30.06 Signs and Vehicle Carry

We recently had a question sent to us about whether a business could put up a 30.06 or 30.07 sign up at the entrance to a parking lot. The question was whether they could ban the entire parking lot from open or concealed carry. The answer is “yes” and “no.” Let me explain.

We’ll begin with Government Code Section 411, which is what governs who is “eligible” to carry a self-defense firearm. There are certain requirements and criteria for who can and cannot carry. There are also proficiency and training requirements prior to being issued a government permission slip to carry. This section deals specifically with licensing and does not address concealed carry in a vehicle. It is the predicate for most other laws dealing with self-defense carry and provides the means to do so.

In 2007, the 80th Legislature pass the Motorist Protection Act. This bill amended Penal Code Section 46.02. This is the section of Texas law that violates our state and federal constitutions and makes ALL carry illegal except for those given permission to break the law after being issued a license. However, there are two instances where the law doesn’t apply. Those are:

(1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

Section 46.15 previously exempted someone who “is traveling” from the 46.02 ban, but the MPA clarified this because it was being enforced differently. What does “travel” consist of? Some departments were putting a minimum mileage requirement. Others said it applies to travel outside the county. Still others put time requirements on one way travel. Either way, current law states that anyone who lawfully possess a handgun can have that handgun in a vehicle without a license provided it is concealed. And, as of January 1, 2016, you can have an openly carried handgun in a vehicle provided it is in a “belt or shoulder holster” that is carried “on or about the person.”

Now that we have the law laid out, let’s get to the meat of the question. Can a business ban guns on their entire property. First the “no.” Labor Code Section 52.061, which was passed in 2011, specifically protects EMPLOYEES’ right to have a handgun in their vehicles if they are licensed.

A public or private employer may not prohibit an employee who holds a license to carry a handgun…who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.

However, it would seem that the law does not specifically protect all OTHER gun owners from having a gun in the parking lot of a business.  This was made clear as mud during discussion on the bill in 2011 on whether it applied to everyone and the entire property. It seems as if the legislative intent was to include everyone, but the words didn’t. Here’s a little bit of that discussion:

REPRESENTATIVE BURNAM: This amendment simply addresses the concern that I was raising in my point of order. If you look at the definition in the Penal Code, which is the last section of the bill as filed, it is much more comprehensive than what the bill’s been represented. So, this amendment is intended to simply do what the bill analysis said it was going to do, which would allow what the author of the bill is trying to accomplish without allowing them to take guns on other parts of the grounds, of the campus, of the facility, of the business. Move its adoption.

REPRESENTATIVE KLEINSCHMIDT: Members, the statutory language used to define premises is in the Penal Code, it’s out there, it’s been used. To add another term or premises in the law today just doesn’t get us anywhere. It’s not practical. It just leads to more questions in the statute. Penal Code’s got a good definition.

BURNAM: On the Penal Code—it s defined, is that not correct, in the senate bill? Or it’s referred to.

KLEINSCHMIDT: —refers to the section of the Penal Code that defines premises.

BURNAM: Right, and in the Penal Code, the way they define premises is strictly the building—that s not applied to the grounds, the sidewalks, the picnic areas, or any other aspect of the facility. Is that correct?

KLEINSCHMIDT: I believe that s correct—does not include the parking lot.

BURNAM: So, I don t understand. All I ’ m trying to do is better define what you ’ say in your bill analysis you re trying to do, to make sure it does what you say in ’ your opening comments about the bill. All I m trying to do is define it to do what ’ you say it does. So, what s your objection? ’

KLEINSCHMIDT: I think the bill stays a lot cleaner if you don t add a new definition to the statutes.

BURNAM: Well, there s this misrepresentation that’s going on as to whether or ’ not we intend to open this up or actually do what you said you did, both in the subject line and the HRO report. We’re just talking about honesty in communication about what s going on. So, I’m just trying to get a clear definition.

KLEINSCHMIDT: Well, an amendment ought to clarify the statute. This doesn’t help, it simply adds an additional definition into the statutes. 

BURNAM: So, what you are saying is, it is your intent in this legislation that it be restricted to parking lots, and not be able to carry guns around, and other various parts of the campus, of the business facility.

KLEINSCHMIDT: This is a parking lot bill. There is no intention for employees to be able to carry beyond their employer’s parking lot. It’ll let them carry in the parking lot. They can show up in their vehicle with it and have it in their locked vehicle in the parking lot.

So, SB 321 specifically protects employees, but what about the rest of us? The law says we don’t need a license to carry in a vehicle. What if a business puts up a 30.06 or 30.07 (or both) to prevent open or concealed carry at the entrance to the entire property.  While the legislators were arguing intent for employees on what defines a “premises,” 30.06 uses another word: “property.” That is a much different word that is more encompassing. So, let’s look at 30.06/07.

If a private or public entity wanted to ban concealed carry – where allowable under law – all they need to do is put up a sign in accordance with Penal Code Section 30.06. It makes it an offense for a person who “carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent” and if the license holder “received notice that entry on the property by a license holder with a concealed handgun was forbidden.”  Notice consists of a “card or other document” (like a sign) on which is written specific language. Penal Code Section 30.07 is identical, except it applies to open carry. Entities that want to ban both must post both signs.

