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

[Renegade]

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.

Gun law enforcement is not based on "common sense or custom", is it based on law or case law. I am sure the Harris County DA would certainly prosecute CHLs for open carry at gun show if he could; he legally can't.

Anyway, that is what allows you to carry in those instances. CHL law has NO PROVISION for allowing you to INTENTIONALLY carry unconcealed, thus when you do it, you are doing it under authority of some other law or case law, or you are committing are crime. No other choices.

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.

I think it is a stretch to claim why LEOs get CHLs. All the ones I know got it to 1) avoid NICS check, 2) carry out of state (before Fed Law), 3) lawfully carry if suspended. None got it for the reasons you cite, and 2 out of the 3 reasons cited involve actually carrying.

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.).

No, that means they can give a law enforcement officer a handgun license under a different name, so he can legally be armed in an undercover situation. And when he gets arrested (obviously he is not going to blow his cover and ID himself as a LEO) in a place a CHL should not be, he is not violation of the law.

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

There is no argument, you are required to show DL/CHL. The law requiring it makes no distinction as to whether the gun is loaded, unloaded, concealed, unconcealed, or whether you are a Peace Officer or not, or even if you are carrying under CHL law or not (thus I was wrong in example #3 above), all CHLS MUST provide DL/CHL if asked for ID, EVEN PEACE OFFICERS with CHLs.

§ 411.205. DISPLAYING LICENSE; PENALTY. (a) If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

[Renegade]

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

I mean you are instantly in violation of the law the instant you enter the property, without any further notice. This is why we have 30.06, it provides for instant violation. Prior to 30.06, there was no instant violation, as the ghost-buster signs had no known legal meaning, and still do not.

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

That is my point, until the property owner confronts you, you are not in violation (barring any health code I do not know about).

[seamusTX]

Gun law enforcement is not based on "common sense or custom", is it based on law or case law.

PC §46.02 makes it illegal to carry a handgun except on premises or a vehicle that you control (I'm leaving out the details for simplicity).

PC §46.15 makes 46.02 not applicable in certain situations, such as traveling or having a CHL.

Nowhere in the law is it explicitly legal to touch a handgun at a gun show or in a gun store, or in transit to or from those places.

I think it is a stretch to claim why LEOs get CHLs.

I've never paid attention to that part of the law because it doesn't apply to me. I just don't know.

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.

There is no argument, you are required to show DL/CHL. The law requiring it makes no distinction as to whether the gun is loaded, unloaded, concealed, unconcealed, or whether you are a Peace Officer or not, or even if you are carrying under CHL law or not

I agree, of course.

I don't see how (supposedly) carrying under the authority of 46.02 gets you out of PC §30.06 but not GC §411.205.

I'm not trying to flog this issue to death. I'm concerned that someone might act on this theory and end up in jail.

(I think nearly all firearms regulations are unconstitutional, but I'm going to obey them until they're repealed.)

- Jim

[seamusTX]

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.

That is my point, until the property owner confronts you, you are not in violation (barring any health code I do not know about).

I just don't know how that kind of thing works, legally.

As a practical matter, property owners are going to tell you to leave before calling the police, unless you're acting violently.

Please remember, though, the original question is about a workplace. Employers tell their employees in advance that weapons are prohibited by company policy.

I very much doubt that employers simply tell their employees to read the policy manual these days. They require a signature under a statement that the employee understands the policy. I have to sign such a statement once a year.

- Jim

[Renegade]

Gun law enforcement is not based on "common sense or custom", is it based on law or case law.

PC §46.02 makes it illegal to carry a handgun except on premises or a vehicle that you control (I'm leaving out the details for simplicity).

PC §46.15 makes 46.02 not applicable in certain situations, such as traveling or having a CHL.

Nowhere in the law is it explicitly legal to touch a handgun at a gun show or in a gun store, or in transit to or from those places.

The majority of Texas Gun Law is based on Case Law, not Statute. Here are just some Case Law that relate to the carrying a handgun on or about your person, thus making it legal to have a handgun on or about your person without CHL:

1905 ~ __Fitzgerald v. State__: The Texas Court of Criminal Appeals ruled that a person who carries a pistol to and from a shop to have it repaired is not in violation of the state law prohibiting the carrying of weapons.

