TexasCHLforum.com

XtremeDuty.45 wrote:Thanks for the reply. If there is any update or a place where one could check it out when it is done could someone point me in the direction to look at it?

If/when a bill is filed, I will have it in the Bill Status Report and there will probably be a thread started on it. Since OpenCarry.org is leading the open-carry effort, they may well see and publish a draft before it's filed. (So will I, but I cannot post anything on a draft.)

Chas.

XtremeDuty.45 wrote:I may have missed it but does anyone know what the OC bill will entail exactly and what will need to be done for it to pass?

It's my understanding the bill is being drafted, but I don't know any of the specific provisions.

Chas.

SA-TX wrote:

Charles L. Cotton wrote:The last thing we need is for them to get the feeling that "the bun lobby" (sic) are trying to pull a fast one on open-carry, and then distrust everything else that's related to guns.

Chas.

As you say, let's use history as a guide. I predict that if we get open carry (licensed or not), very few will practice it. It will still be VERY unusual and most folks won't have any cause to freak out and call their legislator demanding change. Much like the blood not running in the streets when the CHL bill was passed, after the news stories about the novelty of it are done, soccer moms are not very likely to encounter an open carrier in their local mall.

The history I feel is of value is Texas history, not the history of other states that OpenCarry.org wants to use as an indication of the response in Texas. Even without seeing a single gun, there was a near panic when CHL passed in 1995. It was so bad that clear "no guns" decals were popping up everywhere and we had to pass a bill in 1997 establishing the "big ugly sign" (30.06 signs) to stem the tide. Does this mean a similar response to open-carry will occur? Of course not. But I believe it is a better predictor than the reaction of people in rural PA or AZ.

SA-TX wrote:For example, regarding 30.06 signs and open carry, could a section 30.07 be added (so as to not open up 30.06 to amendment) that says a business owner wishing to keep out those carrying handguns concealed or openly may adopt the following sign which incorporates the elements of 30.06 but with language added. Thus, no changes to 30.06 nor any references to 30.06 need to be changed.

The trespass/private property rights issues are insurmountable hurdles, in my opinion. The stated goal of open-carry supporters is have a system in place that allows property owners to post a sign that prevents open-carry, but not concealed carry. The only way to accomplish this is with two signs. One suggestion was a separate sign only for open-carry and one only for concealed-carry. This would require a property owner to post both, if they want no guns on the property. The legislature will never do this.

The system you propose is also a two sign scheme that would allow a business to post just one sign (proposed TPC 30.07), but that sign would prohibit both open and concealed carry. So CHL's will be prejudiced by the acts of open-carry people.

Another two sign suggestion was made that works in the reverse in that 30.06 would be modified to apply to open and concealed carry, and a new Penal Code section (ex. 30.07) would be created that would prohibit only open-carry. This would leave CHL's alone, but the legislature would never pass it because our opponents would argue that it would confuse property owners. The argument for a single sign to keep all armed people off of the property will ultimately prevail.

SA-TX wrote:Regarding your view about legislation changing several sections rather than just simply adding "concealed" in TPC 46.02 seems to lead to different off-limits places for unlicensed open carry. All of the preemption wouldn't apply unless the open carrier also had a CHL. It is imperative that CC and OC have an equal footing -- either you can carry somewhere or you cannot. The Virginia situation of open-carry only in places that serve alcohol, for example, is definitely to be avoided. This is the reason for the complex legislation.

I understand your position and it's a valid point. However, I am not willing to risk amendments making more off-limits locations for CHLs for the sake of OpenCarry.org's goal of uniformity. That said, there is a somewhat safer way to accomplish the uniformity goal by leaving TPC §46.035 in tact and merely changing the phrase "license holder" to "person" and deleting references to "Subchapter H, Chapter 411, Government Code." This is not "safe" from anti-gun amendments, but it does make it a bit harder to add such an amendment than repealing all of TPC §46.035 and moving it into TPC §46.02 as in OpenCarry.org's bill. This approach would not create a conflict with TPC §46.03 since that section applies to all weapons and TPC §46.035 applies to only to handguns. Again, this is not "safe," it is "safer" and I don't want anyone at OpenCarry.org believing that I am saying this is a good approach. It's not, it's just better than the sweeping change in OpenCarry.org's bill. It is also critical that the caption be as limited as possible, or that would open other areas to amendment.

