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E.Marquez wrote: ↑Fri Dec 20, 2019 10:13 amAnd I get it, humans involved so there is no one answer that will work for all, I guess Im asking..What if YOU were that officer, would you be swayed to read the offered cite?
What about the officers you knew well, would some, any, none of them in your opinion be willing to read the offered materiel on the side of the road?

This is an important question that, as you point out, depends greatly on the individual officer. I think that if you have been polite and cooperative, asking a question of that nature might be beneficial and save you an unnecessary ride. I would certainly be inclined to read the citation you have. But I was also one of those officers who always kept a copy of the Penal Code in my car with me for reference. If you gave me a paper with what you thought the law was, I would read it and then look at my copy of the laws to verify it. I would then try to explain how I disagreed if I still did.

At the very least, I think most officers would be willing to listen to you. Some would be willing to calmly discuss the issue but I think most would read what you had and then make up their mind without discussing it further. A few would politely tell you that you need to discuss that with your attorney instead. They have their mind made up.

Obviously, if the officer is in a foul mood and seems already irritated or argumentative, I would not advise doing this. It won't help and might make things worse.

Charles L. Cotton wrote: ↑Thu Dec 19, 2019 5:01 pm

srothstein wrote: ↑Thu Dec 19, 2019 2:43 pm

AJSully421 wrote: ↑Thu Dec 19, 2019 1:29 pmAbove all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

I disagree. In general, this is the rule and you would be correct. But there is two narrow cases where 46.02 does apply to to an LTC. I do not know if either is applicable to this case or not though.

The law says:

(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

The first case is if the weapon was carried openly in some manner other than a belt or shoulder holster. For example, if he was carrying with the weapon shoved into his pocket, but the grip was sticking out and could be clearly seen then 46.02 would apply.

I disagree Steve. If the handgun is "in plain view" and is not in a belt or shoulder holster, then the LTC would have violated TPC §46.035(a), but TPC §46.02, including subparts §46.02(a-1)(1) and §46.02(a-1)(2)(C), do not apply to the LTC.

Chas.

Charles,

This is an interesting fine point to discuss, and I agree you are better at this than I am. Let me clarify further why I think 46.02(a-1)(2)(c) might apply in this weird case. Hopefully you can help me learn where my thinking is going wrong. Please pardon any short cuts in my language which do not match the law exactly (like saying holster instead of belt or shoulder holster).

As a general rule, it is illegal for the average person to carry a handgun on their person in a public place under section 46.02. This is clarified as being not in a motor vehicle though. Paragraph (a-1)(1) says in a very convoluted way that it is legal to have a gun in a motor vehicle if it is in plain view only if the person has an LTC and the pistol is in a holster. I understand this to mean that an openly carried handgun in a vehicle is generally illegal but an LTC can do it. Paragraph 46.02(a-1)(2) also makes it illegal for a person who is in a criminal street gang to carry a gun in a car at all.

Now along comes section 46.15 (b)(6) which says that all of 46.02 does not apply to a person who meets certain conditions:
1. is carrying a handgun
2. is carrying his LTC
3. the handgun is concealed or is openly carried in a holster.

So, let's say a person has an LTC but is carrying his pistol in his car by sticking it in a pocket with the grip sticking out. As I read 46.15, all of the conditions are not met, so 46.02 does apply. If 46.02 does not apply, then it would be possible to charge a suspect under 46.02(a-1)(2) if he were an LTC, carrying his LTC and pistol while riding his motorcycle, but the pistol was openly carried and not in a holster and he was also in a gang. He could also be charged under 46.035 as you point out, and I would probably use that since it is an easier charge to get a jury to understand, but I think he could be charged under both sections. In the specific case, if my assumed/made-up facts were correct I would be surprised if the DA did not try to go for both charges.

Obviously, in the specific case that started this, I agree that if the pistol was in a holster or was concealed, then the charge is flat out wrong. And I do think that is what happened. I was more trying to point out that the unlawfully carrying charge does apply if he did not have his LTC with him at the time. One of my concerns is the people who are being more lax about this since the penalty for not showing it was removed.

AJSully421 wrote: ↑Thu Dec 19, 2019 1:29 pmAbove all. 46.15(b)(6) make anything that 46.02 says non applicable to an LTC holder, so it does not matter what one word of it says.

I disagree. In general, this is the rule and you would be correct. But there is two narrow cases where 46.02 does apply to to an LTC. I do not know if either is applicable to this case or not though.

The law says:

(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;

The first case is if the weapon was carried openly in some manner other than a belt or shoulder holster. For example, if he was carrying with the weapon shoved into his pocket, but the grip was sticking out and could be clearly seen then 46.02 would apply.

The second is actually more likely IMO. Now that the penalty for not showing your license to the officer has been removed, some people might have gotten a little laxer about actually having the license on them. But this law clearly states that to get the defense of having an LTC, the license must be carried on you at the time.

I believe from what has been reported that I have seen, this case is a travesty and should be dismissed. But I admit I have not seen any information on how he was carrying (openly or concealed and in a holster or not) and we do not know if he actually had his license on him at the time.