Failure to Conceal?

[Charles L. Cotton]

[ I]f I, as a CHL holder, carry a cased up unloaded pistol into my gunsmith's store, set it on the counter, and open the case, am I guilty of intentional failure to conceal? After all, I have a CHL; the gun is concealed (in the case); and I am carrying it.

No, because at that moment in the gun store, you are not carrying pursuant to your CHL. As Steve said, case law holds that taking a gun to a gunsmith for service is not a violation of TPC §46.02. Likewise for taking a gun home from the person or store when you purchase it.

And then, by extension, if I carry that same cased up unloaded handgun into longshot38's house to show off my new acquisition, set it on the coffee table, and open the case, am I guilty of intentional failure to conceal?

Yes, because carrying at a friend's home is not protected by case law or statute. You cannot legally get out of your car at longhot38's home with a handgun unless you have a CHL. Thus, you are carrying pursuant to the authority of your CHL making TPC 46.035(a) (intentional failure to conceal) applicable.

Also, isn't there a legal principle in play (I don't know what it would be called) which says something to the effect of: "wherever the law's meaning must be interpreted, it should always be interpreted in the most narrow and liberal fashion possible (in the sense of classical liberalism as opposed to modern leftism) so that it not be too broadly applied?"

Close, but not quite. Statutes/codes must be read according to their clear and unambiguous language. Only if a statute is unclear do we look to the rules of statutory construction, then to legislative intent. If a statute restricts a constitutional right, then it must be drafted as narrowly as possible to achieve a legitimate legislative goal. This is the basis of attacking statutes on constitutional grounds. Both TPC §46.02 and §46.035(a) are absolutely clear, so they are applied as written.

Was it seriously the legislature's intent that I should never be allowed to take my new gun over to longshot38's house to show it to him, when that very same thing is permitted to anybody who doesn't have a CHL and is otherwise lawfully permitted to be in possession of a handgun?

It is not lawful for a person without a CHL to have a pistol in longshot38's home, so there's no conflict.

That makes no kind of sense to me, and if that was the legislative intent, then the legislature ought to be heartily ashamed of itself for trying to sell us a sow's ear as a silk purse.

I wasn't around when TPC §46.02 (actually it predecessor) was written, so I can't comment about legislative intent. However, I seriously doubt any thought was given to buddies looking at each others guns in the privacy of one's home. That said, the law is clear. As I've said before, gun shows are hardly "sporting events" as anticipated in TPC §46.15(b), but no one is ever arrested for bringing a handgun to a gun show, whether it's concealed or not. I cannot imagine a LEO even hearing about you showing a handgun to longshot38 in his home, much less him arresting you for intentional failure to conceal. If he did, a good and reasonable prosecutor would refuse to accept the charges. Failing that, a good and reasonable judge would dismiss the charges.

Try as we might, it's not possible to craft every law to include every conceivable exception to prevent abuse. We have to rely upon LEO's, DA's, Grand Juries, and judges to round off the rough edges of the law.

We BADLY need Constitutional Carry in this state,. . .

I agree.

Chas.

[Charles L. Cotton]

Charles your entire argument is bases on the CHL statute being all encompassing, which it is not. Like many other parts of the Penal code it has limited scope and in this case it does not over-ride my rights as a property owner.

Your so-called "private-property rights" do not give you veto power over Texas law. You have absolutely no authority to tell someone else they can violate a Texas statute or code.

Chas.

[Longshot38]

Charles your entire argument is bases on the CHL statute being all encompassing, which it is not. Like many other parts of the Penal code it has limited scope and in this case it does not over-ride my rights as a property owner. Case in point, I live a private road, which means if I want to take my truck and drive it up and down said road with an open container of beer I can do that. Why can I do this, the Penal Code make DUI and open container a criminal offense. Because said road is private property, thus LEO have no jurisdiction concerning the conduct of drivers on said road. Now if I were to enter a public roadway then it is a different story. The same applies to the application of the CHL statute. Its application does not apply to my property, if I wish for a firearm to openly displayed while in my home, it is my right.