1912 ~ __Kellum v. State__: The Texas Court of Criminal Appeals ruled that upon obtaining a pistol, one may carry it home by the nearest practicable route and not be in violation of the state law prohibiting the carrying of weapons.

1938 ~ __Davis v. State__: The Texas Court of Criminal Appeals ruled that nonhabitual carrying of a pistol between one's home and one's place of business is lawful if it is for a legitimate purpose.

1945 ~ __Smith v. State__: The Texas Court of Criminal Appeals ruled that one has a right to carry a pistol from his place of business to his home as long as one does not do so habitually.

1978 ~ __Evers v. State__: The Texas Court of Criminal Appeals ruled that one may carry a handgun if one is on legitimate business and protecting a large sum of money.

I'm not trying to flog this issue to death. I'm concerned that someone might act on this theory and end up in jail.

Me neither, but these are important issues and folks need to know, I need to know.

I know when CHL law was enacted, its purpose was to INCREASE lawful carry of handguns by licensed folks. If most folks think recent changes result in a DECREASE in lawful carry of handguns by licensees, then the law needs to be changed.

[stevie_d_64]

Can I stretch this a little more???

Not to be a pain about this, but the posting of a 30.06 sign in my opinion is not some magical line in the sand for us...

If someone is posting a sign at the entrance to a parking lot, they are trying to bend the real purpose for that restriction...

This is why I would love to see some real teeth in penalties to those who wish to post, but you better post correctly to the law and where you can post...

Trying to set up some imaginary boundary in the entrance to parking lots is, to me, a deliberate action to deny and usurp the intent of the law...And its time the screws got tightened on those wishing to post the 30.06 signs...

[srothstein]

This is an interesting question, with some interesting side questions coming up as parts of the answers. So, I will attempt to deal with the original question, as I see it, and then may mention some other points.

To recap, the original question was if the poster could enter a private parking lot with his gun in his glovebox, if it is properly posted for 30.06. The logic was that he was not carrying under the authority of the CHL at the time.

First, we have to ask if anyone without a CHL could do this. They are not carrying under the CHL but under the current unlawfully carrying law. Is it illegal for you to enter the parking lot with a gun if you are not a CHL? Obviously, the original poster felt he could do so since he was locking the weapon in the trunk to avoid carrying it under the CHL authority.

Here we have an interesting quirk of the law that will probably get someone's attention in the next legislative session. A proper posting for 30.06 only applies to CHL holders. It is not notice to anyone else that a gun is not desired on the property. Unless they also post the traditional no guns signs, the non-CHL can carry in his car there. Remember that this was done because, at the time, the CHL was the only way to carry on a regular basis so no one though they would need a non-30.06 sign for the others. It was not true even then, but the odds of a person who was traveling entering were pretty small. So, what we have under the current law is a wierd case where a CHL could be banned but a non-CHL has not received their notice yet.

But if we look carefully at the wording of 30.06, it only applies when you are carrying under the authority of your CHL. If you are carrying under some other authority, you can ignore it. In this case, you are in a car, so you are not carrying under CHL, but just exercising a right where there is no law forbidding a behavior. Thus, you cannot be charged under 30.06.

So, my answer to the original poster would be that the 30.06 sign does not apply to him in the car. It is, for the current time, and only until someone realizes this, virtually impossible to stop a person in a car from entering a parking lot without posting multiple types of no guns signs, one of which must be 30.06.

An interesting second question was if there was a precedence to which authority to carry was being used if multiple authorities exist. The answer is yes and no. There is no legal precedence beyond the wording of the law itself. Remember that being in a car is now an element of the offense and not a separate authority. Your CHL does not come into play until you exit the car.

Can you have multiple authorities? Of course it is possible. This Saturday, I will be driving to Dallas for a convention. I will be covered by the law not applying in my car, the traveling exception, and my peace officer status. If I had a CHL, I would have another exception still. Does it matter which one is higher? No, since they all apply to say the same thing. They only time the fact that I have multiple exceptions would come into play is if I went somewhere that the traveling did not cover but my peace officer status did.