So, since GC 411 only applies to licensed carry of a firearm, PC Section 30.06 or 30.07 aren’t applicable to unlicensed concealed carry in a vehicle. The signs only apply to “license holders.” Keep in mind that this only applies in vehicles because it’s still “illegal” to carry a handgun outside your vehicle or property under your control without a license. This is why a 30.06 or 30.07 sign at the entrance to a parking lot does not prevent those without a license to carry from carrying concealed in a vehicle only. Once you step out of that vehicle, the signs apply if you have a license. If you don’t have a license, you’re breaking the law under PC 46.02.

Here’s the kicker and the area where we don’t feel comfortable making a definitive statement: if you have a license to carry, the law would at least appear to say that the sign DOES apply to you, while the sign would mean nothing to an unlicensed carrier in the vehicle. To understand how to think like a government official, remove your brain.

Hopefully this clears it up for everyone.

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Disclaimer: This post is not intended to be legal and is shared for informational purposes only.

Why is open carry so important?

C.J. Grisham, President, Open Carry Texas

1453154378922For the past three years since my arrest, I’ve worked hard to get better gun rights legislation passed through the Texas legislature. As of January 1 of this year, a licensed gun owner can carry a holstered handgun openly instead of being required to cover up. It took a lot of hard work from a lot of people from El Paso to Beaumont, Harlingen to Lubbock and Texarkana to Odessa to make it happen. I wanted to take a quick moment and explain why this is an important law because there are three main reasons why you should support it.

Convenience – The fact is that a thin piece of fabric is the only difference between someone carrying a gun concealed or openly. If you want to take off your coat to sit down for a cup of coffee or a burger, you can now do so without having to untuck your shirt or become a criminal. You can get out of your car to pump gas or grab a quick soda without worrying my gun might be seen. People who wear shirts and ties or tucked in business casual can now defend themselves legally without having to hide their gun.
Comfort – Inside the waistband holster are uncomfortable and cumbersome. Gun owners frequently end up dressing around their firearm instead of carrying what they prefer to carry. In order to carry an outside the waistband holster – the most popular manner of carry – Texans typically end up buying clothing is a size too large so they can properly conceal them. We no longer have to do that. During the summer months, it is even more difficult to conceal during a time when clothing is kept as minimal as possible. Likewise, more women will be able to carry a handgun comfortably having the additional option to carry openly in a belt or shoulder holster and women are the fastest growing demographic for gun ownership.
IMG_0812Exposure – In my line of work in the Army, I was trained on many of the psychological aspects of criminology. Fear and anxiety are a very powerful emotions and they are used incessantly by critics of open carry. However, fear and anxiety can be cured or at least managed. As someone with PTSD I know that firsthand as I have been trained to successfully manage my anxiety as have thousands of people suffering with it. A common treatment in overcoming phobias is exposure therapy. People who are afraid to drive can’t get over that fear if they never get behind the wheel. A fear of heights can’t be overcome by standing on the sidewalk. A fear of guns in public will likewise continue to perpetuate that fear as long as they are stigmatized and invisible to the naked eye. This is what I accomplished by carrying rifles all over Texas. It took some getting used to and made a lot of people uneasy, but by the end of 2013 the number of 911 calls about people carrying rifles dropped over 97% because people knew the law and were exposed to them. People may have still be uncomfortable, but they weren’t fearful. The same is true about open carry of holstered handguns.
In 1995, when the concealed handgun law was passed, we heard much of the same outrage, manufactured fear, and belly aching that we hear today with the passage of the open carry law. Businesses scrambled to put up 30.06 signs banning concealed handguns. People predicted Hollywood-style shootouts and blood running through the streets. It was supposed to be concealed carry-initiated Armageddon. They were proven wrong. Within a year, businesses started slowly removing the signs as they realized it wasn’t a big deal and today few businesses have them up at all. The critics shriveled into their cocoons licking their wounded pride for overreacting. Open carry will be no different and will experience the same growing pains.
We haven’t done anything novel in Texas by passing this law. We aren’t even a leader in gun rights legislation. We’re still way behind the constitutional power curve. We don’t need to wonder what results open carry will bring; we can look at more than 40 states to see for ourselves. Of the 45 states that allow some form of open carry, 31 of them are UNLICENSED open carry states. In other words, we are part of only one-third of the open carry states that still require a license. Open carry was not responsible for a single increase in crime rates, death, or another N’ Sync album.
My ultimate goal and what will define my existence until I succeed is to get constitutional carry passed in Texas, make our license to carry voluntary, remove gun free zones, protect law abiding gun owners, and lower the cost of obtaining a license. Last year, the number of constitutional carry states jumped from five to seven. Two of those states are BLUE states! There is no reason that Texans are any less capable, intelligent, responsible, or deserving to exercise our rights without paying a tax and begging for a permission slip than those other states. I would even opine that we are more capable, more intelligent, more responsible, and more deserving than they are. We’re the only state in the Union that was once its own country. It’s time to be a leader again.

