Tag Archives: open carry texas

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!

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“Gun Free Zones” In Texas

UPDATE: The section of the US Code (Section 921,   http://www.law.cornell.edu/uscode/text/18/921#9577745468023118216) that defines the federal “gun free zone” does create an unconstitutional 1000 ft bubble around a school. However, that is only applicable to interstate commerce.

There is a lot of talk about so-called “gun free zones” in Texas.  I want to discuss the reality of what these mean using local, Texas, and federal laws.  This post is NOT meant to be legal advice and presented for merely informational purposes. To read the actual laws quoted in this blog post, please click the associated URL links.

Before talking about these zones, we must define them.  State and federal laws about what constitutes a “gun free zone” are very well defined. I’ll start first with the federal laws that govern these “gun free zones.”

According to Title 18, Part I, Chapter 44, Section 922 of the US Code, a school is basically defined as the school grounds. This includes the building and all real property attached to that building. The code simply makes it unlawful to “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  This is a legislative trick, but one Congress passed trying to insinuate that simply carrying a firearm is somehow engaging in interstate commerce. Technically, under this sweeping interpretation of the interstate commerce clause of the constitution, Congress could literally dictate what clothes you wear if any part of them was manufactured, printed, assembled or the cloth grown in another state.

When this law was first passed, it was ruled unconstitutional and unenforceable. In response, Congress tweaked the wording a bit to try and make it fit within the confines of “interstate commerce.”  It’s a clever trick, but one that hasn’t yet been challenged to my knowledge.  Basically, this law says that all guns are subject to the law because there isn’t a single gun that is completely manufactured in one state.  If ONE part of the gun ever crossed a state line, the Congress thinks it maintains the authority to regulate the ownership, use, and transportation of that firearm for the rest of its life. I can’t imagine that holding constitutional water, except in the most anti-gun of Supreme Courts. But, let’s just assume for the sake of argument that this law is constitutional and valid.  To avoid being subject to it, simply don’t take a firearm on school property or make sure if you do that the firearm was completely built in Texas, including the mining for the ore. The law does NOT contain a “buffer zone” that defines a radius from the school a gun may not be carried.

That brings us to Texas law on “gun free zones.”  Texas law, like all its statutes, is easy to understand, but you have to follow numerous rabbit trails to get to the truth.

Chapter 46 of the Penal Code is where the regulation of firearms in relation to schools is defined. In our great state, it’s unlawful for a person to carry on or about his or her person a handgun, illegal knife, or club except in certain instances.  Texas law also prohibits us from having or carrying an explosive weapon, a machine gun, a short-barrel firearm, a firearm silencer,  knuckles, armor-piercing ammunition, a chemical dispensing device, a zip gun, or a tire deflation device unless you have a tax stamp required under the National Firearms Act.

With a concealed handgun license, Texans can carry a handgun as long as it remains concealed.  If the knife is less than 5.5 inches (we are also going to fight against this insane law), it is not an “illegal knife.” If you are on your own premises or premises under your control or inside of or directly en route to a motor vehicle or watercraft that you own or is under your control you can have any of those and even carry them openly. Handguns can’t be in plain view at any time (for now). Obviously, people prohibited by law can’t have a gun; neither can members of criminal street gangs.

Section 46.03 is the law that determines where guns are prohibited.  For the purposes of this blog post, I’ll limit the scope to those places related to schools. According to the law, “[a] person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon…on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution.”  It goes on to define “premises” as “a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”

Some may be asking, “where does this 1000 foot buffer zone come from?”  The 1000 buffer zone around schools is frequently attributed to firearms, but it only applies to possession of drugs as found in federal law.  There is no buffer zone for the possession of a firearm in federal law except on the property itself. Likewise, Texas state law does not create a buffer zone.  The next question is, “what about the 300 foot rule?”

This is where law enforcement and the general public get confused because the definition of “premises” changes.  Section 46.11 of the Texas Penal Code is the only section that talks about a “gun free zone.”  However, it doesn’t ban guns within them.  Instead, Texas law merely makes any gun crime committed within a school zone a greater offense.

For example, if I openly carry a modern handgun in Texas, I would be charged with a Class A misdemeanor for unlawful carry of a firearm. However, if I was carrying that same handgun within the 300 foot “school zone,” that same offense would now be a 3rd degree felony accusation.  That only applies to offenses described in Chapter 46 of the Penal Code. The definition of “premises” changes here from only applying to the school building to applying to all school property, but only for the purposes of making the gun offense more severe.