And that brings me to the other interesting point. When a peace officer is carrying and has a CHL, does he have to show the CHL to the other officer that stopped him? Yes, he does by law. The important point to remember is that the law on displaying the CHL does not say carrying under its authority. It simply says you will show it if you are armed. So, the peace officer who does not show his CHL is committing an offense. In the real world, it would probably never get noticed or reported, but it is an offense anyway. This is the same as if you are carrying on your own property and have a CHL. You are still required to show your CHL when asked for ID. You are not carrying under your CHL authority but you still have to show it.

The other rules on carrying (PC 46.035) specifically state carrying under the authority of the CHL. So if an officer has a CHL and carries in one of those, he is not breaking the law. But if he fails to show his CHL when he is asked for ID, he is breaking the law.

As an aside, most officers who I know of who get CHL's do it just to get around the NICS test. I suppose some are issued to undercover detectives so they can claim they are not cops when the people with them find them carrying, which is the reason for the "alias" CHL. An alias CHL is liek and alias DL. It helps the undercover officer build his role and keeps things off his record as he is investigating. It is mostly done so if a bad guy does try to run him, he gets a real return on the fake name.

[Sangiovese]

And that brings me to the other interesting point. When a peace officer is carrying and has a CHL, does he have to show the CHL to the other officer that stopped him? Yes, he does by law. The important point to remember is that the law on displaying the CHL does not say carrying under its authority. It simply says you will show it if you are armed. So, the peace officer who does not show his CHL is committing an offense. In the real world, it would probably never get noticed or reported, but it is an offense anyway. This is the same as if you are carrying on your own property and have a CHL. You are still required to show your CHL when asked for ID. You are not carrying under your CHL authority but you still have to show it.

So if I forget my wallet at home but am carrying and get stopped on the way to work - I cannot produce my CHL as required by law. I am now in violation of the law.

If I was not a CHL holder and got stopped in the same situation, I would not have that issue.

(Both instances have the same problem with my driver's license being at home)

My CHL just became a liability while I am in my car! I am sure that was not the intent of the legislators, but that's the fact.

Am I misunderstanding you?

[seamusTX]

The majority of Texas Gun Law is based on Case Law, not Statute. Here are just some Case Law that relate to the carrying a handgun on or about your person, ...

May I ask if that list is available in one place? I was not aware of most of these cases.

I know when CHL law was enacted, its purpose was to INCREASE lawful carry of handguns by licensed folks. If most folks think recent changes result in a DECREASE in lawful carry of handguns by licensees, then the law needs to be changed.

I don't see how the recent changes in the law would limit what a CHL holder can do. My argument is that the laws that apply to CHL are largely unchanged.

Non-CHL-holders now have more opportunity to carry, and in some cases the older laws that apply to CHL holders do not apply to non-CHL-holders -- such as identifying to law enforcement.

That is a consequence of the way legislation is made, which is not necessarily logical or well thought out.

- Jim

[Renegade]

The majority of Texas Gun Law is based on Case Law, not Statute. Here are just some Case Law that relate to the carrying a handgun on or about your person, ...

May I ask if that list is available in one place? I was not aware of most of these cases.

I know when CHL law was enacted, its purpose was to INCREASE lawful carry of handguns by licensed folks. If most folks think recent changes result in a DECREASE in lawful carry of handguns by licensees, then the law needs to be changed.

I don't see how the recent changes in the law would limit what a CHL holder can do. My argument is that the laws that apply to CHL are largely unchanged.

Non-CHL-holders now have more opportunity to carry, and in some cases the older laws that apply to CHL holders do not apply to non-CHL-holders -- such as identifying to law enforcement.

That is a consequence of the way legislation is made, which is not necessarily logical or well thought out.

- Jim

When CHL was first being debated in Texas, the legislature had a committee do research on the history of gun laws in Texas. They created a document showing this history dating back to the mid-1800s. Send me your email and I will send it to you. It is really an interesting read. So much of what we do that is legal dates back to case law over 100+ years ago.