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.

 

The Aptly Named American Criminal Justice System

The following is shared with permission from the Self Defense Fund (National Association for Legal Gun Defense). Self Defense Fund is a proud sponsor of Open Carry Texas.

The Self Defense Fund (National Association for Legal Gun Defense) is of the opinion that the American system of criminal justice is rightly named.  It is criminal and run by criminals.  Is that hyperbole? Maybe! Maybe not!

Let’s take a look at some of the facts and you decide.  America is a prison nation. A study shows that 1 in 3 Americans will be arrested by the age of 23, many of them arrested on “crimes” including truancy and misbehaving in school.

The war on drugs has ensnared millions of Americans for the non-crime of possessing parts of a plant which is now legal in some states.

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Inspire Others To Do The Same

Submitted by OCT: Houston Administrator Valente Gonzalez 

c2c20Have you ever been mobbed by anti-gunners? Do you feel pressured by the constant harassment of anti-gunners? I know how it feels. I work in a gun free zone; I have tried to get the employer to remove signs and to make us less of a target to no avail. I am looking at other ways to fix this situation; the employer says that they let us keep guns in our cars. I explain that is fine but that is the law, that isn’t something they can stop. This kind of interaction is called arguing. It is the way by which ideas are expressed, examined and challenged. Can you win every argument? No; but every argument gets people thinking, it gives you experience and when later you lick your wounds and research facts you find out how you were right.  You may not win an argument, sometimes the best you can do is just not lose an argument. Arguments are proving grounds for ideas.

Gun Control/Safety advocates cite misleading statistics that help them to prove their points; sometimes their facts are very misleading, because they cite gun crime, not all crime. They make a statement and end it with “Right” so you can agree with them, never agree with someone who is wrong. They will often try to alienate you by using peer pressure too, for example they will say, “Everyone believes gun control is good.” This is a false generalization designed to influence you so that you do not argue as confidently. Non-apologists (people who explain things) are sometimes at a loss to provide a rebuttal to their accusations, many times this is the first time that they have heard accusations negating their world view and many times this is the first time they have engaged in debate with people outside of their familiar mindset regarding such topics. They are frustrated and don’t know what to do or say to counter the “ideas” that another person is espousing.

So how does someone defend his/her rights from the relentless, mindless assault by the anti-gunners? To defend a position, you need to only remember that you are not the one wanting to change, you are normal; you are part of the reality they want to change. They seek to change reality by making you feel like you are the one seeking change rather than they. They try and perform a role reversal. Always remind them, they are part of the minority, always remind them that they are the ones going up against the silent majority. The Gun Control/Safety argument is something they want you to lose, or be incapable of defending. They want to shake your confidence so your ideas do not carry any weight. These people have ideas that are counter to our rights and many times they are working with only pure emotional appeal.

People defending a position logically cannot reason with emotion, unless they identify the emotion and call it out. Emotions that anti-gunners express are all forms of Resentment. Resentment of your rights and of your support of your rights can be categorized by bitterness, indignation, irritation, pique, dissatisfaction, disgruntlement, discontentment, discontent, bad feelings, hard feelings, ill will, acrimony, rancor, animosity, jaundice; More, anger, and outrage for your rights.

CJ_Keller

Remember you are dealing with people whose objective has been set to destroy the second amendment as a personal life’s goal under the false guise of “gun safety” or gun control. You will never ever change it.  “The price of liberty is eternal vigilance” is an often paraphrased and true statement. You will never be able to stop paying the price for liberty. So get used to it, enjoy it and never give up the fight. The irony is that we are all fighting for the same thing: safety and security. We simply have fundamental differences how that is achieved.

It is impossible to win the debate with anti-gunner extremists, however we are not trying to convince them so much as we are trying to remind them that they don’t speak for everyone. The way to ensure that their ideas do not get any traction is to call them out and challenge them constantly by seeking out others of like mind and organizing and meeting with a group. Human nature is a curious thing, when humans band together to support a cause their political power increases, they are emboldened, and most importantly they will inspire others to do the same. When you get more people thinking the way you do then your idea will resonate and spread.

Stand up organize and “inspire others to do the same.”

University of Texas Releases Campus Carry Recommendations

Beginning on August 1, 2016, the Campus Carry law goes into effect at all 4-year public universities (community colleges have until August 1, 2017). The law, SB 11, allows universities to “establish reasonable rules, regulations, or other provisions regarding the carrying of concealed handguns by license holders on the campus of the institution or on premises located on the campus of the institution.” However, those rules and regulations can’t “generally prohibit or have the effect of generally prohibiting license holders from carrying concealed handguns on the campus of the institution.”

With that direction, the University of Texas campus carry working group released their list of recommendations for implementing the law. For the most part, we are satisfied with their recommendations with the understanding that ANY restrictions are too many. However, our satisfaction is only relayed in the context of the law as written and not on our personal beliefs that any location where a gun is prohibited is unsatisfactory.

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