Question about Carrying into a Correctional Facility

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Vol Texan
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Question about Carrying into a Correctional Facility

Postby Vol Texan » Sun Jan 07, 2018 6:57 pm

I'm a new instructor, and I'm putting together my training materials. To be honest, I've had a good grip on the 'where can I carry / where can I not carry' for some time, but since I'm going to teach this stuff, I'm really doing my best to understand it more fully. In doing so, I've run into something that seems odd to me. (some things below I've paraphrased for brevity, rather than posting the full code)

According to

Code: Select all

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER
(g) An offense under this section is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.


So, reviewing the Subsections (b)(1) and (b)(3), I see that they are

Code: Select all

(1) 51% location
(3) correctional facility


So it's a felony of the third degree if you carry into a correctional facility with a license.

But..

While reviewing PC §46.02. UNLAWFUL CARRYING WEAPONS I see

Code: Select all

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.


PC §46.03. PLACES WEAPONS PROHIBITED adds to the places that are a felony, but does not include correctional facilities

So here is my question: It seems to me that if a non-licensed person carries into a correctional facility, it is a Class A misdemeanor, but if a licensed person does the same thing, it is a felony of the third degree. Am I reading this correctly? If not, please do point me in the right direction.
Your number one option for personal security is a lifelong commitment to avoidance, deterrence, and de-escalation.
When those fail, aim for center mass.

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imkopaka
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Re: Question about Carrying into a Correctional Facility

Postby imkopaka » Thu Jan 25, 2018 6:39 pm

Good question. Upon reviewing the statute, it appears to say (IANAL) that a license holder unlawfully carrying in any of the places listed in section 46.035 is guilty of a class A misdemeanor, with the exception of sections b-1 (51% location) and b-3 (correctional facility), which are third-degree felonies.

Section 46.02 lists places that are generally off-limits for non-LTC - basically anywhere but your property and the range. It doesn't discuss special cases; section 46.03 does. In 46.03, it says,
(g) Except as provided by Subsection (g-1), an offense under this section [including correctional facilities (section 46.03>a-1>3)] is a felony of the third degree.

(g-1) If the weapon that is the subject of the offense is a location-restricted knife, an offense under this section is a Class C misdemeanor, except that the offense is a felony of the third degree if the offense is committed under Subsection (a)(1).


So regardless of who carries a handgun into a prison, it is a third-degree felony.

Hope this helps! :tiphat:
Never bring a knife to a gun fight.
Carry gun: Springfield XD Tactical .45

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Re: Question about Carrying into a Correctional Facility

Postby Vol Texan » Thu Jan 25, 2018 7:38 pm

imkopaka wrote:Good question. Upon reviewing the statute, it appears to say (IANAL) that a license holder unlawfully carrying in any of the places listed in section 46.035 is guilty of a class A misdemeanor, with the exception of sections b-1 (51% location) and b-3 (correctional facility), which are third-degree felonies.

Section 46.02 lists places that are generally off-limits for non-LTC - basically anywhere but your property and the range. It doesn't discuss special cases; section 46.03 does. In 46.03, it says,
(g) Except as provided by Subsection (g-1), an offense under this section [including correctional facilities (section 46.03>a-1>3)] is a felony of the third degree.

(g-1) If the weapon that is the subject of the offense is a location-restricted knife, an offense under this section is a Class C misdemeanor, except that the offense is a felony of the third degree if the offense is committed under Subsection (a)(1).


So regardless of who carries a handgun into a prison, it is a third-degree felony.

Hope this helps! :tiphat:


Thanks for the explanation, but the LTC-16 that I have a copy of does NOT say that under 46.03 (g). Mine only says: (g) An offense under this section is a third degree felony. Nowhere in 46.03 does it mention correctional facilities - or at least as well as I can see.
Your number one option for personal security is a lifelong commitment to avoidance, deterrence, and de-escalation.
When those fail, aim for center mass.

www.HoustonLTC.com: Texas LTC Instructor & NRA Pistol Instructor | www.Texas3006.com Moderator | Armored Cav. | Tennessee Squire


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Re: Question about Carrying into a Correctional Facility

Postby Mike S » Thu Jan 25, 2018 7:55 pm

Vol Texan wrote:
imkopaka wrote:Good question. Upon reviewing the statute, it appears to say (IANAL) that a license holder unlawfully carrying in any of the places listed in section 46.035 is guilty of a class A misdemeanor, with the exception of sections b-1 (51% location) and b-3 (correctional facility), which are third-degree felonies.

Section 46.02 lists places that are generally off-limits for non-LTC - basically anywhere but your property and the range. It doesn't discuss special cases; section 46.03 does. In 46.03, it says,
(g) Except as provided by Subsection (g-1), an offense under this section [including correctional facilities (section 46.03>a-1>3)] is a felony of the third degree.

(g-1) If the weapon that is the subject of the offense is a location-restricted knife, an offense under this section is a Class C misdemeanor, except that the offense is a felony of the third degree if the offense is committed under Subsection (a)(1).


So regardless of who carries a handgun into a prison, it is a third-degree felony.

