Demistify Penal Code 46.03.a.1 (Schools)

[the real deal]

Ok, I know there has been some mixed discussions on PC 46.03 as it relatest to schools (section a, subsection 1), however I have some questions.

In 46.03:

§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly possesses or goes with a firearm, illegal knife, club,
or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or
educational institution, any grounds or building on which an
activity sponsored by a school or educational institution is being
conducted, or a passenger transportation vehicle of a school or
educational institution, whether the school or educational
institution is public or private, unless pursuant to written
regulations or written authorization of the institution;

(c) In this section:
(1) "Premises" has the meaning assigned by Section
46.035.

Ok, so based on this, you can not carry on school property, location of a school sanctioned event (except when 46.035.b.2 applies), or a transportation vehicle associated with either.

However, as has been discussed before, does not apply to:

46.035.f.3 "Premises" means a building or a portion of a
building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other
parking area.

Now, my question is this:

§ 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
SCHOOL ZONE. (a) Except as provided by Subsection (b), the
punishment prescribed for an offense under this chapter is
increased to the punishment prescribed for the next highest
category of offense if it is shown beyond a reasonable doubt on the
trial of the offense that the actor committed the offense in a place
that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place;
or
(B) an event sponsored or sanctioned by the
University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section
46.03(a)(1).
(c) In this section:
(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code.
(2) "School" means a private or public elementary or
secondary school.

Can someone explain to me how this intertwines? Can I park on the street in front of, or in the parking lot of the school, leave my firearm in the vehicle, and walk my kid into school? What if the parking lot is within 300ft of the school? Is there a difference between a weapon free zoned school and a regular public school? I would imagine all schools are "weapon free" zoned schools.

Seems like a unfriendly loop in the penal code that could come back to haunt us, or work as a defense?

[Charles L. Cotton]

NOTE: This answer may well be wrong regarding TPC §46.11. See the post below.

If you have a CHL, then you can have a gun on school property (on you or in your car), as long as you don't go into a building, or onto a portion of the real estate where a school sponsored activity is ongoing. (Ex. PE class on the football field; pep rally outdoors; school car wash in parking lot, etc.) NOTE: This is correct.

TPC §46.11 does not create an offense, it "merely" enhances the penalty for unlawfully carrying a firearm on school property or within 300 feet thereof. Since a CHL holder does not violate a penal code section by entering school property (other than a building or activity grounds), then 46.11 is not an issue for you. NOTE: This is partially correct.

If you don't have a CHL, then you would have a problem if you possessed any firearm anywhere on school property, or if you had possession of a handgun within 300 feet of a school and did not meet one of the exceptions to the general prohibition against carrying handguns found in TPC 46.02. (Ex. traveling, going directly to or from a firearm sporting activity; etc.) NOTE: This may be incorrect!

Regards,
Chas.

[tomneal]

Charles answered the questions as of today.

What I would really like to see in 2007, are some changes in the definition of a school.

like...

Schools only go through grade 12. Universities, trade schools, etc. shouldn't be places where you can't carry a gun.

Church schools are only schools during school. They aren't schools during church, even if they use the same rooms.



Long term, I want to reduce the places where CHL holders can't carry.


Of course I'd like to see that all employees of the school district are good honest citizens. What better way to verify that than requie them to get their Texas CHL;-)
Of course, the Teachers Union will fight that tooth-and-nail.
Oh well, I can dream can't I?

[HighVelocity]

Interesting. What about a school carwash in a gas station or restaurant parking lot? That happens here all the time.

[rgoldy]

I am not sure that it makes a difference in the question, but, when I see a car wash type event around here, it is almost never on school property, nor is it sponsored by the school. Almost always on private property, (fast food, bank, grocery store etc), and almost always one of the extra-curricular clubs or band boosters, or cheer leader boosters. As such it would seem to be a serious stretch to try to classify the event in such a way as to fall under the prohibition.

[Charles L. Cotton]

Ignore my previous answer! I'm leaving it in only so this post will have a reference point.

I have to admit that I haven't spent any time dealing with the Weapon-Free School Zone statute since CHL holders are essentially exempt. After reviewing the Section further, I find a rather interesting conflict. TPC 46.11(b) states "This section does not apply to an offense under Section 46.03(a)(1)." TPC 46.03(a)(1) applies to carrying a firearm, illegal knife, club or prohibited weapon on schools grounds, etc. So it appears Sub-Section (b) guts the Weapon-Free School Zone statute to the extent firearms are carried on school grounds, but not if they are within 300 feet of same!

TPC 46.11 applies to all portions of TPC Ch. 46 dealing with weapons, so the answer to this apparent conflict may lie in other provisions in Ch. 46, but I don't have time to look now.

I did note an interesting point; "premises" is defined as in the Health and Safety Code §481.134 which includes everything on the real estate.

Regards,
Chas.

UPDATE: I think I understand. TPC 46.11 is a penalty-enhancing provision. Violation of 46.03(a)(1) is already a third degree felony, so the Legislature probably didn't feel the need to upgrade it to a second degree felony. UCW not on school grounds is a Class A misdemeanor, but pursuant to TPC §46.11 it would be upgraded to a third degree felony, if committed within 300 feet of a school.

