for lawfully carrying openly according to Texas law and the Constitution.

The Penal Code reads, “DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly…(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.”

I’ve highlighted several aspects of this law that law enforcement seem to be intentionally ignorant of. Chapter 6 of the Penal Code defines these words as such:

INTENTIONALLY: “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

KNOWINGLY: “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

The open carry of rifles and shotguns is perfectly legal in Texas. There are no laws that regulate the keeping or bearing of these arms. Section 42.01(a)(8) does mention that such weapons cannot be carried in a “manner calculated to cause alarm.” So, a person has to consciously be aware that his/her conduct is “calculated” to cause alarm. The problem that law enforcement and their statist enablers in the district attorneys offices are going to have in the courts is that we are very clear that our objective is to educate, not alarm. In other words, we are only KNOWINGLY and INTENTIONALLY engaging in conduct meant to raise awareness and educate. By definition, that is our goal with all OC activities.

We’ve just proven the only thing we “knowingly” and “intentionally” do is educate. The rest of 42.01 does not say that education is considered “disorderly conduct” so there is no offense. However, some law enforcement agencies are charging us under (a)(8), so the next test is whether what we are “knowingly” and “intentionally” doing is “calculated” to induce alarm. The Penal Code does not define calculated. In such cases, the law reverts to the commonly used definition of the term. In this case, “calculated” means “made or planned to accomplish a certain purpose; deliberate” or “deliberately planned; premeditated.”

The state has three very difficult obstacles to overcome when charging someone with a 42.01(a)(8) violation with regards to open carry. So, the next place we look to is the case law.

There aren’t really many cases dealing with this particular section of the Penal Code. The legal encyclopedia Texas Jurisprudence isn’t particularly helpful either. But, there are cases that deal with displaying a weapon in a manner calculated to cause alarm.

In the Jones v. State case, George Earl Jones was charged under the Disorderly Conduct statute in that he “did then and there unlawfully intentionally and knowingly display a deadly weapon, namely, A KNIFE, in a public place and in a manner calculated to alarm.” Jones followed his ex-wife (or girlfriend) into her place of employment to talk to her, but she wouldn’t talk to him. He pulled out a knife and made a slashing gesture with his fingers across his neck. Jones argued that the State did not prove that, when he pulled out the knife, he had the culpable mental state to alarm anyone. The court responded that “a defendant’s intent may be determined from his words, actions, and conduct.” This is key because the state is trying to prove that by openly carrying a firearm we are intentionally causing alarm. However, our “words, actions and conduct” are not such that any reasonable person could infer such intent. This case is the most recent case dealing with a weapon (1999).

There is another, unrelated (or perhaps a distant family member), case called Jones v. State (130 S.W. 1001 (Tex. Crim. App. 1910)) from 1910. In this case, G.J. Jones was convicted of carrying a pistol openly onto a public road. The difference in this case and why it doesn’t apply to our open carry of rifles is that in 1910 it was illegal to openly carry a pistol. Texas was just getting over the cowboy justice days and only peace officers were permitted to openly carry a pistol. The case law doesn’t say exactly what he did – whether he had it holstered or was brandishing it. The court ruling just notes that Jones “had no right to go into the public highway upon land the fee of which rested in him and disturb the peace, either by loud and vociferous talking or displaying a weapon.” The court went on to clarify that “no person, unless he be a peace officer, not even the owner of the premises, can go into a social gathering and carry on or about his person a pistol, without violating the provisions of this article.” So, in this case, Jones was directly violating the law to have a weapon at all in public at the time. It is worth noting that all of this case is before concealed carry existed in Texas, and it was illegal in general to carry a pistol anywhere in public.

Perhaps the best case law with regards to the Disorderly Conduct charge is the Grieve v. State case in 2008.  In this case, someone called the police after seeing a man on his balcony with what appeared to be a pistol.  The police were called and responded to the apartment of the suspect.  While in the house, the officers smelled marijuana and Grieves was subsequently also charged with drug violations.  The appellant, Christopher Scott Grieves,  appealed to suppress the drug charges because the officers didn’t have probable cause to search the apartment.  The court ruled that, “Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun “displayed” on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm.”  This case alone is proof that merely HAVING a gun displayed legally in public does not constitute Disorderly Conduct.