Hope this helps! :tiphat:


Thanks for the explanation, but the LTC-16 that I have a copy of does NOT say that under 46.03 (g). Mine only says: (g) An offense under this section is a third degree felony. Nowhere in 46.03 does it mention correctional facilities - or at least as well as I can see.


Vol Tex,
Disregard what I posted here. I inadvertantly cited 46.035, which is exactly what you already questioned...

Looks like I had nothing intelligent to add after all...

Edited to remove circular info.


imkopaka
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Re: Question about Carrying into a Correctional Facility

Postby imkopaka » Thu Jan 25, 2018 8:52 pm

My mistake, I accidentally overlooked the part of the statute where it changes from handguns to location-restricted knives. :oops:


From http://www.statutes.legis.state.tx.us/D ... /PE.46.htm:

Sec. 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, location-restricted 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:

(A) pursuant to written regulations or written authorization of the institution; or

(B) the person possesses or goes with a concealed handgun that the person is licensed to carry under Subchapter H, Chapter 411, Government Code, and no other weapon to which this section applies, on the premises of an institution of higher education or private or independent institution of higher education, on any grounds or building on which an activity sponsored by the institution is being conducted, or in a passenger transportation vehicle of the institution;

(2) on the premises of a polling place on the day of an election or while early voting is in progress;

(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;

(4) on the premises of a racetrack;

(5) in or into a secured area of an airport; or

(6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:

(A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or

(B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife:

(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the person is a participant in the event and a location-restricted knife is used in the event;

(3) on the premises of a correctional facility;

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing facility licensed under Chapter 242, Health and Safety Code, unless the person has written authorization of the hospital or nursing facility administration, as appropriate;

(5) on the premises of a mental hospital, as defined by Section 571.003, Health and Safety Code, unless the person has written authorization of the mental hospital administration;

(6) in an amusement park; or

(7) on the premises of a church, synagogue, or other established place of religious worship.

(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.

(c) In this section:

(1) "Institution of higher education" and "private or independent institution of higher education" have the meanings assigned by Section 61.003, Education Code.

(2) "Amusement park" and "premises" have the meanings assigned by Section 46.035.

(3) "Secured area" means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.

(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor's place of assignment or in the actual discharge of duties as:

(1) a member of the armed forces or national guard;

(2) a guard employed by a penal institution; or

(3) a security officer commissioned by the Texas Private Security Board if:

(A) the actor is wearing a distinctive uniform; and

(B) the firearm or club is in plain view; or

(4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:

(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's firearm in plain view; or

(B) not wearing the uniform of a security officer and carrying the officer's firearm in a concealed manner.

(e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.

(e-1) It is a defense to prosecution under Subsection (a)(5) that the actor:

(1) possessed, at the screening checkpoint for the secured area, a concealed handgun that the actor was licensed to carry under Subchapter H, Chapter 411, Government Code; and

(2) exited the screening checkpoint for the secured area immediately upon completion of the required screening processes and notification that the actor possessed the handgun.

(e-2) A peace officer investigating conduct that may constitute an offense under Subsection (a)(5) and that consists only of an actor's possession of a concealed handgun that the actor is licensed to carry under Subchapter H, Chapter 411, Government Code, may not arrest the actor for the offense unless:

(1) the officer advises the actor of the defense available under Subsection (e-1) and gives the actor an opportunity to exit the screening checkpoint for the secured area; and

(2) the actor does not immediately exit the checkpoint upon completion of the required screening processes.

(f) Except as provided by Subsection (e-1), it is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.

(g) Except as provided by Subsection (g-1), an offense under this section is a felony of the third degree.

(g-1) If the weapon that is the subject of the offense is a location-restricted knife, an offense under this section is a Class C misdemeanor, except that the offense is a felony of the third degree if the offense is committed under Subsection (a)(1).

(h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor's place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:

(1) the actor is wearing a distinctive uniform; and

(2) the firearm or club is in plain view.

(i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:

(1) while in a vehicle being driven on a public road; or

(2) at the actor's residence or place of employment.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2962, ch. 508, Sec. 1, eff. Aug. 29, 1983; Acts 1989, 71st Leg., ch. 749, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 203, Sec. 2.79; Acts 1991, 72nd Leg., ch. 386, Sec. 71, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 433, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 554, Sec. 50, eff. Sept. 1, 1991. Renumbered from Penal Code Sec. 46.04 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 229, Sec. 3, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 260, Sec. 42, eff. May 30, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 17, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 790, Sec. 17, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 10.03, 31.01(70), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1043, Sec. 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1221, Sec. 2, 3, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 25, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1060, Sec. 1, 2 eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1178, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 4B.21, eff. September 1, 2009.

Acts 2015, 84th Leg., R.S., Ch. 437 (H.B. 910), Sec. 46, eff. January 1, 2016.

Acts 2015, 84th Leg., R.S., Ch. 438 (S.B. 11), Sec. 3, eff. August 1, 2016.

