texas tech

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Thanks for the clarification Doc.

BTW, does anyone know where it is in the Tx constitution or statutes that makes open carry illegal?

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Are there any LEOS that have delt with this on campus on Texas Tech?

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Notso wrote:

Thanks for the clarification Doc.

BTW, does anyone know where it is in the Tx constitution or statutes that makes open carry illegal?

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First off, the Texas Constitution does not make open carry illegal directly, but does allow the state to enact laws regarding the wearing of arms. Under Article 1 - Bill of Rights of the Texas Constitution, Section 23 states:

Section 23 - RIGHT TO KEEP AND BEAR ARMS

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

As for the statute that makes open carry illegal, it is 46.02(a) of the Texas Penal Code, which reads:

Texas Penal Code § 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.


This statute make it illegal to carry a handgun in any manner, except where expressly exempt by PC § 46.15. NONAPPLICABILITY. Under 46.15, specific groups and situations are outline in which 46.02 (and/or 46.03) does not apply, such as police officers, security officers, judges and so on. As part of this section, 46.15(b)(6) expressly exempts those carrying a concealed handgun under the CHL.

In short,Texas lawprohibits the carry of a handgun in any manner by anyone, then merely provides specific exemptions to which the law does not apply.

Doc

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DocNTexas wrote:

Notso wrote:

Thanks for the clarification Doc.

BTW, does anyone know where it is in the Tx constitution or statutes that makes open carry illegal?

Click to expand...

First off, the Texas Constitution does not make open carry illegal directly, but does allow the state to enact laws regarding the wearing of arms. Under Article 1 - Bill of Rights of the Texas Constitution, Section 23 states:

Section 23 - RIGHT TO KEEP AND BEAR ARMS

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

As for the statute that makes open carry illegal, it is 46.02(a) of the Texas Penal Code, which reads:

Texas Penal Code § 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.


This statute make it illegal to carry a handgun in any manner, except where expressly exempt by PC § 46.15. NONAPPLICABILITY. Under 46.15, specific groups and situations are outline in which 46.02 (and/or 46.03) does not apply, such as police officers, security officers, judges and so on. As part of this section, 46.15(b)(6) expressly exempts those carrying a concealed handgun under the CHL.

In short,Texas lawprohibits the carry of a handgun in any manner by anyone, then merely provides specific exemptions to which the law does not apply.

Doc

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I still don't get why TEXAS of all states is so damn strict when it comes to Open Carry! It's outrageous.

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DocNTexas wrote:

First off, the Texas Constitution does not make open carry illegal directly, but does allow the state to enact laws regarding the wearing of arms. Under Article 1 - Bill of Rights of the Texas Constitution, Section 23 states:

Section 23 - RIGHT TO KEEP AND BEAR ARMS

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

As for the statute that makes open carry illegal, it is 46.02(a) of the Texas Penal Code, which reads:

Texas Penal Code § 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.


This statute make it illegal to carry a handgun in any manner, except where expressly exempt by PC § 46.15. NONAPPLICABILITY. Under 46.15, specific groups and situations are outline in which 46.02 (and/or 46.03) does not apply, such as police officers, security officers, judges and so on. As part of this section, 46.15(b)(6) expressly exempts those carrying a concealed handgun under the CHL.

In short,Texas lawprohibits the carry of a handgun in any manner by anyone, then merely provides specific exemptions to which the law does not apply.

Doc

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Doc, I had asked earlier in this thread with no answer, but is there case law (not via criminal convictions) that has the texas courts upholding this license scheme?

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DKSuddeth wrote:

DocNTexas wrote:

First off, the Texas Constitution does not make open carry illegal directly, but does allow the state to enact laws regarding the wearing of arms. Under Article 1 - Bill of Rights of the Texas Constitution, Section 23 states:

Section 23 - RIGHT TO KEEP AND BEAR ARMS

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

As for the statute that makes open carry illegal, it is 46.02(a) of the Texas Penal Code, which reads:

Texas Penal Code § 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.


This statute make it illegal to carry a handgun in any manner, except where expressly exempt by PC § 46.15. NONAPPLICABILITY. Under 46.15, specific groups and situations are outline in which 46.02 (and/or 46.03) does not apply, such as police officers, security officers, judges and so on. As part of this section, 46.15(b)(6) expressly exempts those carrying a concealed handgun under the CHL.