Does TPC §46.02 make it illegal for a non-CHL holder to carry a handgun into your home?

Chas.

Again it is situational. In my case no. I live alone and don't get many visitor. When people show up to my home they are either close friends or solicitors. The solicitors get sent away in a rapid fashion. And my friends know exactly how I feel about firearms, thus understand that I welcome them all and have been authorized by me to have them at my home. Now how does this apply to the law. Simple really, first off this entire debate is one of property rights not the CHL statute, but seeing as you are bound and determined to make the entire argument focus on that I'll oblige. The last little bit of 46.02 is that kills your argument, "premises under the person's control", via verbal agreement my friends have been told in no unclear terms that they have an open invitation anytime and if they need a place to reside or live then my couch is always available. Hints why it doesn't apply here. As far as I am concerned when my friends show up then the premises is under their control. They can do what they please and have run of the place.

But this is something that does not hold true in all cases. So sure if you want to pretend that TPC 46 is all encompassing and applies equally to every place and situation then you might have half a leg to stand on. But from the stance of property right there is nothing in the law that prohibits me from allowing legal weapon on my property in any fashion I deem appropriate.

[goose]

I think that TAM painted a better picture but I'd like to ask it another way:

If I, as a CHL holder, go over to a buddy's house with my EDC concealed and a second pistol in a case, I am allowed to show and tell about the pistol in the case but not the EDC?

As TAM said, I would be VERY disappointed if I lost the right to talk guns when I got my CHL.

EDIT: Thank you Charles, your comments to TAMs post, about reasonable judges and DAs, covers my question. As always thank you for your time educating us here.

[Keith B]

The last little bit of 46.02 is that kills your argument, "premises under the person's control", via verbal agreement my friends have been told in no unclear terms that they have an open invitation anytime and if they need a place to reside or live then my couch is always available. Hints why it doesn't apply here. As far as I am concerned when my friends show up then the premises is under their control. They can do what they please and have run of the place.

Here's where you are misinterpreting the 'under their control' There can only be one person present in control. An example you may understand is being a control operator on an amateur radio station. You may allow a person to use the station, even if they are not licensed, but YOU are the control operator and your license is responsible for it. Same with a vehicle, only one person is in control at a time. Same with my house, I am in control. The only way someone else would be left in control is if I relinquish said control and am absent from my home. Otherwise, the full control of the home falls back to me as the owner when I am present.

[Longshot38]

Attorney or not Charles is off course with his post. It is a legally accepted principal that any right I have on my property I can extend to my guest at my discretion.

Once again, site the code, statute or case law that supports this sweeping statement. .

By following this standard then the only person who can have a pistol on any property is the person named on the deed. And we know both in practical application this is not the case. Go in the standard that you suggest then if a family were living as a family unit in a home then only the head of house hold (or whomever is named on the deed) would have a right to own a pistol. So why can anyone in family living under one roof be able to own a pistol? Because the property owner has extended his right to his family. Hints I don't need a statue, I only need to look at the practical application of the law. So yes I can extend my property rights to others.

And to elaborate on the rest of your post. No I can not authorize anyone to murder another, because murder as it is defined is illegal at any time, thus the scope of this law is broad and far reaching. However the law does allow for me to use deadly force to defend my property (among other things), but this law is narrow is scope, and the law also allows me to authorize a third party to use deadly force in defending my property. Thus it is clear that the law allow for me to extend my rights and privileges as a property owner to others. Hints the legally accepted principal.

[Longshot38]

The last little bit of 46.02 is that kills your argument, "premises under the person's control", via verbal agreement my friends have been told in no unclear terms that they have an open invitation anytime and if they need a place to reside or live then my couch is always available. Hints why it doesn't apply here. As far as I am concerned when my friends show up then the premises is under their control. They can do what they please and have run of the place.