Our best chance is to defeat the required mens rea. Mens rea is a latin legal term defined as “an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.”

As we’ve already noted, Tex. Penal Code § 42.01(a) states that: “A person commits an offense if he intentionally or knowingly…” then § (a)(8) states: “displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.” That second phrase “in a manner calculated to alarm” requires that the state not only prove that you carried a rifle, but that you did so in a manner calculated to alarm. It is not automatically assumed that carrying a rifle can only be done in such a manner.

This especially seems to be backed up by the fact that Tex. Penal Code § 46.02: Unlawful Carrying of Weapons, applies only to handguns, illegal knives, or clubs. Rifles and shotguns are blatantly omitted from the statute. The question then becomes whether one actually did alarm someone, as in did someone call 911? And even if so, was that person reasonably alarmed? The burden of proof as to one’s mental state for “intentionally” or “knowingly” seems to be the key.

“If the officer use excessive force and violence upon such person, such person being where he has a right to be, he may repel force by force, and if, in the reasonable exercise of self defense, he kills such officer, he is justifiable.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.”Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197).

Disclaimer: This post is not designed or intended to be used as legal advice. We are not attorneys and make no guarantees about our interpretation of case law and Texas Penal Code. This post in intended to be used purely for informational purposes.

So You Want to OC in Your Area

Open Carry Texas has been growing by leaps and bounds. I would venture to say we average about 30 new members every day – not bad for a fairly new organization. One of the frequent questions I see on our Facebook group is “where do I start?” Hopefully, this post will help you get started and keep you out of legal trouble. Please keep in mind that this isn’t legal advice in any way. This information is presented based on experience and personal inspection and study of Texas statutes.

Before I even get started, I think it’s important to put on your suit of armor. Not literally, but figuratively. You don’t get behind the wheel of a vehicle without making sure you have insurance, so why would you strap on a gun without the peace of mind that should you get hemmed up you’ll be taken care of? There are several companies out there that I personally recommend and use. You’ll have to do your own research about which one will best suit your needs, but you’re taking a major gamble as a gun owner not having at least one of them. Trust me. As a law-abiding citizen that never so much as had a cop look at me crossways prior to my arrest, I never thought I’d end up in jail for nearly 11 hours facing a charges for lawfully carrying my gun.

The first company I recommend is call the National Association for Legal Gun Defense (NALGD). With a membership through NALGD, you have a $1 million guarantee of legal coverage. This coverage covers you in the event that you need to defend yourself with anything including, but not limited to, firearms, stun guns, or pepper spray. This program not only pays for attorney’s fees, but also covers more than just one attorney if needed. They cover both criminal and civil litigation, provide expert witnesses and private investigators if needed, and even help with the bail bond – everything you need to defend yourself against a tyrannical and oppressive justice system. Membership includes access to a huge library of DVDs, courses and books online to help educate yourself on self defense and the law. The library also includes manuals for just about any gun you can think of and how-to videos in dealing with gunshot wounds. Coverage is good in all 50 states, so you aren’t tied down only having peace of mind at home. Coverage is only $12.50 per month or $150 annually. If you choose to join NALGD, please use promo code “135278.”

The second company is called US Law Shield. They are in nearly every state and you may recognize them by the name Texas Law Shield. If you are a member of the Texas Law Shield Firearms Legal Defense Program and you “use” a firearm in Texas, their lawyers will represent you in any legal proceeding (criminal or civil), for zero additional attorneys’ fees. This involves any legal manner of using a firearm whether it involves merely carrying it or using it for self defense. They have a 24/7/365 attorney-answered hotline so when you call them you are talking to your lawyers. They also provide periodic updates on laws effecting gun owners’ rights and changes in firearms law. A key component of their firearms program is education. Plans start at about $7.50 per month for single, non-CHL holders to about $20 per month for a CHL-holding couple. If you go with Texas Law Shield, please use promo code “opencarry.”