All of this may be moot, as I suspect the bill to be introduced will call for licensed open-carry and if I am correct, all that will be necessary is the repeal of TPC §46.035(a) that requires concealment and that won't open up anything to amendment.

Chas.

Thanks for the link to the Houston Chronicle article. I think Land Commissioner Jerry Patterson's comment is indicative of my belief that the vast majority of people do not realize OpenCarry.org is seeking unlicensed open-carry. Look at both of Commissioner Patterson's statements about open-carry:

Jerry Patterson wrote:"Is an openly carried gun more dangerous than a concealed one? I don't think so," Patterson said.

"Whether it's a shopping mall, a college campus or just on the street, if a person is 21 and licensed (to carry a firearm), what difference does it make?" he asked.

Whenever one is campaigning for something, it is critical that the message be clear. If people supporting open-carry are doing so believing the goal is merely to repeal the requirement that a CHL conceal his/her handgun, they are going to be very surprised and upset when called upon to vote for unlicensed open-carry. The message must be more clear to both the public and the Legislature. We have a lot of new people in Austin this session and we're going to have a new Speaker of the House. All to often, every person and every organization supporting pro-gun legislation are lumped together as "the gun lobby" as though it is a single entity. The last thing we need is for them to get the feeling that "the bun lobby" are trying to pull a fast one on open-carry, and then distrust everything else that's related to guns.

Chas.

Bart wrote:What kind of sign does a business have to post today to ban people who can OC legally today? Like if a restaurant doesn't want security guards from another business to wear guns if they eat there during lunch break.

Anything that gets the "no guns" message across.

Chas.

Douva wrote:

Charles L. Cotton wrote:If an open-carry bills gets introduced and passed, you can be certain of two things: 1) the Legislature isn't going to leave property owners without a way to keep armed citizens off their property; and 2) the Legislature isn't going to create a dual standard for "no trespass" signs, thus forcing property owners to post two signs instead of one, if they want to bar all armed citizens. So this means either TPC §30.06 will be amended to apply to open and concealed carry, or TPC §30.06 will be repealed and we return to the pre-1997 "ghost buster" signs and decals. I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas.

I'm not a lawyer, but couldn't the problem be fixed by the addition of language such as this to TX PC §46.03?

§46.03(a)(7) on any property owned by another who has not granted effective consent for the actor to enter carrying the firearm; if

• • (A) the actor received notice that:
    
    • (1) entry on the property by a person with a handgun was forbidden; or
      
      (2) remaining on the property with a handgun was forbidden and failed to depart.

§46.03(c)(3) "Entry" has the meaning assigned by Section 30.05(b).

§46.03(c)(4) "Notice" means:

• • (A) oral or written communication by the owner or someone with apparent authority to act for the owner;
    
    (B) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry with a handgun is forbidden;
    
    (C) notice under Section 30.06.

§46.03(j) It is an exception to the application of Subsection (a)(7) that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; and

• (1) the actor did not intentionally fail to conceal the handgun; and
  
  (2) the actor was not given effective notice under Section 30.06.

§46.03(k) A person who is subject to prosecution under both this section and Section 30.06 may only be prosecuted under Section 30.06.

§46.03(l) It is not a defense to prosecution under Subsection (a)(7) that an actor who received notice under Section 30.06:

• (1) was not licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
  
  (2) carried a handgun but made no attempt to conceal it.

Your suggestion would provide a method for property owners to select between two types of signs to either 1) bar only open-carry; or 2) bar open and concealed carry with a single sign. But the problem isn’t with drafting something that would work, but in getting it passed without doing damage to safeguards we already have and without winding up with only a 30.06 sign.

From a purely technical approach, incorporating a criminal trespass provision into Chp. 46 dealing with weapons is something the Legislature isn't going to do. The proposal also puts "conditional" off-limits areas into a part of the Code that lists only locations that are always off-limits. (The DAs would oppose this mixing of apples and oranges and in this argument, their opinions would carry a lot of weight.) That said, TPC §30.05 could be amended to do precisely what your proposal accomplishes.