Back on subject:

The two areas where this new law impacts the most are 30.06, which has already been covered, and the fact that a non-CHL has no legal duty to tell a Peace Officer he is armed. I sure hope this does not have the Unintended Consequence of every traffic stop starting with the Peace Officer asking if their are any firearms in the vehicle.

I also want to point out the new law does NOT require the handgun be in glove or console. Merely it not be in view. So you can keep it in a holster and physically on your person. This may also result in non-CHLs doing "concealed carry", with holsters as they transport to/from vehicle and while in vehicle.

srothstein:

Don't forget during you travel this weekend you would also have carry authority under HR218 - The Law Enforcement Officers Safety Act of 2004...

[sbb]

Renegade, you have PM

[DallasCHL]

I mean you are instantly in violation of the law the instant you enter the property, without any further notice. This is why we have 30.06, it provides for instant violation. Prior to 30.06, there was no instant violation, as the ghost-buster signs had no known legal meaning, and still do not.

Thise signs do have legal meaning, and prior to the changes to 30.05 might have even affected CHL holders. I think the answer to the original question is that regardless of whether you have a CHL (snd are carrying under authority of it) or not you can't go there or risk a trespassing charge. You're either carrying on authority of the CHL and get prosecuted under 30.06, or you're not, and you get prosecuted under 30.05. Under 30.05, a "no guns" sign is sufficient notice that if you are carrying a gun you are not welcome.

[Renegade]

I mean you are instantly in violation of the law the instant you enter the property, without any further notice. This is why we have 30.06, it provides for instant violation. Prior to 30.06, there was no instant violation, as the ghost-buster signs had no known legal meaning, and still do not.

Thise signs do have legal meaning, and prior to the changes to 30.05 might have even affected CHL holders. I think the answer to the original question is that regardless of whether you have a CHL (snd are carrying under authority of it) or not you can't go there or risk a trespassing charge. You're either carrying on authority of the CHL and get prosecuted under 30.06, or you're not, and you get prosecuted under 30.05. Under 30.05, a "no guns" sign is sufficient notice that if you are carrying a gun you are not welcome.

The signs have no legal meaning as they are completely ambiguous. For example:



Does this sign mean what it says there are 'no guns on premises' or is it a request they do not want you to bring guns on premises? Is it a request under 30.05 or just a polite informal request with no intended legal consequences? Or does it mean no autoloaders on premises, or they do not have autoloaders on premises? Does it apply to LEOs? CHLS? or is it meant for criminals?

The whole purpose of 30.06 was to clear this up and get something defined in the Penal Code, which they did. If it had legal meaning, there would have been no need for 30.06 in the first place.

As CHL/LEO mentioned in this thread, nobody gets instantly arrested - you get a CT warning first, and the if you fail to leave or come back you get cited. This is exactly what was happening before 30.06, property owners had no way to pro-actively prevent gun owners from coming on property which is what they wanted, and they got it in the form of 30.06.

Of course if could show me in 30.05 (Under 30.05, a "no guns" sign is sufficient notice that if you are carrying a gun you are not welcome.) where these signs are defined, I would be wrong. till then we all assume they mean different things and as I said, that is/was the problem.

[DallasCHL]

Of course if could show me in 30.05 (Under 30.05, a "no guns" sign is sufficient notice that if you are carrying a gun you are not welcome.) where these signs are defined, I would be wrong. till then we all assume they mean different things and as I said, that is/was the problem.

This might interest you:
http://www.txdps.state.tx.us/administra ... hl/AGO.HTM

Especially:

Under section 30.05 of the Penal Code, any person, including a license holder, who enters or remains on property or in a building of another carrying a concealed handgun without effective consent to carry and who has had notice that concealed handguns are prohibited commits a criminal offense. Senate Bill 60 is not intended to and does not permit a license holder to carry a concealed handgun on the premises of a private business contrary to notice as defined by the criminal trespass statute prohibiting the carrying of a concealed handgun.

