Change "Concealed Handgun" to "Concealed Weap

What should be on the 2007 agenda for CHL's?

Moderator: Charles L. Cotton

Postby Charles L. Cotton » Mon Aug 15, 2005 10:35 am

Anyone carrying an illegal knife or club and attempting to rely upon their CHL is treading in dangerous territory. The protection provided by Penal Code Section 46.15(b)(6) is not as clear as it appears at first blush.

46.02 makes it illegal to carry a handgun, illegal knife, or a club.
46.15(b)(6) states that the 46.02 prohibition doesn't apply to a CHL carrying a concealed handgun.

Here is the problem with the argument that none of 46.02 applies to a CHL. Penal Code § 1.05. CONSTRUCTION OF CODE reads as follows:

(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

So the Texas Penal Code is not strictly construed, rather it is construed in a manner to "effect the objectives of the code." The clear intent of the Legislature in enacting SB60 was to allow the carrying of concealed handguns, not illegal knives or clubs. Section 1.05(a) would support an arrest, prosecution and conviction of a CHL carrying a club or illegal knife.

Also, the Legislative history of SB60 and subsequent amendments to the CHL statute make it clear that there was never any consideration given to allowing CHL’s to carry clubs or illegal knives. When a statute is ambiguous, the Legislative history of the bill becomes relevant to its interpretation and application.

I don't want anyone to think that I like or agree with Section 1.05(a), so here is a reprint of my comments on that portion of the Penal Code:

(Editorial Comment: This language is scary! Centuries of English and American jurisprudence have acknowledged that penal codes place life and liberty at risk, thus they must be strictly construed so as to let citizens know precisely what conduct is prohibited. §1.05 throws hundreds of years of case law out the window.)


Regards,
Chas.
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Postby stevie_d_64 » Mon Aug 15, 2005 10:54 am

This reminds me of that discussion and poll of "what else we carry" just recently...

Almost makes me think about only carrying the weapon, one extra magazine, and my cell phone...Thats it...No knife, "spray" or any other defensive item or substance...
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Re: Change "Concealed Handgun" to "Concealed

Postby txinvestigator » Mon Aug 15, 2005 11:02 am

Renegade wrote:
txinvestigator wrote:

His supervisor is the Dallas County Sheriff, and it is policy. IMO, the law is clear, and only handguns are allowed under the CHL laws.


My brother-in-law is a Dallas County Deputy and he is not aware of any such policy. He is aware of the law though, and as you say the law is clear (actually crystal clear), unfortunate so many LEOs can't read it:

§ 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.

§ 46.15. NONAPPLICABILITY. (b) Section 46.02 does not apply to a person who:
6) is carrying a concealed handgun and a valid license issued under Article 4413(29ee), Revised Statutes, to carry a concealed handgun of the same category as the handgun the person is carrying;


46.02 does not apply. I do not commits an offense if I intentionally, knowingly, or recklessly carries on or about my person a handgun (required by 46.15), illegal knife, or club.


Maybe your BIL should review policy. :lol: J/K.

See Charles' post above, and also look at this;

The other exceptions in 46.15 NEVER mention handgun in the exception. Only the CHL exception does. Why would the legislature require you to have your handgun with you to be able to carry an illegal knife or club, if in fact your CHL allowed you to carry an illegal knife or club?

46.15 (b) (6) is the ONLY one specifying a handgun.

You license to called a Concealed Handgun License, not concealed weapons license.
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Postby txinvestigator » Mon Aug 15, 2005 11:03 am

stevie_d_64 wrote:This reminds me of that discussion and poll of "what else we carry" just recently...

Almost makes me think about only carrying the weapon, one extra magazine, and my cell phone...Thats it...No knife, "spray" or any other defensive item or substance...


Are you meaning you are thinking you should carry other defensive items, or should not?
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Re: Change "Concealed Handgun" to "Concealed

Postby Renegade » Mon Aug 15, 2005 11:19 am

txinvestigator wrote:
Maybe your BIL should review policy. :lol: J/K.

See Charles' post above, and also look at this;


He has. Hasn't seen such a policy. Either way, he doesn't care to hassle good guys, regardless of policy. In his words, "only an inexperienced idiot would arrest a CHL for carrying a knife when they are legally carrying a gun. I have real criminals to catch."

Charles post on no strict interpretation is good. I can see how a ruletarian could interpet that in the most pessimistic way.
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Re: Change "Concealed Handgun" to "Concealed

Postby Renegade » Mon Aug 15, 2005 11:23 am

txinvestigator wrote:You license to called a Concealed Handgun License, not concealed weapons license.


So by that logic is it illegal to carry more than one handgun? After all it is not a Concealed Handgun(s) License?
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Re: Change "Concealed Handgun" to "Concealed

Postby txinvestigator » Mon Aug 15, 2005 1:21 pm

Renegade wrote:
txinvestigator wrote:You license to called a Concealed Handgun License, not concealed weapons license.


So by that logic is it illegal to carry more than one handgun? After all it is not a Concealed Handgun(s) License?


Now you are just being silly.

And I oppose the notion your BIL claims regarding enforcing the law, as I bet most cops do.

Name calling in such a reaction causes me to question several things.

You can go on and on all you want, and please feel free to carry whatever you want, as I don't care. I won't arrest you. But if you do decide to challange the Deputy this weekend PLEASE get me first.

