Re: PC 46.02. What does "recklessly carry" Mean?

[K5GU]

In regards to Texas Penal Code, Section 46 "Weapons":
Does anyone know of any cases, opinions, or interpretations related to the "reckless carry" portion of this code?

"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
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control."

BTW, they discussed HB 1509 today which amends 46.02 with new wording that would basically allow consent to carry be given by property owners.

On the surface, and given the various exceptions and/or defense to prosecution sections related to 46.02, does this mean it's okay to "..recklessly.." carry? Hope not. But since I found no definitions of "recklessly" and how it applies to the carrying of weapons, I suppose we'd need to rely on past cases for a better interpretation.
Thanks.

[jimlongley]

My own personal interpretation probably does not match what the lawmakers had in mind at the time, but I think it's reckless to drop your gun on the restroom floor, or the restaurant chair as you take off your jacket, or any number of other circumstances where people in the know might slap you upside the head for being downright stupid. Not that any of those have ever happened to me.

[WildBill]

Maybe this will help - I found this reference that gives the definition of reckless. I am not a lawyer, so it is still a bit difficult for me to give an example for carrying a handgun knowingly versus recklessly.

PENAL CODE TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
CHAPTER 6. CULPABILITY GENERALLY

Sec. 6.02. REQUIREMENT OF CULPABILITY. (a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

(1) intentional;

(2) knowing;

(3) reckless;

(4) criminal negligence.

(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

(f) An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23.

Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

http://www.statutes.legis.state.tx.us/S ... m/PE.6.htm" onclick="window.open(this.href);return false;

[K5GU]

Maybe this will help - I found this reference that gives the definition of reckless. I am not a lawyer, so it is still a bit difficult for me to give an example for carrying a handgun knowingly versus recklessly.

PENAL CODE TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
CHAPTER 6. CULPABILITY GENERALLY

Sec. 6.02. REQUIREMENT OF CULPABILITY. (a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

(1) intentional;

(2) knowing;

(3) reckless;

(4) criminal negligence.

(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

(f) An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23.

Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

http://www.statutes.legis.state.tx.us/S ... m/PE.6.htm" onclick="window.open(this.href);return false;

Thanks for that information. So hypothetically do you think that when I'm carrying on my own property, 46.02 would not apply, or am I reading it wrong? (remember, I'm old!) !

[WildBill]

Thanks for that information. So hypothetically do you think that when I'm carrying on my own property, 46.02 would not apply, or am I reading it wrong? (remember, I'm old!) !

ANAL, but I am old too! I do not think that 46.02 applies.

[WildBill]

I am still trying to figure out how to "carry" recklessly.

I know how you could intentionally, knowingly or recklessly shoot someone, but carry?

[EEllis]

I am still trying to figure out how to "carry" recklessly.

I know how you could intentionally, knowingly or recklessly shoot someone, but carry?

How about if you carried in an area where firing a gun would pose a danger? If you can't reasonably use a firearm then I can see having it at all could be considered reckless for legal purposes. It sure sounds like boilerplate law that I would assume is left vague because it's not like anyone could come up with all the possibilities of human stupidity when writing a law.

[Wes]

Would it not be reckless to walk around pistol or rifle in hand and finger on the trigger when you are not in a situation to fire? An AR/AK slung over your should gripped and ready just walking down the street?

[K5GU]

I'm wondering if, let's say, while in my sandwich store openly carrying my holstered handgun and I stand inside my open front door with the gun clearly visible from the sidewalk (I'm still on my premises), if that could be considered "recklessly carrying", and what statute would be applied?

[Keith B]

I'm wondering if, let's say, while in my sandwich store openly carrying my holstered handgun and I stand inside my open front door with the gun clearly visible from the sidewalk (I'm still on my premises), if that could be considered "recklessly carrying", and what statute would be applied?

You would probably not be charged under 46.02, but under 42.01(8) 'displays a firearm or other deadly weapon in a public place in a manner calculated to alarm'. Or, as a CHL you might be charged under 46.035(a) 'A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place'.

Even though you were on your own property, it could be construed that a firearm visible to the sidewalk would be considered a public place.

[K5GU]

I'm wondering if, let's say, while in my sandwich store openly carrying my holstered handgun and I stand inside my open front door with the gun clearly visible from the sidewalk (I'm still on my premises), if that could be considered "recklessly carrying", and what statute would be applied?

You would probably not be charged under 46.02, but under 42.01(8) 'displays a firearm or other deadly weapon in a public place in a manner calculated to alarm'. Or, as a CHL you might be charged under 46.035(a) 'A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place'.

Even though you were on your own property, it could be construed that a firearm visible to the sidewalk would be considered a public place.

Thanks. And it might also technically come down to 1. if "in a public place" includes the common area as defined in "Penal Code Title 1. Sec. 1.07. DEFINITIONS. (a) (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." I'm not sure inside my door on my premises can be called a "common area", but there is also the "but is not limited to" phrase to deal with, and 2. If displaying a holstered handgun could be considered "in a manner calculated to alarm".

If number 2. is true, and Open Carry becomes law, there may be a need for some amendments to the Penal Code?

I'm in no way an expert on these things, but since I often use the adjective "law-abiding" in referring to myself, I want to feel sure I really am law-abiding. Thanks again!

[K5GU]

I am still trying to figure out how to "carry" recklessly.

I know how you could intentionally, knowingly or recklessly shoot someone, but carry?

How about if you carried in an area where firing a gun would pose a danger? If you can't reasonably use a firearm then I can see having it at all could be considered reckless for legal purposes. It sure sounds like boilerplate law that I would assume is left vague because it's not like anyone could come up with all the possibilities of human stupidity when writing a law.

I think whenever you fire a gun there's an element of danger by definition. And you're right. If you aren't able to safely manage a firearm you're carrying, you need to leave it at home for sure.

[WildBill]

I am still trying to figure out how to "carry" recklessly.

I know how you could intentionally, knowingly or recklessly shoot someone, but carry?

How about if you carried in an area where firing a gun would pose a danger? If you can't reasonably use a firearm then I can see having it at all could be considered reckless for legal purposes. It sure sounds like boilerplate law that I would assume is left vague because it's not like anyone could come up with all the possibilities of human stupidity when writing a law.

I agree with your statement that it is probably a "boilerplate" law that would allow a conviction under circumstances that may not be ordinary or typical.

[gljjt]

Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

http://www.statutes.legis.state.tx.us/S ... m/PE.6.htm" onclick="window.open(this.href);return false;

Here is my non-legal interpretation.

(a) you wanted it (the "bad" thing) to happen
(b) you knew it would happen but you did it anyway
(c) you knew it may happen but you did it anyway
(d) you are stupid

[apostate]

I am still trying to figure out how to "carry" recklessly.

I think the answer lies in the definitions of culpable mental states you quoted earlier.

Suppose somebody without a CHL is hunting with a handgun on grandpa's ranch. Legal, right? They get in their truck to drive home and leave the handgun holstered on their body. Legal as long as the handgun is not in plain view, right? During the hour long drive home, they notice they're low on gas and stop to refuel but forget (or "forget") they have a handgun on their person and step out of their truck with a holstered handgun. Oops!

Or suppose someone is at the deer lease and makes a run to the store. They remember to stow their firearm but forget about the 6" hunting knife on their belt. A prosecutor could make a case they were reckless. They didn't intentionally or knowingly (in the moment) carry an illegal knife into H.E.B. but they arguably failed to exercise due care. Plus it probably didn't even cross their mind the H.E.B. sells beer and wine, triggering the felony upgrade.