Here's where you are misinterpreting the 'under their control' There can only be one person present in control. An example you may understand is being a control operator on an amateur radio station. You may allow a person to use the station, even if they are not licensed, but YOU are the control operator and your license is responsible for it. Same with a vehicle, only one person is in control at a time. Same with my house, I am in control. The only way someone else would be left in control is if I relinquish said control and am absent from my home. Otherwise, the full control of the home falls back to me as the owner when I am present.

And I have never tried to say otherwise. In you case. Yes I am always in control of the station, but another is using my privileges. In other words I have extended my privileges to others. The same goes for property rights. I can extend my property rights to others but I am still liable of those actions because I authorized that perfectly legal act.

[Charles L. Cotton]

Charles your entire argument is bases on the CHL statute being all encompassing, which it is not. Like many other parts of the Penal code it has limited scope and in this case it does not over-ride my rights as a property owner. Case in point, I live a private road, which means if I want to take my truck and drive it up and down said road with an open container of beer I can do that. Why can I do this, the Penal Code make DUI and open container a criminal offense. Because said road is private property, thus LEO have no jurisdiction concerning the conduct of drivers on said road. Now if I were to enter a public roadway then it is a different story. The same applies to the application of the CHL statute. Its application does not apply to my property, if I wish for a firearm to openly displayed while in my home, it is my right.

Does TPC §46.02 make it illegal for a non-CHL holder to carry a handgun into your home?

Chas.

Again it is situational.

No it is not. Texas law applies to every square of inch in this State, unless the law itself states otherwise.

The last little bit of 46.02 is that kills your argument, "premises under the person's control", via verbal agreement my friends have been told in no unclear terms that they have an open invitation anytime and if they need a place to reside or live then my couch is always available. Hints why it doesn't apply here. As far as I am concerned when my friends show up then the premises is under their control. They can do what they please and have run of the place.

That's not the legal standard for "control" so your generosity is not a factor.

So sure if you want to pretend that TPC 46 is all encompassing and applies equally to every place and situation then you might have half a leg to stand on. But from the stance of property right there is nothing in the law that prohibits me from allowing legal weapon on my property in any fashion I deem appropriate.

Show us statutory or case law that gives you veto authority over the Texas Legislature. I'll save you some time, it doesn't exist. People use the phrase "property rights" to argue that they can do anything and everything they wish "on my own land." This hasn't been the case for over 150 years.

Can you:
Dump toxic substances in your backyard in violation of Texas and federal law? No.
Can you open a retail business at a location zoned "residential - single family only[?]" No.
Can you grow marijuana on your own property? No.
Can you open a brothel and offer under age girls "for hire" on your own property? No.
Can you put up a Ham Radio tower on your property in violation of city ordinances, deed restrictions, or HOA rules/regulations? No.

Like it or not, and I know you don't, the only thing you have a "right" to do on your own property is use it in a manner that does not violate federal law, state law, county ordinances, city ordinances, deed restrictions, and HOA rules/regulations. Oh yeah, I left out paying your state, county, city, and school district property taxes.

I understand you don't like the state of things, but staring a 2,000 bull in the face and arguing "you're only a Chihuahua" is futile. Telling your friends "it's only a Chihuahua" is irresponsible.

Chas.

[longtooth]

OK, I'll go to my room & quit reading.

[Charles L. Cotton]

Attorney or not Charles is off course with his post. It is a legally accepted principal that any right I have on my property I can extend to my guest at my discretion.

Once again, site the code, statute or case law that supports this sweeping statement. .

By following this standard then the only person who can have a pistol on any property is the person named on the deed. And we know both in practical application this is not the case. Go in the standard that you suggest then if a family were living as a family unit in a home then only the head of house hold (or whomever is named on the deed) would have a right to own a pistol. So why can anyone in family living under one roof be able to own a pistol? Because the property owner has extended his right to his family. Hints I don't need a statue, I only need to look at the practical application of the law. So yes I can extend my property rights to others.