Unfortunately, the Legislature would most likely take the easy way out and simply amend TPC §30.06 to be a "one size fits all" notice requirement for anyone with a gun. It will be argued that the proposal is confusing to property owners and they should have a single, simple and easy way to post one sign and keep all people off of their property if they have guns. To most legislators and the majority of the non-CHL, non-OC folks, this argument will make a lot of sense.

There is also a very real danger that we could lose the protections of TPC §30.06, if we try to adopt a statue that allows the use of any sign that doesn’t meet the size and language requirements of TPC §30.06. We have to remember that we were able to pass HB2909 in 1997 establishing TPC §30.06 (and it's onerous signage requirement ) based upon the argument that it was unfair to prosecute a CHL for trespass when it is so easy to miss the little "ghostbuster" decals found on several businesses. They were especially difficult to see when placed in the lower corners of glass doors, as was often the case. If we were to now promote a scheme by which an open-carrier could be prosecuted for crossing something less than a large 30.06 sign, then it would be both unfair to the open-carrier and it would be evidence that the large signs required by TPC §30.06 must not really be necessary. There would be no good response to that argument. None of us want to return to the pre-1997 days when excluding CHLs was absurdly easy.

The small sign problem could be addressed by requiring a sign that met TPC §30.06 dimensions but different language for open-carriers, but then we’re back to two-sign requirement for property owners waning to exclude all armed citizens. Unfortunately, the most likely result of open-carry, as it deals with criminal trespass, would be an amendment to TPC 30.06 such that it applies to both open and concealed carry.

Chas.

Morgan wrote:What are the states that have both open carry and concealed carry? Has this been a problem in those places? I know that Texas is different, but I'd be interested to know.

According to OpenCarry.org, there are 44 states in which open-carry is not illegal. (I say "not illegal" rather than "allowed" because what is legal and what you can realistically do without harassment are two different concepts.) They also have sub-forums for various states, so you may be able to get some information there. For these 44 states, I think an overall accurate but very general statement is that open-carry is not common in urban areas, but that it is legal. Open-carry in rural areas is more common, though still not the order-of-the-day. You are more likely to draw the attention of law enforcement in urban areas than in rural areas. This attention can be anything from a minor interview to events that lead to revocation of your carry license, TV news coverage, reinstatement of your license, and eventually a law suit against a sheriff. (This was the soccer game incident.)

As for Texas, I point to what we experienced from 1995 to the late 1990s as a reasonable predictor of what I believe we would see. It's not guaranteed, I may be wrong, but that is my concern. If I am correct, then I think there is no realistic chance that the general public would "get used to it" as open-carry supports believe. We are far too out-numbered to think we are going to "teach" anyone anything. The furor over concealed carry by citizens in Texas died down because 1) the media-predicted blood bath didn't occur so they (media) moved on to other topics; and 2) people don't see the guns we are carrying, so they have simply forgotten about it.

We have to remember that it was only 14 years ago that we got the CHL statute passed, reversing a ban on citizen carry (with exceptions) that had lasted for over 120 years. It's been only a year and a half since we passed the Motorist Protection Act that allows unlicensed carry in our cars. This fact pattern is markedly different from a state that has never prohibited open-carry. I think open-carry supporters who rely upon the experience of other states are underestimating these historical differences.

Chas.

CHLSteve wrote:

Charles L. Cotton wrote: I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas, can I infer from your post that you believe it would then follow that we will see a huge increase the number of 30.06 postings?

Yes, this is my only opposition to open-carry. I have posted my concerns along these lines since this subject was first broached long before the 2009 legislative session approached. I know the majority of people do not believe this will happen and they may be correct. But it happened 1995 and history does have a way of repeating itself. As the old saying goes, "those who refuse to learn from history are doomed to repeat it." (Now I've gone and done it! Just kidding open-carry supporters.)

Chas.

If an open-carry bills gets introduced and passed, you can be certain of two things: 1) the Legislature isn't going to leave property owners without a way to keep armed citizens off their property; and 2) the Legislature isn't going to create a dual standard for "no trespass" signs, thus forcing property owners to post two signs instead of one, if they want to bar all armed citizens. So this means either TPC §30.06 will be amended to apply to open and concealed carry, or TPC §30.06 will be repealed and we return to the pre-1997 "ghost buster" signs and decals. I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas.