TexasCHLforum.com

C-dub wrote:

ScottDLS wrote: The requirement to present your CHL is in the government code and not the penal code. There is no DEFENSE TO PROSECUTION of not showing your CHL, because... it is not a crime. There's no administrative penalty (suspension, etc...) either. This is a recent (2009) change. Before, first offense was suspension, and second was a class B misdemeanor.

Yes, but there is no penalty any more. And also, as lighteningrocks says, and I understand your point of likeliness, a LEO cannot just simply ask someone for ID unless they have a clear reason to. It's way too early for me to be able to find this in the statutes this morning, but there are clear guidelines to when a LEO may ask for ID. And I could very well be wrong on this one, but if one doesn't have to show ID, then I would think that one also doesn't have to show the CHL.

Beiruty wrote:

03Lightningrocks wrote:Maybe I grew up different than some folks but where I come from Police officers don't randomly harass good honest citizens while they are just standing around in any establishment. As a matter of fact, Police officers typically say howdy if I say howdy to them and very often they will even say howdy first, once I make eye contact. I can't imagine, for one second, some police officer just randomly asking me for my ID for no reason other than a strange twist of fate. This is so ridiculous it is beyond comprehension. Would this random request for "papers" be similar to Nazi Germany under Hitler?

This is yet another example of an irrational fear.

Last I checked LEOs are human beings not some strange Aliens with evil intent on destroying us!

Points taken. The conversation had already gone way out on the deep end about is it possible that you could somehow be found guilty of violating 30.05 Criminal Trespass and how would they know you were carrying in the first place. So I just walked a bit further out.

BUT, while I agree that the vast majority of LEOs are good, honest, hard-working people. There are the bitter few who look for a reason to harass people, especially "certain" people. The anecdotal evidence is everywhere, even on this forum, of people being stopped and harassed by law enforcement for various reasons. Not saying it's the norm and certainly not labeling all LEOs as taking part in such things. But it does happen.

My original scenario, though flawed in it's original wording, could likely end up as one of those "beat the rap but not the ride" situations, with an overzealous LEO "detaining" you for some trumped up reason, then you failed to properly show ID, then he finds out you're carrying in a place with a "no guns" sign, etc. It's just a snowball rolling downhill at that point. Not a likely scenario, but then we were not really discussing likely scenarios. As I said, we were pretty far off the deep end of "what if" already.

And I did look up the statute in question just to clarify that under penal code you are not required to show ID unless under arrest/detained.

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person; or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

Also, just as an example of a situation that proves none of us know the law as much as we think we do (or perhaps WE do, but the LEOs don't ... not trying to open that can of worms), take a look at this Q/A that popped up in a Google search about requirements to show ID. Granted it's a college situation, so concealed carry is definitely off limits there by statute. But the general scenario is the same. If not arrested/detained, we would think "I don't have to show you ID" ... this university police chief sees it differently, citing a different law I'd never heard of before. Point is, I don't EVER want to risk "the ride" on the grounds that an LEO does not have the authority to ask for my ID. I don't know every little statute in Texas. That's why I try very hard to just keep my nose clean and avoid situations with the potential to get "sticky".

http://prtl.uhcl.edu/portal/page/portal ... f%20%20FAQ" onclick="window.open(this.href);return false;

University of Houston Clear Lake police chief wrote:Q. Am I required to show identification to a UHCL Police Officer upon request?

A. Yes. In fact, per Texas Education Code, Section 51.209, identification may be required of any person on university property. Furthermore, any staff or faculty of the university may require you to show identification. It should also be known that failure to show identification upon request from a Police Officer is a citable and/or arresting offense.

And here is the statute this police chief cites (emphasis added by me):

Texas Education Code wrote:Sec. 51.209. UNAUTHORIZED PERSONS; REFUSAL OF ENTRY, EJECTION, IDENTIFICATION. The governing board of a state institution of higher education or its authorized representatives may refuse to allow persons having no legitimate business to enter on property under the board's control, and may eject any undesirable person from the property on his refusal to leave peaceably on request. Identification may be required of any person on the property.

boomerang wrote:

austinrealtor wrote:Now all of this very much DOES come into play, and you didn't stupidly unconceal nor have to use your firearm in self defense. And before you say "but now I don't have to show the LEO my CHL" just remember that too is merely a DEFENSE TO PROSECUTION,

Care to cite the law on that?

ScottDLS wrote:The requirement to present your CHL is in the government code and not the penal code. There is no DEFENSE TO PROSECUTION of not showing your CHL, because... it is not a crime. There's no administrative penalty (suspension, etc...) either. This is a recent (2009) change. Before, first offense was suspension, and second was a class B misdemeanor.

Mea culpa, fellas.

I was confused. I thought this had merely been made a defense to prosecution and didn't realize all codified penalties had been removed from the statute. It still says if you're carrying that you "shall" show your CHL to an LEO that asks for ID, but does not codify any specific penalty for failing to do so. As for if/when an LEO can ask for your ID, that's a bigger can of worms.

