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XtremeDuty.45 wrote:So for all the military; Active Duty, Reserve, National Guard...shouldnt we be able to carry when and how we want to effectively do our job at all times? We made an oath to protect the Constitution of the United States from all enemies foreign AND domestic.

Well, if you read the law, there is an exemption for members of the military carrying in performance of their duty. This even includes Texas State Guard members. But the important part is that military members do not get to decide when they want to carry. They can only carry in the line of duty, so they have to have orders to do so. For example, the Armed Forces Police that work in San Antonio carry all the time when they are on patrol in the city off base. They have orders and an ID card authorizing this. If you are a reservist with military authorization to carry, you may do so to.

This is not too different from what the police get. They are always on duty according to the CCP so they get to carry. The real difference is that cops get to ignore places weapons prohibited and military members do not, but military members get to carry on base and civilian cops do not, so we are all even there.

But, I do agree that the law should be the same for everyone. Basically, I think we need to work on repealing Chapter 46. I think we can get there eventually, and we are taking it one small step at a time.

Well, they have the exception so they can do their job. There are not too many people who would do a cops job without carrying a weapon.

And the reason for the off duty exception is in Code of Criminal Procedure section Art. 2.13. DUTIES AND POWERS.:

(a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means.
(b) The officer shall:
(1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any magistrate or court;
(3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good
reason to believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be
taken before the proper magistrate or court and be tried.
(c) It is the duty of every officer to take possession of a child under Article 63.009(g).


The things to note are that there is no duty status mentioned and the word "shall" is used. This means the officer has no discretion but must take action. This is also one of the reasons police unions got the law passed forbidding cities from requiring officers to live inside their jurisdictions.Of course, I still live in my jurisdiction, but what can I say.

MBGuy wrote:

srothstein wrote:For example, a person who is traveling can carry either openly or concealed. The law just does not apply to them.

Care to elaborate? I did some quick googling and apparently if you're travelling for an overnight stay you can open carry? That just doesn't sound right

Sure. If you read the Penal Code, Section 46.15 says that 46.02 does not apply to "a person who is traveling". Since 46.02 is the law saying it is illegal to carry and does not mention concealed or open, when it does not apply there is no requirement to conceal either.

Now, the problem is that there is no legal definition for traveling. To find out what a word means, you can look at the Code Construction Act (chapter 311 of the Government Code). There we are told that, basically, a word has its common meaning unless there is a technical meaning assigned somewhere by law. Since there is no definition of traveling in Texas codes, it has the common meaning. Now, to most of us, traveling means taking a trip that is not part of your usual activities (sucha s when i drove to Dallas this week). Some of us think it requires a certain distance or an overnight stay but there is really no general agreement. Ask any basketball player and they will say it means moving both feet while holding the ball.

So, we look to what the courts have said. There are a lot of cases with various definitions of traveling. Some require a distance, some require an overnight stay, some require crossing county lines, etc. Most of these come about by doing just the opposite of what we want. Instead of defining traveling, the court usually tells us what it is not.

And, the best answer was found in a Court of Criminal Appeals case from early in the 20th Century. They said that traveling is a fact to be decided by the jury at the time of trial. Using this as a guideline, courts will generally not touch the fact of whether or not you were traveling on an appeal. The jury decides the definition.

So, if you can convince the jury that what you were doing constituted traveling, you can carry your pistol openly. If the jury disagrees with you, then you were breaking the law.

But my point was that the law really does not give police officers that much of a special privilege. It does give them some, but it gives the same privilege to some others also. And, we need to fix the law so we can all carry Alaska style (with or without a permit as we decide).

XtremeDuty.45 wrote:I was under the impression that Texas Law Stated NO open carry even for LEOs. Last I checked a law was a law and ALL people have to follow it. LEOs enforce and uphold the law and also have to FOLLOW the law. I know that they can CC when off duty and some departments require them to also carry their badge when they do but like I said I thought OC was no go for EVERYONE. I just don't see why they should be an exception and not have to follow the laws.

Well, this is a common misconception about open carry. In the law banning people from carrying, there was originally nothing mentioning open or concealed carry. The law then had exceptions put in to allow certain people to carry. One group of these people are peace officers. Since the unlawfully carrying law does not apply, they can carry open or concealed. It is the same law and exception applying tot hem when they are on duty or off. Other groups also had the same authority. For example, a person who is traveling can carry either openly or concealed. The law just does not apply to them.

Then there are some exceptions put in that have some limit on them. For example, security officers may carry if the weapon is in plain view and they are in uniform. The opposite was written for CHL's where they can carry if the weapon is concealed.

So, when I carry in the open, even in plain clothes and off duty, I am just obeying the law. I do support removing the restriction on carrying for all people since I agree officers should not have special privileges. I am trying to help work on this, and recommend taking small steps until Chapter 46 is gone. First we got CHL, then we got car carry, next we go for more places CHLs can carry. Then we can work on licensed open carry, then unlicensed carry a la Alaska. I am willing to move up the schedule if it looks like it will win but I don't want to push too hard and lose what little gains we have made.