We believe that the above discussion also addresses your next question: "If the bill does not prohibit such, does it provide any specific requirements that the business owner/operator must comply with in order to restrict [a license holder] from carrying concealed [handguns] on [the owner's or operator's] premises?" We would further note that although Senate Bill 60 does not set forth any specific requirements that a business owner or operator must comply with in order to restrict a license holder from carrying concealed handguns on the premises of the business, we believe that the business owner or operator must provide notice, as defined by the criminal trespass statute, that concealed handguns are prohibited. Given that a business owner or operator should not be able to ascertain that a person is carrying a concealed handgun, making oral communication impractical, a posted sign would be the most effective notice.

Note that this was before 30.06 and the changes to 30.05 limiting it's applicability against CHL holders.

An Attorney General's interpretation of the law is not "The Law", but it's close enough. Unless you can prove that it is clearly wrong, a court will most likely follow it.

Your argument with the sign in your picture would be that it doesn't give reasonable notice. But if the same sign were posted on the door of a specific business, I don't think you would win that argument. I wouldn't hang your hat on the fact that DPD's policy is only to arrest after an officer witnesses a criminal trespass warning. You might not be so lucky elsewhere.

[Renegade]

Of course if could show me in 30.05 (Under 30.05, a "no guns" sign is sufficient notice that if you are carrying a gun you are not welcome.) where these signs are defined, I would be wrong. till then we all assume they mean different things and as I said, that is/was the problem.

This might interest you:
http://www.txdps.state.tx.us/administra ... hl/AGO.HTM

Especially:

Under section 30.05 of the Penal Code, any person, including a license holder, who enters or remains on property or in a building of another carrying a concealed handgun without effective consent to carry and who has had notice that concealed handguns are prohibited commits a criminal offense. Senate Bill 60 is not intended to and does not permit a license holder to carry a concealed handgun on the premises of a private business contrary to notice as defined by the criminal trespass statute prohibiting the carrying of a concealed handgun.

We believe that the above discussion also addresses your next question: "If the bill does not prohibit such, does it provide any specific requirements that the business owner/operator must comply with in order to restrict [a license holder] from carrying concealed [handguns] on [the owner's or operator's] premises?" We would further note that although Senate Bill 60 does not set forth any specific requirements that a business owner or operator must comply with in order to restrict a license holder from carrying concealed handguns on the premises of the business, we believe that the business owner or operator must provide notice, as defined by the criminal trespass statute, that concealed handguns are prohibited. Given that a business owner or operator should not be able to ascertain that a person is carrying a concealed handgun, making oral communication impractical, a posted sign would be the most effective notice.

Note that this was before 30.06 and the changes to 30.05 limiting it's applicability against CHL holders.

An Attorney General's interpretation of the law is not "The Law", but it's close enough. Unless you can prove that it is clearly wrong, a court will most likely follow it.

Your argument with the sign in your picture would be that it doesn't give reasonable notice. But if the same sign were posted on the door of a specific business, I don't think you would win that argument. I wouldn't hang your hat on the fact that DPD's policy is only to arrest after an officer witnesses a criminal trespass warning. You might not be so lucky elsewhere.

It was interesting 12+ years ago when it was relevant. 80% is not relevant now, as it has been supplanted with new law. The answers from that AGO are what prompted 30.06 2 years later. Did you even read it yourself? Apparently not. it supports almost everything I have said.

For instance:

The AGO also writes:

Clearly, under Texas law as it existed prior to the passage of Senate Bill 60, a business owner or operator could file a criminal complaint against a person who came on to the business premises contrary to the terms of a posted notice.

Thus acknowledging the signs are NOT pre-emptive as I said they were not.

Keep reading, the AGO writes:

Section 13 was deleted in its entirety from the committee substitute for Senate Bill 60 on the Senate floor. S.J. OF TEX., 74th Leg., R.S. 597 (1995). It was replaced with a provision adding section 46.035 to the Penal Code. That amendment set forth a list of places where a license holder would be prohibited from carrying a handgun, including "privately owned premises commonly used by the public, if the owner of the premises prominently displays at each entrance to the premises a notice that it is unlawful to carry a handgun on the premises."

Thus the AGO points out SPECIFIC language is needed - as generic ghost-busters are ambiguous.

As for winning the argument, that was done in 1997 when 30.06 was created, specifically because it was found that ghost buster signs, No guns signs, etc., are ambiguous...