03Lightningrocks wrote:

chabouk wrote:

03Lightningrocks wrote:One more question would need to be asked.

Police question: " Why on earth did you tell them you had a concealed weapon?"
Wrong Answer: "Because I was feeling guilty about carrying a deadly weapon and needed to hear someone tell me I was morally correct in my decision to carry in here."
Right Answer: "Because I am a complete moron."

Best answer: "I didn't tell them, exactly. More like it was kind of obvious when I shot the armed robber."

Exactly...and in a situation like that, who cares what kind of sign they had? Sure beats being found dead, right beside the non-compliant sign with no gun. I have no desire to die and then have everyone say..."If only he had his weapon... and gosh, he didn't even have to disarmed... what a great upstanding guy he was"!

The real point I was trying to make is that unless a person is seriously lacking in their manner of concealed carry, these issues will never be an issue. Yes...if you get unlucky and lightning strikes, they will know your armed...IF you are forced to use the gun...but this suddenly falls again into the, "Who cares what sign I saw...at least I am alive", category.

It appears that some folks are absolutely paranoid about being discovered carrying a handgun. I say paranoid because it is an irrational fear. Nobody knows your carrying but you and the folks you tell.

Y'all are forgetting the other more probable - and ultimately more "dangerous" for us - way that we can be "outed" as having a weapon. For whatever reason (make one up, cops do it all the time) a law enforcement officer while inside the "no guns allowed" premises says "let me see your ID".



Now all of this very much DOES come into play, and you didn't stupidly unconceal nor have to use your firearm in self defense. And before you say "but now I don't have to show the LEO my CHL" just remember that too is merely a DEFENSE TO PROSECUTION, so now you're up in front of a judge with not one but two distinct D.T.P.'s for two separate charges (criminal trespass and failing to property ID yourself to a LEO). Perhaps your case isn't looking so good anymore.

Obviously, I'm sort of opening up the worst-case Murphy's Law scenario here, but it's not as far fetched as someone purposely outing themselves or using their weapon self defense.

57Coastie wrote:
No comment. I take the 5th. Or is it the 2nd? Could be either one, I guess.

Jim

I take 'em all. Because they're all mine (and yours too). And ain't nobody gonna take 'em away from me.

ScottDLS wrote:

austinrealtor wrote:

chabouk wrote:PC 30.05(f) provides a defense to prosecution unless valid notice is given under 30.06

That is why it remains legally possible to get a conviction for non-compliant notice. Change that defense to an exception, and all will be right.

So if I'm understanding you correctly, any sign that in any way says something to the effect of "no guns" (be it a gunbusters sign or something else), COULD potentially lead to a conviction for criminal trespassing if a CHLee enters said premises with a gun because the 30.05 wording is merely a defense to prosecution, and thus a judge or jury could in their judgment simply reject your defense and convict you anyway?

If you go to trial and present your DEFENSE as evidence, the prosecution must refute your DEFENSE "beyond a reasonable doubt". That's the same standard as for proving any criminal offense, only it requires that you present your DEFENSE as evidence. If we're going to get all wrapped up around a defense vs. non-applicability, I'll point out that the original CHL law in 1996 only provided a defense to prosecution for carrying a handgun at all. I carried...

There's about the same chance of getting successfully prosecuted for something for which you have statutory defense as there is for you to be prosecuted for a crime you didn't commit. I'm not saying it can't happen, and in each case you'll have to pay for your defense, but I'm not going to limit my activities based on something that might happen.

Thanks Scott. Yet again, your analysis makes the most sense to me. Not disparaging any of the other well-reasoned arguments. This one just makes sense to me and is closest to my understand of the law AFAIKIANAL

chabouk wrote:PC 30.05(f) provides a defense to prosecution unless valid notice is given under 30.06

That is why it remains legally possible to get a conviction for non-compliant notice. Change that defense to an exception, and all will be right.

So if I'm understanding you correctly, any sign that in any way says something to the effect of "no guns" (be it a gunbusters sign or something else), COULD potentially lead to a conviction for criminal trespassing if a CHLee enters said premises with a gun because the 30.05 wording is merely a defense to prosecution, and thus a judge or jury could in their judgment simply reject your defense and convict you anyway?

ScottDLS wrote:

austinrealtor wrote:

Texas PC Sec. 30.05 wrote: ...
(2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.

"licensed issued under Subchapter H ... etc is what I'm interested in here. This would seem to only apply to a Texas CHL? But maybe not, need some of the legal eagles to help me on this one. I'm further swayed to believe it does only give a defense to Texas CHLs because later in the section it provides specific defense to prosecution for LEOs from other states, but NOT for CHLs from other states:

If you look in GC Subchapter H Section 411.173

(b) The governor shall negotiate an agreement with any other state that provides for the issuance of a license to carry a concealed handgun under which a license issued by the other state is recognized in this state or shall issue a proclamation that a license issued by the other state is recognized in this state ...
...