Acts 2015, 84th Leg., R.S., Ch. 1001 (H.B. 554), Sec. 1, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 15.003, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 1049 (H.B. 1935), Sec. 5, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 1049 (H.B. 1935), Sec. 6, eff. September 1, 2017.



So you are correct that there is nothing in that particular statute about non-LTC bringing guns into prison. However, I did find this:


Sec. 38.11. PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL OR CIVIL COMMITMENT FACILITY. (a) A person commits an offense if the person provides, or possesses with the intent to provide:

(1) an alcoholic beverage, controlled substance, or dangerous drug to a person in the custody of a correctional facility or civil commitment facility, except on the prescription of a practitioner;

(2) a deadly weapon to a person in the custody of a correctional facility or civil commitment facility;

(3) a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility;

(4) money to a person confined in a correctional facility; or

(5) a cigarette or tobacco product to a person confined in a correctional facility, except that if the facility is a local jail regulated by the Commission on Jail Standards, the person commits an offense only if providing the cigarette or tobacco product violates a rule or regulation adopted by the sheriff or jail administrator that:

(A) prohibits the possession of a cigarette or tobacco product by a person confined in the jail; or

(B) places restrictions on:

(i) the possession of a cigarette or tobacco product by a person confined in the jail; or

(ii) the manner in which a cigarette or tobacco product may be provided to a person confined in the jail.

(b) A person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a correctional facility or civil commitment facility.

(c) A person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by a correctional facility or civil commitment facility.

(d) A person commits an offense if the person:

(1) possesses a controlled substance or dangerous drug while in a correctional facility or civil commitment facility or on property owned, used, or controlled by a correctional facility or civil commitment facility; or

(2) possesses a deadly weapon while in a correctional facility or civil commitment facility.

(e) It is an affirmative defense to prosecution under Subsection (b), (c), or (d)(1) that the person possessed the alcoholic beverage, controlled substance, or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the beverage, substance, or drug to a warehouse, pharmacy, or practitioner on property owned, used, or controlled by the correctional facility or civil commitment facility. It is an affirmative defense to prosecution under Subsection (d)(2) that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility or civil commitment facility who is authorized to possess the deadly weapon while on duty or traveling to or from the person's place of assignment.

(f) In this section:

(1) "Practitioner" has the meaning assigned by Section 481.002, Health and Safety Code.

(2) "Prescription" has the meaning assigned by Section 481.002, Health and Safety Code.

(3) "Cigarette" has the meaning assigned by Section 154.001, Tax Code.

(4) "Tobacco product" has the meaning assigned by Section 155.001, Tax Code.

(5) "Component" means any item necessary for the current, ongoing, or future operation of a cellular telephone or other wireless communications device, including a subscriber identity module card or functionally equivalent portable memory chip, a battery or battery charger, and any number of minutes that have been purchased or for which a contract has been entered into and during which a cellular telephone or other wireless communications device is capable of transmitting or receiving communications.

(6) "Correctional facility" means:

(A) any place described by Section 1.07(a)(14)(A), (B), or (C); or

(B) a secure correctional facility or secure detention facility, as defined by Section 51.02, Family Code.

(g) An offense under this section is a felony of the third degree.


(h) Notwithstanding Section 15.01(d), if a person commits the offense of criminal attempt to commit an offense under Subsection (a), (b), or (c), the offense committed under Section 15.01 is a felony of the third degree.

(i) It is an affirmative defense to prosecution under Subsection (b) that the actor:

(1) is a duly authorized member of the clergy with rights and privileges granted by an ordaining authority that includes administration of a religious ritual or ceremony requiring the presence or consumption of an alcoholic beverage; and

(2) takes four ounces or less of an alcoholic beverage into a correctional facility and personally consumes all of the alcoholic beverage or departs from the facility with any portion of the beverage not consumed.

(j) A person commits an offense if the person, while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices.

Text of subsection effective until January 01, 2019

(k) A person commits an offense if, with the intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility, the person:

(1) acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody;

(2) provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody; or

(3) makes a payment to a communication common carrier, as defined by Article 18.20, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.

Text of subsection effective on January 01, 2019

(k) A person commits an offense if, with the intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility, the person:

(1) acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody;

(2) provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody; or

(3) makes a payment to a communication common carrier, as defined by Article 18A.001, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.

Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 5.01, eff. Oct. 1, 1991. Renumbered from Penal Code Sec. 38.112 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 362, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 649, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 470, Sec. 1 to 3, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 499 (H.B. 549), Sec. 1, eff. June 17, 2005.

Acts 2005, 79th Leg., Ch. 949 (H.B. 1575), Sec. 48, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 1092 (H.B. 2077), Sec. 1, eff. September 1, 2005.

Reenacted and amended by Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 1, eff. September 1, 2009.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 34 (S.B. 1576), Sec. 30, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 34 (S.B. 1576), Sec. 31, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 1058 (H.B. 2931), Sec. 3.19, eff. January 1, 2019.





In summary, I was wrong about what I posted earlier, but it is still a third degree felony regardless of who brings a gun into a prison. :tiphat:
Never bring a knife to a gun fight.
Carry gun: Springfield XD Tactical .45


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