Wow, you do like to carry something to a ridiculous extreme. Once again, you cannot "extend [your] property rights to others." In a family's home, "control" is not an issue because TPC 46.02(a)(1) expressly applies to one's property. The Code doesn't state "record title holder," it says "person's own premises" and that applies to everyone living in the home. There are plenty of cases holding that any family member not otherwise prohibited from possessing firearms can have a handgun in their home. It's also significant that the Code goes on to state "or premises under the person's control" to distinguish it from a place of abode.

You keep talking about having to authority to "extend [your] property rights to others" but you have yet to respond to my call for you to cite such authority. Why is that?

Chas.

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 premises under the person's control;

[Longshot38]

Charles I have provided more then enough real world examples of how the scope of TPC can be and is limited. Yet you refuse to accept it. You might be a fine attorney who wrote TPC 46 but there is more to the Penal Code then that. And I can promise you that in real world practical application of the law you are dead wrong, I know this because I live it everyday. And I will stand behind what I have said to the point being the first test case. I am confident in this because no officer would charge me, no TX DA would accept the charges, and no jury would convict me. In the world outside the pages of the TPC your argument has no merit.

[Songbird]

You might be a fine attorney who wrote TPC 46 but there is more to the Penal Code then that. And I can promise you that in real world practical application of the law you are dead wrong, I know this because I live it everyday. And I will stand behind what I have said to the point being the first test case. I am confident in this because no officer would charge me, no TX DA would accept the charges, and no jury would convict me. In the world outside the pages of the TPC your argument has no merit.

I know I'm going to regret this. Can't stand it any longer though. I've been reading this thread all day. One would think that a person who is such an authority on the laws of our fine State would know the difference between "then" and "than", and would understand VERY basic sentence structure.

Sorry. I had to do it.

[Longshot38]

You might be a fine attorney who wrote TPC 46 but there is more to the Penal Code then that. And I can promise you that in real world practical application of the law you are dead wrong, I know this because I live it everyday. And I will stand behind what I have said to the point being the first test case. I am confident in this because no officer would charge me, no TX DA would accept the charges, and no jury would convict me. In the world outside the pages of the TPC your argument has no merit.

I know I'm going to regret this. Can't stand it any longer though. I've been reading this thread all day. One would think that a person who is such an authority on the laws of our fine State would know the difference between "then" and "than", and would understand VERY basic sentence structure.

Sorry. I had to do it.

I'm glad you find my dyslexia so amusing seeing as I have so much control over that.

[Keith B]

You might be a fine attorney who wrote TPC 46 but there is more to the Penal Code then that. And I can promise you that in real world practical application of the law you are dead wrong, I know this because I live it everyday. And I will stand behind what I have said to the point being the first test case. I am confident in this because no officer would charge me, no TX DA would accept the charges, and no jury would convict me. In the world outside the pages of the TPC your argument has no merit.

I know I'm going to regret this. Can't stand it any longer though. I've been reading this thread all day. One would think that a person who is such an authority on the laws of our fine State would know the difference between "then" and "than", and would understand VERY basic sentence structure.

Sorry. I had to do it.

I'm glad you find my dyslexia so amusing seeing as I have so much control over that.

Maybe if you're dyslexic it affects the way you are reading the law and failing to get the proper comprehension?

[longtooth]

You might be a fine attorney who wrote TPC 46 but there is more to the Penal Code then that. And I can promise you that in real world practical application of the law you are dead wrong, I know this because I live it everyday. And I will stand behind what I have said to the point being the first test case. I am confident in this because no officer would charge me, no TX DA would accept the charges, and no jury would convict me. In the world outside the pages of the TPC your argument has no merit.

I know I'm going to regret this. Can't stand it any longer though. I've been reading this thread all day. One would think that a person who is such an authority on the laws of our fine State would know the difference between "then" and "than", and would understand VERY basic sentence structure.

Sorry. I had to do it.

I'm glad you find my dyslexia so amusing seeing as I have so much control over that.

Maybe if you're dyslexic it affects the way you are reading the law and failing to get the proper comprehension?

That is bound to be the fault in this thread. It is very evident that his self evaluation makes him way smarter than Charles & Steve both put together.
OK Back to my room.