Parking Lots and 30.06 (again)......

[AggieMM]

I know, I hate to do it, but I have a 30.06 and parking lot question. While driving to work, I had a thought come up. Here's the scenario.

My company has legally posted 30.06 signs on all 10+ entrances to their campus facility here in Austin. They are legal, sign position, wording, size of letters, location, and the company owns the property, so no issues there.

When I approach the property, I pull into a parking lot next to my company's property, place the PDA (Personal Defense Accessory) in the trunk, then proceed onto my company's property, passing the 30.06. I do this so I'm not violating the "on or about your person" definition of carrying, and therefore by having it in the trunk, I'm not violating the 30.06.

HOWEVER, I got to thinking, now that the "traveling law" has been cleared up, people without CHLs can leave it in the glove box/under seat. Since they don't have a CHL, they aren't violating the 30.06, ie licensed carry? Do non CHLs have a "perk" over CHLs? People with CHLs can't leave it in the glove box/under seat, or did the new law exempt us?

So, my question is basically, can I leave it in the glove box instead of stopping and putting it in my trunk? Even though there is a proper 30.06 sign?

Thanks for enduring another parking lot / 30.06 question.

Ryan

[seamusTX]

IMHO, a person without a CHL who takes a firearms past a "no guns" sign could be charged with 30.05 criminal trespass.

I don't think there's any loophole for CHL holders. I think that police and DAs are going to continue to interpret the CHL law regardless of the changes to 46.02.

As usual, IANAL.

P.S.: I had typed 47.02 and changed it. Penal Code 46.02 is the unlawful carry law that was changed this year to allow concealed carry in vehicles.

- Jim

[Renegade]

HOWEVER, I got to thinking, now that the "traveling law" has been cleared up, people without CHLs can leave it in the glove boxunder seat. Since they don't have a CHL, they aren't violating the 30.06, ie licensed carry? Do non CHLs have a "perk" over CHLs? People with CHLs can't leave it in the glove box/under seat, or did the new law exempt us?

This is my interpretation. When you in your car, you are NOT carrying under authority of CHL, based on new law. Just like an off-duty Peace Officer, who also has a CHL, can drive or walk right past a 30.06 sign, as he is NOT carrying under CHL law either. Likewise, when I am at a gun show, and am open carrying, I am NOT carrying under CHL law either. There are lots of instanced when CHLs can lawfully carry NOT under CHL law.

Also, no need to hide it under seat, you can keep in on your person, as law only requires it not be in plain view, which it should not be.

[TacShot]

I believe seamus has nailed it.

[Renegade]

I believe seamus has nailed it.

I do not think he understood the question since his answer had nothing to do with what was asked. Thus I think you missed it too. Perhaps he/you can take another shot at it.

1) The question had nothing to do with non-CHL holders.

2) The question had nothing to do with loopholes for CHLs.

The question is basically, if you are lawfully carrying a handgun on or about your person, based on authority from multiple portions of the Penal Code and/or Case Law, what is the order of precedence?

In this specific instance, OP wants to know if it is possible to carry a handgun on or about one's person NOT under authority of CHL law. Open carry of a handgun at a gun show by a CHL is an example I gave.

[CWOOD]

I'll try to field this. As Ryan knows, I am not a laywer, either.

There are reasonable legal arguements for what AggieMM thinks might be the case. There are also reasonable legal arguements for the opposite view. That is the problem.

As far as I know, there is no case law on that particular point. Therefore the actual legal interpretation of the application of the various statutes, which may appear to be in conflict, is unsettled.

For better or worse, the is not an uncommon situation regarding laws relating the CHL's. As a group we are so darned law-abiding and judicious in our judgement, that these issues do not frequently come to court where they could be settled. We are judicious and thoughtful, but don't want to be the test case...more good judgement.

Sorry I couldn't provide a more difinitive statement. I don't think it has been developed yet. When a jury or a judge in a trial determines the answer to the question, then, for a while, it will be decided. Until then we can only guess.

Regards

[AggieMM]

Thanks Renegade.

Let's see if I can clarify/simplify my question. Assuming you are entering a parking lot that has a proper/legal 30.06 sign, and you have a handgun on/or about the person:

1) Can a CHL'r continue on past the sign with the handgun (on/or about the person), park the car, and leave the handgun in the car?

2) Can a non-CHL'r do the same, since 30.06 does not apply to a non-CHL'r.

In both cases, they would be utilizing the new "traveling" law, and does the traveling law preempt the 30.06 for CHL'rs?

It just seems weird if you think about it. Non CHL'rs can ignore that sign (30.06), as only the "licensed" carry beyond that point is prohibited. Seems the 30.06 on a parking lot is only penalizing a CHL'r. That's where my confusion is..........

Ryan

[Renegade]

Thanks Renegade.

No problem, it is an important question, and I want to know what others think too. Since the law is only 27 days old, there is not likely to be much Case Law or even official opinion. So we need Internet Opinion, preferably with references.

There is plenty of experience with similarities to this situation that have been answered over the last 10+ years. I mentioned a couple.

[seamusTX]

The question is basically, if you are lawfully carrying a handgun on or about your person, based on authority from multiple portions of the Penal Code and/or Case Law, what is the order of precedence?

I don't think the concept of a CHL holder carrying under authority other than the CHL law is a valid concept.