In short,Texas lawprohibits the carry of a handgun in any manner by anyone, then merely provides specific exemptions to which the law does not apply.

Doc

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Doc, I had asked earlier in this thread with no answer, but is there case law (not via criminal convictions) that has the texas courts upholding this license scheme?

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DK,

I went back and read your previous post to make sure I understood your question and I think I do, so here is an attempt to answer it.

As for case law supporting the enforcement of 46.02 (46.02 is the law that prohibits all public carry, open or concealed), there are thousands of cases on record.

As for the Texas Supreme Court reviewing and upholding the legitimacy of 46.02, I am not sure that has ever occurred and doubt seriously that it would. The Texas Supreme Court dealswith constitutionality, application of lawand due process issues but they do not arbitrarily hear a case just because it is filed in their court. They firstinvestigate the merits of the case in questionto see if there is any obvious doubt before agreeing to hear the case. If they find no merit in the basis for the case, they simply deny the case for review. This is what I feel the court would decide if presented a case challenging the legitimacy of 46.02 for someone wanting to openly carry a handgun and here is why I say that:

First off, the Texas Constitution expressly allow the state toregulate the wearing of arms with a view to prevent crime. This opens the door for any law that can be argued as intended to reduce or prevent crime, which is what 46.02 was "intended" to do.

Next, 46.02 does not apply to a persons own property and even has provisions for allowing law abiding citizens to carry in public places, so it does not necessarily restrict your personal rights (at least on face value), which is the argument the court will take. Since the intent of46.02 is crime prevention, the law is legal under the constitution and as such the supreme court would probably not hear the case on those grounds.

With that said, let me add a personal note about the subject. I am totally for open carry and I push for it at every turn. As such, Isee a better argument being that since one is allowed to carry concealed with a license, then there is no crime prevention valuein requiring that it be carried "concealed", therefore, Texas CHL's should simply be "carry" licenses, allowing one to carry however they choose. In short, without the ability to show some crime prevention meritin carrying"concealed", the concealment clause in the CHL code is unconstitutional under the Texas Constitution.

The risk of filing a legal action to change the concealment portion of the code, however, is pushing a few senators that support concealed carry, but not open carry, to the other side of the fence and losing the right to carry at all. I think I would prefer to push for a legislative change in the law (convince them to make the change) rather thantrying and force their hand by legal action. This way we do not risk making some of them mad and losing already gained ground. This is just my opinion though, I thow it in simply as food for thought, because I support anyone who is active seeking to improve our ability to carry and protect ourselves and family.

I hope that helps, but if I was off base with your question, try to clarify what you are askingand I will give it another try.

Doc

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DocNTexas wrote:

DK,

I went back and read your previous post to make sure I understood your question and I think I do, so here is an attempt to answer it.

As for case law supporting the enforcement of 46.02 (46.02 is the law that prohibits all public carry, open or concealed), there are thousands of cases on record.

As for the Texas Supreme Court reviewing and upholding the legitimacy of 46.02, I am not sure that has ever occurred and doubt seriously that it would. The Texas Supreme Court dealswith constitutionality, application of lawand due process issues but they do not arbitrarily hear a case just because it is filed in their court. They firstinvestigate the merits of the case in questionto see if there is any obvious doubt before agreeing to hear the case. If they find no merit in the basis for the case, they simply deny the case for review. This is what I feel the court would decide if presented a case challenging the legitimacy of 46.02 for someone wanting to openly carry a handgun and here is why I say that:

First off, the Texas Constitution expressly allow the state toregulate the wearing of arms with a view to prevent crime. This opens the door for any law that can be argued as intended to reduce or prevent crime, which is what 46.02 was "intended" to do.

Next, 46.02 does not apply to a persons own property and even has provisions for allowing law abiding citizens to carry in public places, so it does not necessarily restrict your personal rights (at least on face value), which is the argument the court will take. Since the intent of46.02 is crime prevention, the law is legal under the constitution and as such the supreme court would probably not hear the case on those grounds.

With that said, let me add a personal note about the subject. I am totally for open carry and I push for it at every turn. As such, Isee a better argument being that since one is allowed to carry concealed with a license, then there is no crime prevention valuein requiring that it be carried "concealed", therefore, Texas CHL's should simply be "carry" licenses, allowing one to carry however they choose. In short, without the ability to show some crime prevention meritin carrying"concealed", the concealment clause in the CHL code is unconstitutional under the Texas Constitution.

The risk of filing a legal action to change the concealment portion of the code, however, is pushing a few senators that support concealed carry, but not open carry, to the other side of the fence and losing the right to carry at all. I think I would prefer to push for a legislative change in the law (convince them to make the change) rather thantrying and force their hand by legal action. This way we do not risk making some of them mad and losing already gained ground. This is just my opinion though, I thow it in simply as food for thought, because I support anyone who is active seeking to improve our ability to carry and protect ourselves and family.

I hope that helps, but if I was off base with your question, try to clarify what you are askingand I will give it another try.

Doc

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The risk of 'losing' the right to carry would have to be nil at this point. too many texans support the concealed license law, imo.

As for pushing for legislative change, while that would be great to do, it doesn't guarantee that it wouldn't change again at a future date. That is the problem with legislation. One day it's there, the next day it's gone.

What needs to happen is a supreme court decision like Vermont got, in the early 19th century. I'm wondering if murdock v. commonwealth of PA would be of benefit here.

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[align=left]Wow, this has been a very informative line of discussion.

Most of this has been clarifing a lot of questions I have had on wher I can and can not carry .

My concern is that a lot of people will vocally support the CCW and even the open carry, I notice a lot of these same people will not get out and go vote.

If our voting public keeps putting the same people back in office that are oposed to making these changes , nothing ever gets changed.
[/align]

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DKSuddeth wrote:

The risk of 'losing' the right to carry would have to be nil at this point. too many texans support the concealed license law, imo.

As for pushing for legislative change, while that would be great to do, it doesn't guarantee that it wouldn't change again at a future date. That is the problem with legislation. One day it's there, the next day it's gone.

What needs to happen is a supreme court decision like Vermont got, in the early 19th century. I'm wondering if murdock v. commonwealth of PA would be of benefit here.

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DK,

While I agree that it is probably a small risk, it is certainly still a risk. Remember, many of our legislators are like children and when they feel slighted they try to get even by taking their ball and going home. They are like the kid who would rather break the toy than let someone else play with it.

As you said yourself, "the problem with legislation is that it can change. One day it's there, the next day it is gone." While concealed carry is heavily support by the public, few are willing to get out and vote to secure their opinions. If they were, we would already have open carry.

This is my point behind filing a court action on the subject. It stands the risk of stepping on their toes and making them repeal concealed carry in an effort to "teach us a lesson for bucking their authority", so to speak.

Remember, the high and might district attorney's are vowing an all out push next session to repeal the new traveling law revision passed last session. If they succeed somehow, concealed carry will be the next target.

Speaking of the newly passed traveling revision, I see it as a very positive sign and stepping stone toward securing an open carry provision. It shows that legislators are willing to widen the law to include non-licensed individuals as well. (Yes, it has always been the law, but it has beenineffective until now, so the action is the same as making a new law.)

The next step is to both defend the new traveling law and to move forward by both removing the restrictions on where CHL holders can carry and securing open carry for CHL holders. Then we can follow that with open carry for all. It is a slow process, but it takes time. Trust me, no one is more impatient than me, but after years of dealing with the Texas legislators I am getting better at waiting. The legislative ball is in our court right now, so lets use it. If and when we lose control of that ball, then there is always the courts to protect our rights, but typically, the courts are much less gun rights friendly than the legislator, especially the current ones. The current Texas Supreme Court justices are very reserved in their opinions and have a very poor record of supporting the publics rights over government (check their track record, it's bad).

Again, this is just my opinion and in no way aimed at discounting your opinion. You make some great points and I value the discussion.

