imported post
cbackous wrote:
some states say that a loaded magazine is a critical component of the firearm, for purposes of concealment. Is this the case in Texas?
The reason I bring this up is one could have an OWB magazine pouch/holster with loaded magazines, and conceal carry the handgun. While this isnt the type of open carry that we want, it would allow you to show you are carrying, without showing it.
thoughts?
cbackous,
Texas law does not define handguns in that manner. Referring to Texas Penal CodeSec.46.01.DEFINITIONS:
(3)"Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A)an antique or curio firearm manufactured before 1899; or
(B)a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
and:
(5)"Handgun" means any firearm that is designed, made, or adapted to be fired with one hand.
Now, the sections of law making open carry illegal are PC46.02 and 46.03 (I will not post then here due to length, but you can read them here
http://www.statutes.legis.state.tx.us/ ) both of which merely refer to carrying a handgun as defined above. Therefore, it does not matter under these statutes if the handgun is loaded or not.
Now, Texas lawis sort of strange in that it gives a direct and comprehensive violation under PC46.02 and 46.03 that include everyone, then it defines where these statutes are NOT applicable under a different subsection, PC46.15, which provides exemption forlaw enforcement officers, security officers, military personnel, those participating in hunting/sporting events,and so on, but there is noprovision for unloaded handguns/firearms here either.
So, if you were openly carrying a handgun, whether loaded or unloaded in Texas, it is illegal under these statutes. I feel this is especially true if you were carrying an unloaded handgun and had the means to load it at the ready, asI am sure you the officer wouldconsiderit the same as carrying aloaded handgun and the charge would most likely be upheld by the courts. I feel that even if one was caught with an unloaded firearm and no ammo on them that they could still be charged under these laws (and most likely would be) as they are written although they mightopt for thecharge of Disorderly Conduct in such a case.
If you have a CHL and carry openly with ammo at the ready I feel they would consider it a loaded handgun and file on you for failure to conceal under 46.035 and it would likely be upheld by the courts as well.
The only way you mightget away with open carryin Texas is to carry a pre-1899 handgun, which under Texas law is not considered a firearm by definition, thus, by law should not be considered illegal. However, most LEO are not that knowledgeable to the laws and I feel would file charges anyway and you would have todefend it in court. And there is still that Disorderly Conduct charge to fall back on which could be a bit harder to defend.
Now, the charge of Disorderly Conduct requires the action to be done
with the intent to cause alarm, otherwise it is not a violation under this statute, therefore, it is somewhat situation dependant.I know several local authorities that have encountered people passing through town on foot whilecarryingloaded rifles and shotguns slung over their shoulders and have allowed them to continue because they were not carrying them or acting in a threatening mannerand simple open carry of these weapons is not illegal whether loaded or not. As for carrying them around town, I feel many officers would push the issue, however,two recent appeal courts have ruled that the mere presence of the weapon does not constitute a threat just because someone perceives it as such. Bothcourts ruled that a true threat by word or action must exist in order to be a violation and that the mere presence of the weapon and perception of a threat by a third party is not sufficient. So, I feel it is defensible but may actually require you to defend it. In other words, how important is it to you?
So, there you have my opinion on the subject.
Doc