The final company we recommend is Legal Shield. Of the three, I believe that Legal Shield has been around the longest to offer pre-paid legal services. The main difference with Legal Shield is that they are are not nailed down to just providing gun owners with peace of mind. They handle most any legal need, from traffic accidents to more serious issues requiring legal assistance. From their website: “LegalShield not only provides legal services in 49 states and 4 Canadian Provinces; but also it provides confidence and peace of mind for families everywhere. For one low monthly fee our members gain access to quality law firms without having to worry about high hourly costs. Because our attorneys are all paid in advance, they provide the same level of service for trivial or traumatic legal situations.” Plans range from about $17-50 depending on what kind of coverage you think you need.

Ok, so now that you’re protected, it’s time to leave the house and exercise your rights! The only rights you have in this world are the rights you’re willing to fight for and exercise. So, strap on your gun and head out the door. But, first, make sure you do a few things.

While it’s by no means required in Texas, make sure your weapon has a sling on it and carry the weapon slung instead of in your hands. Having a rifle or shotgun in your hands no matter where you go sends the wrong message to the public. Generally, the only people that carry a weapon in their hands are people that are intent on using it – usually not for good purposes. Having the weapon slung across your body or shoulder shows that you are not a threat to anyone. Texas law does not regulate the carry of longarms, except to prohibit them from being carried “in a manner calculated to cause alarm.” You can read the full law on our law page here. Court precedent has interpreted this to mean that the firearm is pointed or waved at someone in a threatening manner. There is not a single case that we can find of someone being found guilty of this simply by carrying the weapon legally. We recommend that you carry the weapon across your back with the barrel down and on safe. If you have a bandoleer sling, we recommend that you don’t use them during OC events. While not a normal occurrence, there is a likelihood that bullets or shells could fall out of the bandoleer and accidentally fire upon landing. It also makes us look unsafe and unfocused on safety when those things happen. Also, don’t leave the house without some ability to record ANY encounter you will have with police. This is for YOUR safety, even if the encounter is completely friendly and non-confrontational.

If this will be the first OC in your area, whether alone or with others, we recommend that you call the police chief and sheriff to notify them of your intentions. This allows law enforcement leaders to inform their patrol and dispatch personnel in case someone calls. Sometimes, they will assign an officer to keep an eye on you throughout your walk. Don’t be worried about these as they could come in handy should some anti-gun lunatic try to make trouble by calling 911 and weaving lies that you were pointing your weapon at people or some other threatening act. There are a number of responses that LEOs will give to your announcement and they range from “if you do it, we will arrest you” to “no problem, thanks for letting us know. Be safe.”

If you are told you will be arrested, do not let this hinder you. You are NOT breaking the law – the police are. Politely inform them that you are not asking permission, but informing them you will be engaging in a legal activity and any attempt to violate that will result in a civil lawsuit and criminal charges. Remind them that it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency and the FBI aggressively investigates these crimes. Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. It may be helpful to quote this to the supervisor with whom you speak.

When you call law enforcement, tell them approximately how many are in your group and the general area in which you’ll be walking. You are not required to tell any specific information relating to the weapon you are carrying, to include serial numbers or models. Just tell them you will be lawfully carrying a rifle or shotgun to draw awareness to Texas open carry laws and educate the public that the sight of a gun isn’t something to fear. Remember, an armed society is a polite society. After one or two OC walks, you shouldn’t need to call them anymore, but that is up to you. The 4th mission of OCT is to “foster a cooperative relationship with local law enforcement in the furtherance of these goals with an eye towards preventing negative encounters.” While we want to foster that positive relationship, we will not allow our rights to be violated and will, in fact, demand they be respected. Remember that you are master, not the servant.

Once you’re lawyered up, grabbed your camera, and informed law enforcement, do a quick map search to ensure that you won’t be going near sensitive areas. It’s good to avoid walking near schools, airports, post offices, and other federal buildings. Plan your route accordingly.