I think you could make a good argument that the reciprocity agreement or proclamation IS the granting of a license under Subchapter H, since the language is IN this subchapter. The out of state license holder would then have the defense to 30.05.

-Scott

Scott, I agree that's the way it should be read. But the words "licensed issued" still concern me. The state of Texas does not "issue" other state's CHLs under 411 or any other statute, it merely "recognizes" them.

IANAL

IANAL

Was just re-reading all the fine print in section 30.05 and I found this interesting and perhaps an additional problem for those who carry under authority of another state's license, recognized by Texas (such as Utah CHL for example):

section (f) basically gives defense to prosecution if the only "no trespassing" notice was for person's carrying a gun and the person doing so has a valid Texas CHL ...

Texas PC Sec. 30.05 wrote:(f) It is a defense to prosecution under this section that:

(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and

(2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.

"licensed issued under Subchapter H ... etc is what I'm interested in here. This would seem to only apply to a Texas CHL? But maybe not, need some of the legal eagles to help me on this one. I'm further swayed to believe it does only give a defense to Texas CHLs because later in the section it provides specific defense to prosecution for LEOs from other states, but NOT for CHLs from other states:

Texas PC Sec. 30.05 wrote:(i) This section does not apply if:

(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and

(2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.

(j) For purposes of Subsection (i), "recognized state" means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:

(1) has firearm proficiency requirements for peace officers; and

(2) fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.

Thoughts?

IANAL

57Coastie's lawyer friend's suggestions are very provocative to be sure. Even after reading all of this a few times, I'm still not sure I completely understand his point entirely. But after ready Scott DLS's rebuttal, I'm going to have to agree with that for now. 57Coastie, if you'd like to try to explain this again (redundant for you, I realize) I for one am interested in exploring this idea further.

I think what your lawyer friend is saying is that without 30.06 compliant sign, you can't be guilt of violating 30.06 law if you carry. But you could still somehow be guilty of violating 30.05 Criminal Trespass? Am I understand this correctly?

I think we've all stipulated at this point that we all agree that ANY VERBAL NOTICE given to a CHLee at any time regardless of any and all signs and the CHLee MUST LEAVE. Failure to do so at that point would be a clear violation of 30.06

Anyway, 57 Coastie, if you can try to explain this position one more time I'd much appreciate it. Thanks. Just trying to wrap my head around this because it is interesting and provocative.

sjfcontrol wrote:57Coastie -- If I understand your point, you are saying...

1) a place is not properly 30.06 posted
2) a CHL holder enters
3) It is detected that he is carrying, he is told to leave by someone in power
4) He refuses based on improper signage
5) He is now guilty of criminal trespass

If that's your argument, I would tend to agree. He is not guilty because of the signage, but because he refused to leave when asked.

PC 30.05(a)(2) "received notice to depart but failed to do so." A Class A or B misdemeanor

Also, PC 30.06 (a)(2)(B) "remaining on the property with a concealed handgun was forbidden and failed to depart" A Class A misdemeanor.

(Note: it seems there are some words missing between "handgun" and "was"???)

Actually, nothing is missing between "handgun" and "was" .,. what is missing is the earlier portion of the statute which states the opening clause as relates to both (A) and (B). See below for full wording up to that point, including the relevant clauses. Read all together the sentence reads as ...

"a license holder commits an offense if the license holder received notice that remaining on the property with a concealed handgun was forbidden and failed to depart"

... of course the other clauses add in conditions to the above sentence, which is why you must be a lawyer (WHICH I AM NOT) and not an English major to properly decode this stuff

Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:

(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that:

(A) entry on the property by a license holder with a concealed handgun was forbidden; or

(B) remaining on the property with a concealed handgun was forbidden and failed to depart.

wgoforth wrote:Unfortunately she said if there was any place that had a no gun sign, she wouldn't carry in there. After talking with the tec, she came back with "if you receive ANY written, verbal or signage that guns are not permitted, then it's not." After I read to her from my 2007-2008 Handgun Laws, she said "Well there is a new one. Would you like me to send a copy." I saw that was going nowhere, so I just said "sure."

Don't get me wrong, she was very courteous and polite. I am just concerned about having some very uninformed people in that dept. Thing is, she has answered the phone there I know for the past couple of years that I have called!

Did she preface her comments to you by saying "I am not a lawyer, but ..."

if not she may be illegally practicing law http://www.texaschlforum.com/viewtopic. ... ilit=ianal" onclick="window.open(this.href);return false;

Of course, I am not a lawyer, but I am planning to stay at a Holiday Inn Express sometime this year.

shortysboy09 wrote:

wgoforth wrote: Monica at the TX DPS Concealed Handgun Dept, who informed me that businesses do not have to have the 30.06 sign.

Looks like she goes by Monica.

doh! guess I'll read more closely next time

Did you get a name of either person at DPS with whom you spoke? You should forward the info to Charles Cotton. I'm sure he'd find it interesting and know the right people higher up the ladder at DPS to contact about it.