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Thread: Need help w. OC info for TX.

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    I'm writing my law school major writing assignment on open carry in TX, specifically, how it relates to the state con.

    I've obtained permission to ask for outside input on identifying relevant statues/archaic terms/cases, etc.

    I would appreciate any help. So far, I've found the 1871 statute, which I want to look at as a Reconstruction era -- while I could use info from prior to 1876, I'm most interested in any cases/statutes which where passed after the 1876 Con.

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    OC of a handgun is not allowed in Texas and has not been since 1876.

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    CrossFire wrote:
    OC of a handgun is not allowed in Texas and has not been since 1876.
    Except "while traveling."

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    Regular Member CrossFire's Avatar
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    Mike wrote:
    CrossFire wrote:
    OC of a handgun is not allowed in Texas and has not been since 1876.
    Except "while traveling."
    I know what you are refering to Mike but too many of our LEO's are young, dumb and aggessive (some of the older ones too). I have my CHL and do not wish to be a test case.

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    Mike wrote:
    CrossFire wrote:
    OC of a handgun is not allowed in Texas and has not been since 1876.
    Except "while traveling."
    do we have any actual definition of 'traveling' yet? because I travel monday through friday.

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    If there is anything "good" to be said regarding the treatment of handguns under Texas law - it may well be the ABSENCE of any criminal provisionprescribing a penalty for concealed carry of a handgun. It's easy to over look the fact that the Texas legislature in its infinite wisdom has not prescribed a criminal penalty forconcealed carry of a handgun- only carry of a handgun , or failure to conceal a handgun under exceptedconditions.

    In all cases under criminal law there remains a factual question of the presence of knowing, or reckless criminal intentwhichmay bepresumed, but the burden of proof of which rests upon the State.In short,each individual must make their own determinationin regards toexercising their God-given right of self-defense.
    I reserve that right unto myself. Laws may reflect good intentions, but laws are not going to protect anyone from a violent predator.

    My 2 cents -- Texas 46.02 (unlawful carry of a handgun)& 46.035 (failure to conceal)will not withstand theaffirmation of the Heller v DCruling in the pending NRA v City of Chicago case.I'm sure there will be renewed interest in addressing Title 10, Chapter 46in Austin then.

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    Thank you for the code section -- I'm trying to track down the statutes/cases which were involved in first outlawing it -- I'm aware of the 1871 statute, but there must have been a later one, and, as it's a Reconstruction era statute, it's probably been rescinded w. the rest of the Reconstruction era laws and cases.

    Merely anecdotally, does anyone know if OC was legal in TX? TX passed most of it's gun control ~73 or so -- really using the political momentum of the Kennedy assassination. The other major waves of gun control legislation seemed to be inspired by Jim Crow, the Civil Rights Movement, and the violence associated w. Prohibition.

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    Mike wrote:
    CrossFire wrote:
    OC of a handgun is not allowed in Texas and has not been since 1876.
    Except "while traveling."
    Mike, can you please expound upon this exemption? By what you're saying, it looks like I could OC my handgun 'while traveling'.

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    DKSuddeth wrote:
    Mike wrote:
    CrossFire wrote:
    OC of a handgun is not allowed in Texas and has not been since 1876.
    Except "while traveling."
    Mike, can you please expound upon this exemption? By what you're saying, it looks like I could OC my handgun 'while traveling'.
    i think it is still in texas code somewhere - if it was deleted when the legislature added the exemption to conceal without permits in vehicles, then I am wrong - can you look thru the Texas code to see if it is still there?

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    It would appear that they did indeed delete the 'traveling' exemption.

    Sec.46.02.UNLAWFUL CARRYING WEAPONS. (a)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
    (1)on the person's own premises or premises under the person's control; or
    (2)inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
    (a-1)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
    (1)the handgun is in plain view; or
    (2)the person is:
    (A)engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
    (B)prohibited by law from possessing a firearm; or
    (C)a member of a criminal street gang, as defined by Section 71.01.
    (a-2)For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
    (b)Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
    (c)An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.


    and earlier versions below:

    Statutory Text On and After 6/20/97: Sec. 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. (b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor. (c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

    Statutory Text Between 9/1/94 and 6/20/97: Sec. 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.

    (b) It is a defense to prosecution under this section that the actor was, at the time of the commission of the offense:

    (1) in the actual discharge of his official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;

    (2) on his own premises or premises under his control unless he is an employee or agent of the owner of the premises and his primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event he must comply with Subdivision (5);
    (3) traveling;
    (4) engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or was directly en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;

    (5) a person who holds a security officer commission issued by the Texas Board of Private Investigators and Private Security Agencies, if:
    (A) he is engaged in the performance of his duties as a security officer or traveling to and from his place of assignment; (B) he is wearing a distinctive uniform; and (C) the weapon is in plain view;
    (6) [added 9/1/95] carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

    (7) [added 9/1/95] a person who holds a security officer commission and a personal protection authorization issued by the Texas Board of Private Investigators and Private Security Agencies and who is providing personal protection under the Private Investigators and Private Security Agencies Act (Article 4413(29bb), Vernon's Texas Civil Statutes); or
    (8) [added 9/1/95] a holder of an alcoholic beverage permit or license or an employee of a holder of an alcoholic beverage permit or license if the actor is supervising the operation of the permitted or licensed premises. (c) It is a defense to prosecution under this section for the offense of carrying a club that the actor was, at the time of the commission of the offense, a noncommissioned security guard at an institution of higher education who carried a nightstick or similar club, and who had undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this section, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury. (d) It is a defense to prosecution under this section for the offense of carrying a firearm or carrying a club that the actor was, at the time of the commission of the offense, a public security officer employed by the adjutant general under Section 431.029, Government Code, and was performing official duties or traveling to or from a place of duty. (e) Except as provided by Subsection (f), an offense under this section is a Class A misdemeanor. (f) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

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    No, it is still there.

    Text of subsection as reenacted by Acts 2007, 80th Leg., R.S., Ch. 647, Sec. 1

    (b)Section 46.02 does not apply to a person who:

    (1)is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;

    (2)is on the person's own premises or premises under the person's control unless the person is an employee or agent of the owner of the premises and the person's primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event the person must comply with Subdivision (5);

    (3)is traveling;

    ...

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    When I am traveling between Colorado Springs and Arlington TX - which I frequently do - whilepaying at the pump (incidental to the "traveling" experience)at the Shell fuel island my holstered handgun may not be concealed while I am outside the vehicle. After retrieving the fuel receipt I re-enter the vehicle where the weapon is concealed (at least not in plain sight). Same goes for continued "traveling" experience between my vehicle and the motel room in Amarillo. The only legal problem I see in this scenario would beif I were licensed under the authority ofSubchapter H, chapter 411- (TX CHL CODE) Which I presume would trump my "traveling" exception.

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    so here's my dilemma then:

    'traveling' is not defined. I travel everyday. I get on the train in tarrant county and get off in dallas county. I then take a bus to travel from train station to my workplace. Then I travel back. Would this not be 'traveling'?

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    Rush Creek wrote:
    When I am traveling between Colorado Springs and Arlington TX - which I frequently do - whilepaying at the pump (incidental to the "traveling" experience)at the Shell fuel island my holstered handgun may not be concealed while I am outside the vehicle. After retrieving the fuel receipt I re-enter the vehicle where the weapon is concealed (at least not in plain sight). Same goes for continued "traveling" experience between my vehicle and the motel room in Amarillo. The only legal problem I see in this scenario would beif I were licensed under the authority ofSubchapter H, chapter 411- (TX CHL CODE) Which I presume would trump my "traveling" exception.
    Having a CHL should NOT trump any other exemption. For example, the law requiring a CHL holder to conceal:

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.(a)A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    Notice that you must be carrying "under the authority of Subchapter H, Chapter 411". If you are carrying under another exemption to UCW, you are fine. Traveling is one. Being on your own property. Engaged in shooting sports, etc.

    Thus, don't fear a CHL. Get one so you CAN conceal, but you can still carry however you like when traveling.

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    DKSuddeth wrote:
    so here's my dilemma then:

    'traveling' is not defined. I travel everyday. I get on the train in tarrant county and get off in dallas county. I then take a bus to travel from train station to my workplace. Then I travel back. Would this not be 'traveling'?
    No. I can't cite to authority, but I have read about cases where (prior to CHL and MPA) the person who was arrested for UCW said "I travel to work; I travel home from work. That counts, right?" No. They were convicted. The court basically said that traveling is unusual. You are away from your home, business, etc. It is not a part of your usual routine.

    Some cases are pretty easy: you live in D/FW and you drive to Austin to visit a friend for the weekend. You are several counties away, overnight. I suspect any court would find this to be traveling. On the other hand, going from your house to 7-11 to get some milk would clearly not be, even if you crossed from Dallas County to Tarrant because you live in Grand Prairie near the line.

    If your employer allows you to carry at work (or check your gun), conceal on the train and bus. DART can't stop a CHL-holder from carrying. Yeah, it isn't OC but the only way to do that and have any chance to win is pre-1899.

    SA-TX

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    (IIRC) Traveling has been defined in 2 different manners previously, however, it is NOT defined now! 1) crossing more than 2(or3) county lines, and 2) staying overnight away from home. However, both of these definitions have been removed!

    Vehicle carry has now also been covered under the 'letter of the law' so even if 'traveling' I believe that you must follow the rules laid out for vehicles (must not be 'in plain view', etc...) So, unless you are on foot or horse, not sure where you would get away with OC under the 'traveling' exemption.

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    SA-TX wrote:
    DKSuddeth wrote:
    so here's my dilemma then:

    'traveling' is not defined. I travel everyday. I get on the train in tarrant county and get off in dallas county. I then take a bus to travel from train station to my workplace. Then I travel back. Would this not be 'traveling'?
    No. I can't cite to authority, but I have read about cases where (prior to CHL and MPA) the person who was arrested for UCW said "I travel to work; I travel home from work. That counts, right?" No. They were convicted. The court basically said that traveling is unusual. You are away from your home, business, etc. It is not a part of your usual routine.

    Some cases are pretty easy: you live in D/FW and you drive to Austin to visit a friend for the weekend. You are several counties away, overnight. I suspect any court would find this to be traveling. On the other hand, going from your house to 7-11 to get some milk would clearly not be, even if you crossed from Dallas County to Tarrant because you live in Grand Prairie near the line.

    If your employer allows you to carry at work (or check your gun), conceal on the train and bus. DART can't stop a CHL-holder from carrying. Yeah, it isn't OC but the only way to do that and have any chance to win is pre-1899.

    SA-TX
    I wish I could remember where, but I think there's court precedent in TX that states that pre-1899 is still considered a firearm for the purposes of 46.02.

    also, can I take this - (2)inside of or directly en route to a motor vehicle that is owned by the person or under the person's control. To mean that if my wife's car breaks down at the 7-11, I can walk from my house to 7-11 Open Carrying?

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    DKSuddeth wrote:
    It would appear that they did indeed delete the 'traveling' exemption.

    Sec.46.02.UNLAWFUL CARRYING WEAPONS. (a)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
    (1)on the person's own premises or premises under the person's control; or
    (2)inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
    (a-1)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
    (1)the handgun is in plain view; or
    (2)the person is:
    (A)engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
    (B)prohibited by law from possessing a firearm; or
    (C)a member of a criminal street gang, as defined by Section 71.01.
    (a-2)For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
    (b)Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
    (c)An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

    OK, so i guess that settles it - the traveling exception was removed - the unlicensed vehicle exception sure is awkward, as there is no general exemption for passengers who do not have an ownership interest in the vehicle - aslo, no explicit right to exit the vehicle and return home either.

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    Mike wrote:
    DKSuddeth wrote:
    It would appear that they did indeed delete the 'traveling' exemption.

    Sec.46.02.UNLAWFUL CARRYING WEAPONS. (a)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
    (1)on the person's own premises or premises under the person's control; or
    (2)inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
    (a-1)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
    (1)the handgun is in plain view; or
    (2)the person is:
    (A)engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
    (B)prohibited by law from possessing a firearm; or
    (C)a member of a criminal street gang, as defined by Section 71.01.
    (a-2)For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
    (b)Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
    (c)An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

    OK, so i guess that settles it - the traveling exception was removed - the unlicensed vehicle exception sure is awkward, as there is no general exemption for passengers who do not have an ownership interest in the vehicle - aslo, no explicit right to exit the vehicle and return home either.
    NO! The traveling exemption still exists (in 3 places!), just not in the citation above. The above is the definition of UCW, not the exceptions to it (read on to understand the history). Look to the Nonapplicability chapter.

    During the last session, several different bills modified the non-applicability section. More than one of them got signed into law. Thus, there are3 sections that cover the same material. The operative sections are in 46.15(b) Sec 1, 2, and 3. See here for a link to the legislative web site (http://www.statutes.legis.state.tx.u...E.46.htm#46.15)

    Here's the short answer as I understand it:

    1) You are right about MPA, non-ownership, and going from the vehicle.

    2) Traveling is still an exemption. Look at the 46.15 Nonapplicability section. This is where, traditionally, the exceptions to the blanket prohibition were placed. This is where police officers, for example, are removed from UCW's pervue. The MPA was placed in the definition section because some DA's were still charging people with UCW when there was simply a "presumption" of traveling given certain enumerated circumstances. They felt like they could overcome the presumption. Now, this is a part of the definition of UCW itself and more explicit (though not perfect).

    3) Traveling itself, is still not defined. You can carry concealed in a car at any time due to the change in the definition of UCW (i.e. -- the Motorist Protection Act (MPA)) but to openly carry, you must avail yourself of some other exemption. There are court cases that decide whether someone was traveling on a case-by-case basis, but there is no bright line test established by the Texas Supreme Court or Court of Criminal Appeals that I am aware of. In short, rely on traveling at your own risk. You might beat the rap but you might take the ride.

    SA-TX

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