Take care,

Doc

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I take my chances and carry anywhere I dont have to pass through metal detectors, criminals do and ONE DAY this BS law about being illegal carrying on a school campus, courthouse, post office, hosptial will be put to the test when a citizen CHL holder prevents a mass murder. Concealed is concealed and if I do it right, no one will ever know I have it unless that day comes when I need it to survive. I support OC and would love to OC, butI think there should be choices for both in this great state!! How can this great state be so bassackwards on gun laws when we, of all people, should know the importance of a well prepared milita and the rights of its citizens to keep arms at all times!! O wait, thats because like stated above, alot of the idiots in this state vote and the rest that support the right issues dont!! :banghead:

I will take the chance of "losing my privilege" :uhoh:and continue to carry by my right if I am that (God Forbid) person to test this law.

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+1

-- John D.

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Ianmtx wrote:

I still don't get why TEXAS of all states is so damn strict when it comes to Open Carry! It's outrageous.

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Well, it started out as a Jim Crow thing; the law technically applied to everyone, but the good ol' boys in the LEAs looked the other way for whites. It's still on the books, and applies to everyone equally, because the strong argument was made that carrying a weapon openly first creates a disturbance of the peace by virtue of it hanging off your hip when few others have one;second,when carried openly a handgun easily becomes a penile extension and an ego booster for thosewho carry without shoulderingthe requisite responsibility (demonstrated by going through the CHL process); and third, open carry perpetuates Texans as still living in the Wild West.

We also have some strict neighbors: you see from the map that Oklahoma and Arkansas are non-permissive, and Louisiana is anomalous; basically it's not illegal but the cops will look for a reason to run you in if they see you carrying openly.

All that said, the states to our west arepretty permissive even if they don't pre-empt; there's an open carry ban in Denver, and Arizona doesn't allow handgun possession in places with a liquor license, but other than that and Federal pre-emption you can have a holstered pistol on your hip and nobody says a word.

I think the only reasons we still prohibit open carry is that we have three of the largest metropolitan areas in the country (Houston, D/FW and San Antonio), two of which battle some serious gang/poverty problems in parts of the city. Allowing unlicensed open carry would strengthen gangs by forcing police to assume a guy walking around Oak Cliff with a gun on his hip is following the law unless his picture shows up on the cruiser's computer. People in Texas generally areambivalent about open carry (most have at least seen a gun up close and know the Bradys are full of it)but there is a real potential for abuse unless an open carry law is very carefully crafted, or set up behind shall-issue licensing. :quirky

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Maybe you can help me with this one doc as you seem to understand legalese. I am a graduate student at a Texas university where I also work as an instructor. I live on the property of another Texas university that my fiance is enrolled in for medical school. It is not a dormatory but an actual apartment. What I have been told by my university and the management of my apartment complex that no fireamrs are allowed.

Previously I looked at the Texas Penal code myself and took the defnition premises as a building and its surrounding areas. I totally missed what is not defined as the premise as you state in 43.035(f)(3), "any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area." Thank you for clarifying that.

My understanding now is that I cannot protect my fiance and myself in our own home, nor can we when we are walking to our automobiles after we get out of school and work. I cannot not have any weapon including my sword and dagger collection!

My question is, am I correct that I cannot have weapons in my apartment since it is owned and operated by a texas public university, but I can keep my firearm in my automobile, which is on a private parking lot?

I use to keep my shotgun under my bed until I got word that my apartment is considered an extention of the medical school and university. Obviously I cannot keep my shotgun in my truck as it might become stolen. I have it in a safe place, but I was thinking of buying a handgun to store discretly in my truck after I get my CHL.

This inability to protect my family makes me feel almost sub-human. I'm defnitly considering moving into a place I own myself.

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The section that you have quoted is under § 46.03. PLACES WEAPONS PROHIBITED and yes, it is the correct wording for that section. You must, however,read on down to § 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER, which applies the section to CHL holders,which states:

§ 46.035 (b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;


Next, refer to § 46.035 (f)(3), which provides a definition of for the term "Premises" as applied to this section,which states:

§ 46.035 (f) In this section: (3) "Premises" means 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.


In short, under Texas law, CHL holders are allowed to carry on school property as long as they do not cross the threshold of any doorways into a building or other contained venue, such as a sports stadium.

Hope this helps.

Doc

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I am a little slow here, but how does this statute prohibit CHL carry into a building on Texas Tech, if there is not a sporting event taking place? Assuming I don't work there and am prohibited by some policy, but I am just Joe Public going to see my wife or girlfriend there for example, does this statute prohibit my licensed concealed carry in a building? Great information here.