I'll buy you a cup of coffeee beforehand. ;)
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Re: Change "Concealed Handgun" to "Concealed

Postby Renegade » Mon Aug 15, 2005 2:13 pm

txinvestigator wrote:
Renegade wrote:
txinvestigator wrote:You license to called a Concealed Handgun License, not concealed weapons license.


So by that logic is it illegal to carry more than one handgun? After all it is not a Concealed Handgun(s) License?


Now you are just being silly.

And I oppose the notion your BIL claims regarding enforcing the law, as I bet most cops do.

Name calling in such a reaction causes me to question several things.

You can go on and on all you want, and please feel free to carry whatever you want, as I don't care. I won't arrest you. But if you do decide to challange the Deputy this weekend PLEASE get me first.

I'll buy you a cup of coffeee beforehand. ;)


No offense intended. When one becomes an LEO, they decide for themselves how they are going to enforce the law, I made mine, you made yours, he makes his.

Until someone is actually arrested and challenges it, all we have are opinions. I doubt it will happen since carrying an illegal knife or club is difficult to do, and of little value if you already have a gun.

Sorry, I will be taking my class up here near the Red River, so you can tell the troops to stand down. A handgun and knife or club is not sufficient armament for a trek down to the most dangerous city in the US. :-)
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Postby Baytown » Thu Aug 18, 2005 9:21 am

I think someone should read 46.05. (I know it does not apply to ASPs, and "illegal" knives.) There is not a non-applicability clause to this one. The defense to prosecutions are listed below it.

Note that LEO's exemption does not even apply to 46.05. We can carry under the defense to prosecution, but that can be a hassle.

Now, I have seen a lot of chest thumping on this thread about law suits, official oppression, etc... I can assure you in Harris Co, if an LEO wanted to jam you up for 46.05 when you have a switchblade knife, etc, you will go to jail.

The officer will not be in trouble, you can attempt to sue, but the arrest was in good faith, and he will be covered. He will not be charged with a crime.

I can speak for myself and say, I would probably not care, unless a guy wants to be a jackass and try and prove a point. I am an easy going guy, but I have my limits. If I try and explain to him he should probably leave his switchblade knife at home, and he keeps wanting to go on about a right that does not exist, he might go to jail.

While we are on the topic, has there been any thought to getting training for the OC, ASP, Taser, etc... There is more to carrying a baton than just whacking the crap out of someone.

(All right, let the flaming begin I guess.)

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Postby txinvestigator » Thu Aug 18, 2005 10:23 am

Baytown wrote:I think someone should read 46.05. (I know it does not apply to ASPs, and "illegal" knives.) There is not a non-applicability clause to this one. The defense to prosecutions are listed below it.

Note that LEO's exemption does not even apply to 46.05. We can carry under the defense to prosecution, but that can be a hassle.

Now, I have seen a lot of chest thumping on this thread about law suits, official oppression, etc... I can assure you in Harris Co, if an LEO wanted to jam you up for 46.05 when you have a switchblade knife, etc, you will go to jail.

The officer will not be in trouble, you can attempt to sue, but the arrest was in good faith, and he will be covered. He will not be charged with a crime.

I can speak for myself and say, I would probably not care, unless a guy wants to be a jackass and try and prove a point. I am an easy going guy, but I have my limits. If I try and explain to him he should probably leave his switchblade knife at home, and he keeps wanting to go on about a right that does not exist, he might go to jail.

While we are on the topic, has there been any thought to getting training for the OC, ASP, Taser, etc... There is more to carrying a baton than just whacking the crap out of someone.

(All right, let the flaming begin I guess.)

Glenn


All good points. I tell all of my students that if they choose to carry OC, (and I stress that they should) that OC certification is really a good idea.
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Postby ShootNMove » Sun Jan 22, 2006 9:41 pm

Despite learning the red, yellow, and green areas, there ISN'T that much left to learn with the ASP.

Besides that, why would you want to carry an ASP if you already have your CHL? Usually (especially overseas), the military will not issue OC or ASPs, even if the personnel are qualified to use them. Why? It makes the escalation of force a lot easier on the armed watchstanders. I wouldn't want to go to court to explain why I shot someone when I had a club that may have neutralized the threat w/o killing him.

IMHO, knives have other uses besides defending yourself against BGs.
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Postby txinvestigator » Sun Jan 22, 2006 11:10 pm

ShootNMove wrote:Despite learning the red, yellow, and green areas, there ISN'T that much left to learn with the ASP.

Besides that, why would you want to carry an ASP if you already have your CHL? Usually (especially overseas), the military will not issue OC or ASPs, even if the personnel are qualified to use them. Why? It makes the escalation of force a lot easier on the armed watchstanders. I wouldn't want to go to court to explain why I shot someone when I had a club that may have neutralized the threat w/o killing him.

IMHO, knives have other uses besides defending yourself against BGs.


If you are legally justified in using deadly there is no responsibilty to use less-lethal tools.

Strikng a person with a club, unless you have specific training, is going to be deadly force also.
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Postby ShootNMove » Mon Mar 20, 2006 8:31 pm

For us (military), use of the ASP falls under the "Hard Controls" section of force escalation, the same as use of a Military Working Dog. It can, however, be "Deadly Force" if you strike the head.

I agree 100% with your point. I'm just thinking about my personal liability. Since Texas has nothing like the Castle Doctrine, I just prefer to CMA. Besides, ASPs are illegal to carry, so it's not an issue!
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Postby DKSuddeth » Tue Mar 21, 2006 7:17 am

would this mean I could carry a SPAS under my duster? :lol:
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