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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!

“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.

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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.

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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.  

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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.

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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.

McAllen, Texas Call to Action

THIS IS PRIORITY CALL TO ACTION. READ AND SHARE THIS EVERYWHERE YOU CAN!!

One of our founding members, Murdoch, has just been arrested and booked for “criminal trespass” and “weapon in a prohibited area” in McAllen, Texas. He was on public property. He went to the police station to inform them that he was going to take a picture with his rifle in front of the police department as we have done in several other cities around the state. They immediately and illegally searched him and confiscated his legally possessed K-bar (only 5 1/4 inches long) and told him to leave, which he did. He then decided to return to file a formal complaint and called the police department to let them know he was coming back to do so. When he arrived at the police station, officers immediately drew on him, forced him to the ground, and arrested him. HE NEVER ONCE OPENLY CARRIED HIS FIREARM; IT WAS IN HIS TRUCK THE ENTIRE TIME. He will be at the McAllen jail overnight and then is getting transferred to County in the morning.

OCT board members did a conference call with the Lieutenant to explain that they are violating the law and illegally detained our member. He said that Murdoch couldn’t “alarm” people and that the courthouse and jail were attached to the back side of the police station. This is not a crime as long as there isn’t a capital offense being tried, which there wasn’t. When we explained the law to the Lieutenant and explained that we would bring down as many members as we could to open carry on their doorstep if they didn’t release him, he hung up on us.

McCallen Police Department Chief of Police Victor Rodriguez

McCallen Police Department Chief of Police Victor Rodriguez

We need as many people as we can muster to rally at the McAllen Police Department at noon on Saturday to put the police department there on notice that our rights will not be infringed. I will create an event page and share in both forums. I know this is way out of the way, but if we don’t stand up where we can, we have no business being here.

THIS IS WHERE THE RUBBER MEETS THE ROAD. THIS IS WHAT WE DO. WE CANNOT AFFORD TO SIT IDLY BY.

If you’d like to contact the police department, here is their contact information:

Police Department
1601 N. Bicentennial Blvd.
McAllen, TX 78501 (Map)

Phone: (956) 681-2000

Open Carry Texas Tips

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I’ve gotten numerous requests for tips from people wanting to open carry in Texas.  As you know, it is legal to openly carry rifles and shotguns in the state.  It is NOT legal to openly carry pistols or revolvers unless you are on private property.  You can find all the laws pertinent to open carry on our The Law page.

The first question I always get asks, “what is the law that allows open carry?  I can’t find it.”

You won’t find it.  There is no law that says, “We, the government of the State of Texas, bestow upon you the right to carry your firearms openly as long as they are long and bulky.  Now, go forth and annoy law enforcement officers who don’t know better.”

The fact of the matter is that laws don’t create rights.  They never have and never will.  Every single law that has ever been passed has only succeeded in limiting rights.  Laws are the harbingers of doom for God-given rights.  I love the 9th Amendment because it recognizes that the Constitution does not enumerate every single right that you and I possess for merely existing.  It recognizes that we are endowed with numerous rights that are not mentioned in the Bill of Rights.  For example, the right to travel, the right to breathe, the right to think, and the right to fall in love to name a few.

The fact that there ISN’T a law in Texas relating to openly carrying rifles and shotguns means we have the right to do so.  The only laws that have been passed with reference to our right to keep and bear arms have largely targeted handguns and are specific to them.  For example, Section 30.06 of the Texas Penal Code bars CHL holders who “carries a handgun” from entering the premises of a building bearing the applicable sign.  So, legally speaking, it is still lawful to carry a rifle or shotgun into a government building bearing this sign as long as it doesn’t otherwise bar all firearms.

But, let’s get back to openly carrying rifles and shotguns.  Now that we know it’s legal, how do we do it?  These are just suggestions and are by no means legal advice.  It’s important that before you undertake the task of openly carrying in a legal manner you first COMPLETELY understand what that legal manner is.  You must familiarize yourself with the laws so that you can intelligently inform those with whom you come in contact and law enforcement.

I can’t promise that when you exercise your right to keep and bear arms that you will do so unmolested.  If anyone knows that things can go wrong, it’s me!  But, I can tell you that if you remain calm and explain yourself intelligently your chances of completing a successful carry with be greatly increased.

If you are beginning this effort for the first time, it probably doesn’t hurt to contact your local police department or Sheriff’s office prior to going out.  You don’t have to specifically detail your entire route, but just give them some general information about where you’ll be in case they get calls.  I guarantee you, if you’ve never done this before, there will be at least one.  And one is all it takes.  There was only one call when I was arrested for lawfully carrying a firearm and you see where it got me.

This is by no means a requirement because I firmly believe you shouldn’t have to notify or warn anyone that you are about to exercise your rights.  You don’t call the police when you leave your house and tell them you’re going to work and you’ll be doing the speed limit.  You don’t call them when you post something online.  So, why call them when you’re about to exercise your right to keep and bear arms (hereinafter referred to as RKBA)?

I only recommend doing this the first or first few times to condition the call centers to what you’re doing.  After a few events, they will know who you are and what to expect.  This is just a courtesy and not a requirement, but it’s one I recommend, especially in the smaller towns or bigger cities.

When you call them, as happened in Little Elm, Texas, recently, they may tell you that if they get any calls they are going to arrest you for disturbing the peace.  This is also known as disorderly conduct.  They will tell you that if you “cause alarm” you are breaking the law.  What they won’t tell you is that they don’t know what they’re talking about.