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Luggo wrote:

I am a little slow here, but how does this statute prohibit CHL carry into a building on Texas Tech, if there is not a sporting event taking place? Assuming I don't work there and am prohibited by some policy, but I am just Joe Public going to see my wife or girlfriend there for example, does this statute prohibit my licensed concealed carry in a building? Great information here.

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Doc's got it right, but is quoting the wrong section of Ch 46.

§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly possesses or goes with a firearm, illegal knife, club,
or prohibited weapon listed in Section 46.05(a):
(1) 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;

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46.03 goes on to say:

style="BACKGROUND-COLOR: #ffffff"(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

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Therefore, schools are off-limits even to CHLs. However that only applies to buildings. You can legally be on the grounds of a school with a concealed weapon; you just cannot go inside.

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Got it, thank you very much. Great thread.

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Liko81 wrote:

Luggo wrote:

I am a little slow here, but how does this statute prohibit CHL carry into a building on Texas Tech, if there is not a sporting event taking place? Assuming I don't work there and am prohibited by some policy, but I am just Joe Public going to see my wife or girlfriend there for example, does this statute prohibit my licensed concealed carry in a building? Great information here.

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Doc's got it right, but is quoting the wrong section of Ch 46.

§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly possesses or goes with a firearm, illegal knife, club,
or prohibited weapon listed in Section 46.05(a):
(1) 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;

Click to expand...

46.03 goes on to say:

style="BACKGROUND-COLOR: #ffffff"(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

Click to expand...

Therefore, schools are off-limits even to CHLs. However that only applies to buildings. You can legally be on the grounds of a school with a concealed weapon; you just cannot go inside.

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As pointed out above, building carry is prohibited by 46.03. If you go back to the original posters question for which I was addressing, you will see that he had quoted 46.03, stating that he agreed that itprohibited building carry but could not see how it allowed campus carry. The posterasked;1) if he had the right textfor 46.03and if so; 2) how it allowed for campus carry?

Rather than repeating the text of 46.03 in my answer (the one you quoted), I simply acknowledged that the text of 46.03 as he quoted it was correct and did prohibit building carry as he read it, then pointed out the section that allowed for campus carry.

You had to read the original post to follow my answer.

Sorry for the confusion.

Doc

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Liko81 wrote:

Luggo wrote:

I am a little slow here, but how does this statute prohibit CHL carry into a building on Texas Tech, if there is not a sporting event taking place? Assuming I don't work there and am prohibited by some policy, but I am just Joe Public going to see my wife or girlfriend there for example, does this statute prohibit my licensed concealed carry in a building? Great information here.

Click to expand...

Doc's got it right, but is quoting the wrong section of Ch 46.

§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly possesses or goes with a firearm, illegal knife, club,
or prohibited weapon listed in Section 46.05(a):
(1) 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;

Click to expand...

46.03 goes on to say:

style="BACKGROUND-COLOR: #ffffff"(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

Click to expand...

Therefore, schools are off-limits even to CHLs. However that only applies to buildings. You can legally be on the grounds of a school with a concealed weapon; you just cannot go inside.

Click to expand...

Liko81,

Actually, I did quote the right section, you merely failed to read the entire exchange for which I was answering.

See my above reply.

These running exchanges can get a bit confusing when a section is omitted and others are not up to speed on the exchange and are posing questions based on part of the exchange. I have done the same thing. :quirky

Take care all and be safe,

Doc

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OK! Now I see where part of the confusion lies. Sorry guys, in an effort to save some typing, I copied the latter half of my reply from another document I had saved concerning the definition of premises and sporting events and inadvertently included the section referring the 46.035 (b).

As pointed out above, I referenced 46.03 as the original poster quoted it and then did the old cut and paste for the rest. I guess the inadvertent inclusion of46.035 (b) did serve toadd to the confusion. Sorry about that.

None the less, one had to read the entire exchange to follow the answer (even with the added non-applicable section included).

That is the bad thing about these forum settings, too easy to lose track of the exchange. :uhoh::question:

Take care all and be safe,

Doc