Open carry within a private gated community

[rp_photo]

If someone is inside a private gated community in Texas and the community has no specific rules, would they be able to open carry a handgun on the streets legally?

[RPBrown]

Only if you own or in total charge of the community. Otherwise its just for your property

[jbarn]

If someone is inside a private gated community in Texas and the community has no specific rules, would they be able to open carry a handgun on the streets legally?

Penal code 46.02 makes it unlawful to carry a handgun if you are not on your own premises or premises under your control. (I am intentionally not covering cars and boats) So the question is; is it YOUR premises? Is the Premises under your control? (Can you control who comes and goes?)

However, with a CHL that law (penal code 46.02) does not apply. So the question now is; with a CHL can one open carry in a gated community.

PC 46.035 makes it unlawful to carry a handgun under the authority of a CHL and intentionally display the handgun in a public place in plain view of another (changed Sept1, 2013)

We now have to ask if the streets and other public areas of a gated community are a public place. The penal code defines public place as

Texas Penal Code
Sec. 1.07. DEFINITIONS. (a) In this code:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Does a substantial group of the public have access to the community?

I cannot answer that, but I bet you get some interesting conversation!

I can also throw another kink in; The law that allows carry under a CHL, section 46.15(b), states that penal code 46.02 does not apply to a person who is carrying a CONCEALED handgun and a license. So the catch 22 might be that even if 46.035 would allow open carry in a specific circumstance, if the handgun is not concealed then you must obey 46.02, and we are back to the question if you control the property?

Clear as mud yet?

[WildBill]

If someone is inside a private gated community in Texas and the community has no specific rules, would they be able to open carry a handgun on the streets legally?

I don't think the community rules would have anything to do with legality. Of course, I am not a lawyer, so I don't have any opinion.

[Oldgringo]

Sure...for maybe 10-20 minutes.

[MoJo]

Sure...for maybe 10-20 minutes.

Goo 'un OG!

[jmra]

Sure...for maybe 10-20 minutes.

[srothstein]

Texas Penal Code
Sec. 1.07. DEFINITIONS. (a) In this code:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Does a substantial group of the public have access to the community?

I think you have your answer right in the quote of the law. Notice that it says the common areas of apartment houses? That is all private property and could even be a gated apartment complex that most people cannot enter. I cannot think of any difference between the common area of a gated community and the common area of an apartment complex.

[o b juan]

Why are folks so intrested in Open Carry and the other thing Enhaced CHL??

[jbarn]

Why are folks so intrested in Open Carry and the other thing Enhaced CHL??

I suspect because they do not like the restrictions currently in place.

[jmra]

Why are folks so intrested in Open Carry and the other thing Enhaced CHL??

I suspect because they do not like the restrictions currently in place.

I think he was looking for something a little deeper than the obvious.

[jbarn]

Why are folks so intrested in Open Carry and the other thing Enhaced CHL??

I suspect because they do not like the restrictions currently in place.

I think he was looking for something a little deeper than the obvious.

I know, but that's about as deep as I get.

[jmra]

Why are folks so intrested in Open Carry and the other thing Enhaced CHL??

I suspect because they do not like the restrictions currently in place.

I think he was looking for something a little deeper than the obvious.

I know, but that's about as deep as I get.

Obviously.

[WildBill]

Texas Penal Code
Sec. 1.07. DEFINITIONS. (a) In this code:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Does a substantial group of the public have access to the community?

I think you have your answer right in the quote of the law. Notice that it says the common areas of apartment houses? That is all private property and could even be a gated apartment complex that most people cannot enter. I cannot think of any difference between the common area of a gated community and the common area of an apartment complex.

Very good point Steve. It appears that the only difference would be the size [area] of the fence.

[JALLEN]

Texas Penal Code
Sec. 1.07. DEFINITIONS. (a) In this code:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Does a substantial group of the public have access to the community?

I think you have your answer right in the quote of the law. Notice that it says the common areas of apartment houses? That is all private property and could even be a gated apartment complex that most people cannot enter. I cannot think of any difference between the common area of a gated community and the common area of an apartment complex.

The public does not have access to the common areas of the gated community, at least in theory. Everyone must be either an owner or a business invitee, someone on the property at the invitation of an owner. That removes the "substantial" requirement at least in my mind.

BTW, as of next week I will no longer be able to hold myself out as an attorney, as I have elected inactive status with the State Bar of California. I intend to resign by the end of the year probably.