Penal Code Section 42.01 covers disorderly conduct.  Subsections (a)(7), (a)(8), and (a)(9) refer to weapons specifically.  Subsection (a)(8) is the one that refers to displaying “a firearm or other deadly weapon in a public place in a manner calculated to alarm.”  This is the section to which most law enforcement officers refer when they threaten to arrest people carrying rifles.  And it’s a false threat.  Simply carrying a firearm openly does not meet the reasonable person standard for “calculated to cause alarm.”

A look at Texas court cases involving firearms violations of PC 42.01 shows that the only times the court has ruled against defendants are when the defendant was pointing the weapon at another person or waiving it in a threatening manner.  While many cases have been brought before the courts of someone simply having a weapon by which someone feigned “alarm,” none of them were found guilty unless they actually pointed that weapon or waived it around.  The mere sight of a firearm does not constitute a “reasonable person standard” for being “alarmed.”

A review of several Supreme Court (SCOTUS) cases inform us that the mere presence of a weapon is not evidence of a crime.  Most recently, in U.S. v Black, the 4th District Court ruled that the presence of an openly carried firearm in an open carry state does not constitute reasonable suspicion of a crime.  The noted that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” They further noted that “permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”

Since Texas is an open carry state for rifles and shotguns, police “cannot justify an investigatory detention.”  This is important case law that you need to know.  You may need to recite it at the point of interactions with law enforcement.

In Texas, there are basically three types of stops by law enforcement: interviews, stops, and arrests.  Interviews are just standard interactions with the public.  They may or may not have a purpose. Interviews are nothing more than asking how a day is going or what someone may be doing.  There is no legal requirement to respond to these questions at all.  Because the person being interviewed is not suspected of a crime, he/she can simply choose to walk away.  Police are not allowed to interpret such refusal to engage in conversation in an unofficial capacity as evidence that something nefarious is afoot.

The second is called a stop.  An officer may perform a stop – a temporary detention – if he has reasonable suspicion that a person has committed, is committing, or is about to commit a crime. He has to be able to articulate that reasonable suspicion and it must meet the reasonable person standard.  A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.  During a stop, you are not allowed to leave until the officer either confirms his reasonable suspicion or determines that the reasonable suspicion is not justified.

The third is called an arrest.  This is obviously an extended detention and requires probable cause that a crime was, is being, or will be committed.  This is a higher standard than reasonable suspicion and general requires evidence of a crime to be present.  Still, the officer must articulate exactly what the probable cause is in order to effect the arrest.

It is important that if stopped by a police officer, you immediately inquire as to the reasonable suspicion or probable cause upon which an officer is basing his interaction.  If none are present, you have the right to walk away.  You are free to VOLUNTARILY respond to his inquiries, but you are not required to do so unless suspected of criminal activity.

For example, in my case I voluntarily explained to the officer that stopped me that I was on a hike with my son.  He then asked me why I was carrying my AR15, which is obviously legal in Texas.  My response was “because I can” though I wasn’t required to answer at all.  Because I wasn’t doing anything illegal I should have been let go.  However, I was instead thrown onto the hood of a car and prevented from leaving.  I was now either being stopped or arrested.  I repeatedly asked what crime I was suspected of having committed.   These are important questions you need to ask for use in case of potential charges.  Even if they had found me with something illegal on my person, the reason for the initial stop was illegal and everything after that was a violation of my 4th Amendment rights.

I recommend that you simply be cordial and put the officer at ease.  If you don’t want to be cordial, ask the officer if you are being detained and then walk away.  Try to refrain from any arguments.  Unfortunately, many law enforcement officers have an authority complex and live by the rule that “you may beat the rap, but you won’t beat the ride.” While this is wholly offensive on its face, this is the mentality of many.  They have forgotten their purpose is to serve, not to enforce servitude.

When you decide to go out, have a plan. Ask a friend to go with you, preferably also armed.  Make sure you have the capability to record any encounter you have with law enforcement (in actuality, you should record any and all interactions with police these days).  Most cell phones allow you to create videos and there are apps that will upload directly to YouTube as you take the video if you’re worried about the police confiscating your phone or camera.

While you’re out on your open carry walk, do not handle the weapon.  Keep it strapped across your body with the muzzle pointing down. Keep your weapon on safe at all times.  The decision to carry with a round chambered is up to you, but keep in mind that a chambered weapon needs more attention and safety oversight when carrying. The least threatening way of carrying your rifle on your back without a round chambered and no magazine in the well.  Personally, I carry with a loaded weapon.  It doesn’t do any good to carry a weapon that can’t be quickly utilized when needed.

Try to stay away from sensitive areas.  While there is no 1000 foot “safe zone” around schools, try to avoid walking near them, especially during school hours. While it is legal to walk with a firearm on the sidewalk along school property, it’s probably not the smartest thing to do. There is a false belief that you can’t have a gun within 1000 feet of a school and there is simply no law in Texas against it.  However, the Gun Free School Zones Act of 1990 defines a “school zone” as anything within 1000 feet of school grounds.  However, because the Supreme Court struck down this Act, it was amended to apply to “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.”  So, if you buy a firearm that was manufactured and built in Texas, the GFSZA doesn’t apply.  Either way, just steer clear of schools.  It’s a no-win.

As an aside, I HIGHLY recommend that you subscribe to a pre-paid legal service like Texas Law Shield (of which I’m a member) or Legal Shield.  If you are a member of either service and are arrested for lawfully carrying a firearm, your legal services are already paid for.  I can’t recommend them highly enough.

Above all:

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