But note, §46.11(a)(2) applies "on premises where (A) an official school function is taking place;" Since this section adopts the definition of "premises" found in Health and Safety Code §481.134, it includes everything on the real estate, i.e. parking lots, garages, walkway, etc., everything that is excluded from the definition found in §46.035. Again, this is not establishing a crime, it is enhancing the penalty in the event a crime has been committed.

This is a very convoluted and contradictory provision in the Penal Code.

Chas.

P.S. This is a hoot. The Weapons-Free School Zones don't apply to schools!

[the real deal]

Thanks Chas. This was why I posted it, it is very convoluted.

However, if I read correctly, are you stating that these only apply to UCW? I read it as stating a CHL holder can not carry on the premise of a school, which drags them into this convoluted mix of references to premise.

Reason why I say this is TPC 46.03.f:

(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

[tomneal]

Sometimes I wonder if it wouldn't be simpler just to carry a long gun.

At least in Texas "everyone" knows that it's legal to carry a long gun.

Of course, I wonder if the judge would mind when I showed up for jury duty?

[ghentry]

And they say that "ignorance of the law is no excuse"?

[Charles L. Cotton]

Thanks Chas. This was why I posted it, it is very convoluted.

However, if I read correctly, are you stating that these only apply to UCW? I read it as stating a CHL holder can not carry on the premise of a school, which drags them into this convoluted mix of references to premise.

Reason why I say this is TPC 46.03.f:

(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

Correct, a CHL cannot carry on the premises of a school, but "premises" is defined to apply only to a building or portion of a building. TPC §46.03(c)(1) adopting TPC §46.035(f)(3). Thus, you can carry on school grounds, parking lots, garages, etc., just not in the buildings. (Not on grounds either, if school activities are on going.)

Regards,
Chas.

[oilman]

I really appreciate this forum. I was reading these sections of the penal code last night and wondering how they all interelated with one another.

[the real deal]

I think I understand it after thinking about it some more.

In 46.03, schools, among other places, are identified as places that you can not carry.

46.035.f.3 further isolates this so that you can carry in your vehicle as well as around the place, but not in the buildings.

However, 46.11 further isolates how all this pertains to schools directly, and forbids carrying it within 300 feet, making 46.053.f.3 applicable to only the other places stated in 46.03.

I think that is right just based on the order in the TPC. If correct, you can not have a weapon within 300 feet whether UCW or CHL.

[Charles L. Cotton]

I think I understand it after thinking about it some more.

In 46.03, schools, among other places, are identified as places that you can not carry.

46.035.f.3 further isolates this so that you can carry in your vehicle as well as around the place, but not in the buildings.

However, 46.11 further isolates how all this pertains to schools directly, and forbids carrying it within 300 feet, making 46.053.f.3 applicable to only the other places stated in 46.03.

I think that is right just based on the order in the TPC. If correct, you can not have a weapon within 300 feet whether UCW or CHL.

You're almost there. §46.11 does not create an offense where none exists. It only increases the penalty if you have already committed a crime. It is not a crime for a CHL to have a handgun within 300 feet of a school. It's not a crime for a non-CHL to have a long gun within 300 feet of a school. If a person is illegally carrying a handgun in violation of TPC §46.02 and happens to be within 300 feet of a school, then the penalty is raised from a Class A misdemeanor to a third degree felony.

Chas.

[jimlongley]

Thanks Chas. This was why I posted it, it is very convoluted.

However, if I read correctly, are you stating that these only apply to UCW? I read it as stating a CHL holder can not carry on the premise of a school, which drags them into this convoluted mix of references to premise.

Reason why I say this is TPC 46.03.f:

(f) It is not a defense to prosecution under this section
that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code.

Correct, a CHL cannot carry on the premises of a school, but "premises" is defined to apply only to a building or portion of a building. TPC §46.03(c)(1) adopting TPC §46.035(f)(3). Thus, you can carry on school grounds, parking lots, garages, etc., just not in the buildings. (Not on grounds either, if school activities are on going.)

Regards,
Chas.

And if the school district posts the driveways with 30.06 signs? Of course, Plano Independent School Districts signs do not comply with 30.06, but when I called the state to find out who enforces the provision that the signs had to meet the parameters stated in the law, I was told that they considered just the attempt to be a valid posting and did I want to be a test case.

[Charles L. Cotton]

And if the school district posts the driveways with 30.06 signs? Of course, Plano Independent School Districts signs do not comply with 30.06, but when I called the state to find out who enforces the provision that the signs had to meet the parameters stated in the law, I was told that they considered just the attempt to be a valid posting and did I want to be a test case.

Schools districts are units of local government, so 30.06 signs are ineffective on parking lots.

I also have heard that some agencies are trying to argue that language close to that required by 30.06 is sufficient. However, close doesn't count in 30.06 prosecutions. It is rare for any statute to require specific language for it to be effective, but that is precisely the situation with §30.06. I've never seen a statute so clear in it's notice requirement:

(3) "Written communication" means:
(A) a card or other document on which is written
language identical to the following: "Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed
handgun), a person licensed under Subchapter H, Chapter 411,
Government Code (concealed handgun law), may not enter this
property with a concealed handgun"; or

(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height; and . . .

"Identical" means just that - the exact language, not close, not a valiant try, not a good faith effort.

I must admit I'm getting quite tired of people who should be role models for law abiding citizens ignoring the clear and unambiguous requirements of the law.

Regards,
Chas.