Finally, don’t wear clothing that would draw negative attention to you. For example, don’t let your pants hang down to your ankles and don’t wear “F*** the police” shirts or other offensive clothing. If possible, try to avoid wearing sun glasses or hats that conceal most of your face. If people can see your eyes, they tend to feel more comfortable. Do not wear militant clothing, like full battle rattle, to include ballistic vests, web gear, etc. Try to be as approachable as possible so people feel comfortable asking you what you’re doing. You attract more bees with honey than vinegar, the saying goes.

When/if approached by law enforcement, try to be as courteous as possible. A good rule of thumb is that you give the same respect to them that they give to you. It’s not disrespectful to stand up for your rights. If the LEO gets snippity or authoritarian try to stay calm and continue to insist they respect your rights. There is no need to present ID if they do not suspect you of a crime, but that is up to each individual person’s comfort level. It can be daunting to stand up to an abusive LEO, but you have the law on your side.

It’s best to completely know the law and be able to articulate it to whomever you come in contact. If you’re going to OC, you have to expect that there are many that don’t know the law, including law enforcement. If you can’t articulate your rights and the law, you will lose in the streets. Police officers don’t take the time to learn the law and some simply don’t care! If you encounter an officer that point blank tells you he doesn’t care about the law and doesn’t think you should be walking with a rifle, call the department immediately and ask to speak with a supervisor. Or, revert to the membership card the above companies will send you and give them a call immediately. Handing the phone to an officer and telling him your attorney would like a word with him changes minds quickly.

If you have any other questions, please send them to us on our Facebook page (here or here) or use the contact form on this site. I hope this helped somewhat.

Laws Affecting TABC-licensed Businesses

UPDATE: There are differing views in both legal and law enforcement circles about whether or not open carry of longarms is permissable in TABC-licensed facilities. While the signs posted in businesses that sell or distribute alcoholic beverages specifically state they apply to the “unlicensed posession” of firearms, the regulation itself doesn’t make that distinction. It applies to the “any firearms,” which would seem to include rifles and shotguns. My advice is that until there is a thorough legal review members don’t put licensees in that position to potentially lose their licenses. I have requested an AG opinion on the issue. – CJ

We are all aware about the 51% signs on businesses that earn that percentage or more of their income from alcohol and what that means to gunowners. According to Texas law, no guns – concealed or open – are allowed on the premises of those establishments. The signs are posted in red letters. But, do you know the law as it pertains to the blue signs of businesses that serve alcohol under a Texas Alcoholic Beverage Commission license? There are some misconceptions and misunderstandings so I want to clear them up.

According to the Alcoholic Beverage Code (what if you’re not an alcoholic?), a TABC license holder could lose their license if they allow someone to openly carry a firearm on their premises.

SUBCHAPTER C. CANCELLATION AND SUSPENSION OF PERMITS
Sec. 11.61. CANCELLATION OR SUSPENSION OF PERMIT.


(e) Except as provided by Subsection (f) or (i), the commission or administrator shall cancel an original or renewal permit if it is found, after notice and hearing, that the permittee knowingly allowed Texas Alcoholic Beverage Code (2012) 34 a person to possess a firearm in a building on the licensed premises. This subsection does not apply to a person:
(1) who holds a security officer commission issued under Chapter 1702, Occupations Code, if:
(A) the person is engaged in the performance of the person’s duties as a security officer;
(B) the person is wearing a distinctive uniform; and
(C) the weapon is in plain view;
(2) who is a peace officer;
(3) who is a permittee or an employee of a permittee if the person is supervising the operation of the premises; or
(4) who possesses a concealed handgun of the same category the person is licensed to carry under Subchapter H, Chapter 411, Government Code, unless the person is on the premises of a business described by Section 46.035(b)(1), Penal Code.

Because the code specifies “firearms” and doesn’t differentiate between pistols and longarms, all firearms except legally concealed pistols are barred from entering the building. OCT spoke with the TABC inspectors and was told that the code prevented firearms from even being in the parking lots, but as you can see here it only applies to the building itself.

If you go into a business and you see the following sign, please do NOT openly carry a firearm into the building. The business could lose its license and the owner could also be charged. These signs usually have the blue lettering while the 51% signs have the red lettering. While they don’t prevent YOU from going to the business, their license require that they ask you to leave.

TABC-Unlicensed-Sign