Such a concept is not explicit in the law, and no case law has been established.

For example, it has always been legal to carry a handgun while traveling. But if you're driving from Houston to Dallas and are asked for ID in Huntsville, I believe you have to display your CHL.

Here's my thinking in more detail: PC 30.05 defines criminal trespass. It exempts CHL holders in these words:

(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.

By implication, everyone except CHLs (and LEOs) is liable to charges of criminal trespass for carrying a weapon past a generic "no guns" sign.

Then PC 30.06 defines criminal trespass by a CHL holder if the appropriate sign is displayed or oral notice is given.

So either you're not a CHL and you're nailed under 30.05, or you are a CHL and you're nailed under 30.06.

Again, IMHO, this state of affairs applies to a rifle in the trunk as well as a concealed handgun on your person.

- Jim

[Renegade]

The question is basically, if you are lawfully carrying a handgun on or about your person, based on authority from multiple portions of the Penal Code and/or Case Law, what is the order of precedence?

I don't think the concept of a CHL holder carrying under authority other than the CHL law is a valid concept.

Why not? It happens all the time. Try these examples:

1) Suppose you are at a gun range/show. You are open carrying your handgun as you move around the range/show. This is illegal (failure to conceal), if you are carrying under CHL law. But you are not carrying under CHL law, even though you have a CHL. Thus no offense is committed.

2) Peace Officer has a CHL and concealed handgun. Walks past 30.06 sign and gets caught. No crime occurs even though he has a CHL, as he is not carrying under authority of CHL law.

3) Peace Officer has CHL and concealed handgun. Gets asked for ID, provides LEO ID, not DL & CHL. No crime occurs even though he has a CHL, as he is not carrying under authority of CHL law.

I can come up with hundreds of example of how a CHL can legally carry NOT under authority of CHL law. That is easy. Texans have been legally carrying handguns under a variety of Laws, and Case Law for 125+ years. Surely all of this is not "given up" when you get a CHL?

[AggieMM]

Ah, now I see your point Jim, but I have a question. I'm reading 30.05, and the entry with a handgun is an offense, assuming that entry was prohibited? But I'm not prohibited from entering the parking lot, right? So would 30.05 not apply?

My head hurts, I'm confused........

Ryan

[Renegade]

So either you're not a CHL and you're nailed under 30.05

I do not believe the 30.05 no guns signs are pre-emptive (kinda like no shirts, no shoes no service are not pre-emptive). This was the problem in 1995-97 before 30.06. Thus 30.06 was created to be pre-emptive.

[seamusTX]

1) Suppose you are at a gun range/show. You are open carrying your handgun as you move around the range/show. This is illegal (failure to conceal), if you are carrying under CHL law. But you are not carrying under CHL law, even though you have a CHL. Thus no offense is committed.

I'll grant you the range angle, because it has always been legal to carry a handgun openly at the range, or on the way to or from one.

The law does not explictly allow you to possess a handgun at a gun show or in a gun store. It is more a matter of common sense and custom to allow possession at gun shows.

In the LEO examples, the law explicitly gives LEOs privileges that the rest of don't have. LEOs don't get a CHL so that they can carry; they get it so that they don't have to show their LEO ID in some circumstances. Note the underlined text:

GC §411.198. LAW ENFORCEMENT OFFICER ALIAS HANDGUN LICENSE.
(a) On written approval of the director, the department may issue to a law enforcement officer an alias license to carry a concealed handgun to be used in supervised activities involving criminal investigations.
(b) It is a defense to prosecution under Section 46.035, Penal Code, that the actor, at the time of the commission of the offense, was the holder of an alias license issued under this section.

That means LEOs who have a CHL can carry in places where ordinary CHL holders cannot (bars, etc.).

Try this scenario: You are driving while armed. You are stopped and asked for ID. You give the officer your driver license but not your CHL. The officer runs your DL number, comes back, and says, "I notice you have a CHL. Are you armed?"

Now, do you want to argue with the officer on the side of the road that you didn't have to display your CHL because you're carrying under authority of 46.02? I don't.

- Jim

[seamusTX]

Ah, now I see your point seamusTX, but I have a question. I'm reading 30.05, and the entry with a handgun is an offense, assuming that entry was prohibited? But I'm not prohibited from entering the parking lot, right? So would 30.05 not apply?

As I understand it (and I am still not a lawyer), there are two levels of criminal trespass:

• entering a place that is completely off-limits to the public, like a residence
• entering a place that is normally open to the public, but refusing to follow the conditions of entry

For example, if you bring a dog (other than a service animal) into a place with a "no pets" sign, and they ask you to leave, and you refuse, you can be arrested for criminal trespass.

I think the same principle applies to generic "no guns" signs and non-CHL holders.

A privately owned parking lot can be subject to such restrictions, just ilke a building. For example, many businesses prohibit trailers in their parking lots.

I do not believe the 30.05 no guns signs are pre-emptive (kinda like no shirts, no shoes no service are not pre-emptive). This was the problem in 1995-97 before 30.06. Thus 30.06 was created to be pre-emptive.

I don't know what you mean by "pre-emptive."

If a property owner says you must wear shoes and a shirt, or you can't bring in a dog or talk on a cell phone, you obligated to comply or be charged with criminal trespass.

- Jim