To sum up, there is only a “gun free zone” for the purposes of making certain gun crimes more severe in penalty and punishment.  It does NOT mean you cannot carry a lawfully possessed firearm within those imaginary lines. It merely says you can’t commit a crime within those boundaries and, if you do, the charge jumps up to the next greater offense (ie: class b  misdemeanor to a class a, or class a misdemeanor to a class 3 felony).

According to the Texas Constitution, only the legislature has the power to regulate the wearing of arms.  This state preemption of gun laws in enshrined in the Local Government Code, Section 229.001.  It states, quite clearly, “a municipality may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies.”  So a Texas city, town, or municipality can’t create more strict gun regulations than the state allows. Municipalities are given power to create ordinances in limited circumstances, like city parks, public meetings of a municipality, county, or other governmental body etc. (note they can’t just make public buildings off-limits), political rally, parade, or official political meeting, or at a non-firearms-related school, college, or professional athletic event. That’s it.

Why do we bring this up?

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This is a sign in Meadows Place, Texas.  It purports to describe the city as “gun free.”  On the city’s website, they are “pleased to announce the establishment of several Drug and Weapon Free Zones.”

“The City of Meadows Place takes the safety and well-being of our children very serious and has made this of the highest priority by initiating the Drug and Weapon free zones around our schools and parks in accordance with State and Federal laws.” They continue, “Because of the size of the City and the location of the schools and parks this encompasses a majority of the city.”

The problem here is multi-faceted. First of all, cities only have the authority to regulate guns within city parks, not around them.  Local Government Code 229.001 states, municipalities “may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies” except “at a public park” a few other places not relevant here. The law says AT a public park, not around a public park. However, you can see from this map provided by the City of Meadow Place that they don’t care about the law.

meadowsplacemap

The red lines represent the “no guns” zones and the green lines mean “no drugs” zones. As explained earlier, it is not illegal to carry a lawfully possessed firearm within these boundaries, it’s just MORE illegal to illegally carry a firearm or other prohibited weapon within them. And Texas law does NOT allow municipalities to create these “buffer zones” around parks, only schools. So, the red lines around the green areas above are meaningless in the eyes of the law and Open Carry Texas.

The problem lies in the legal reality there there really is no such thing as a “Gun Free Zone” in Texas. This “zone” is nothing more than a criminal act enhancement law. If you commit a gun crime within these invisible lines, that crime is now amplified.  However, the mere carry of a firearm outside of the building within these “gun free zones” is perfectly legal.

I’m not advocating walking up to the front door of a school.  While perfectly legal, it’s not prudent or reasonable while our liberal education system is working so hard to scare the hell out of kids on mere sight of a firearm. We need to continue reconditioning America on the facts and reality about guns in the hands of law abiding citizens.

What I am trying to get across is that the City of Meadows Place isn’t as “gun free” as they think.  All they are doing is simply making it more damaging for a criminal to use a gun in the commission of a crime.  Frankly, I’m okay with that. If you use a gun to commit a crime, you shouldn’t get a slap on the wrist.

Perhaps the most disgusting aspect of this whole “gun free zone” rhetoric they subscribe is what they do while telling you not to.  It turns out the city isn’t as divisive against guns as they’d have you believe.  They love guns, as long as those guns are in their hands and not yours.  Take, for instance, this screenshot of Meadows Place Police Department purchasing AR15 pistols (no, that’s not Dick Cheney…I don’t think!).

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Hypocrites much?

In fact, as a cookie to help legislators see the worth in passing unlicensed we’re willing to accept making Texas as a whole one of these “gun free zones,” making any gun crime in Texas an instant felony. The abuse of a right is the only thing that should negate the exercise of it.

One of the many efforts that Open Carry Texas is engaged in is making sure that is cities are going to hold gun owners accountable for obeying the law, gun owners must hold cities accountable for obeying the laws as well.  This is why we are fighting the City of San Antonio and their unlawful ordinance that bans loaded rifles within city limits.

We will continue to stand for our right to keep and bear arms without prejudice and without reservation. Someone needs to stand up and put a stop to our runaway governments and demand respect for our rights and the return of them. We, the People, don’t beg government to give back what is inalienable to us. Remember that “government[s] are instituted among men, deriving their just powers from the consent of the governed.

When government begins to dictate away our natural right to self defense, we have the right to take that power back. We have a right to challenge it. And challenge it we will.