Which Applies: CHL or MPA?

[G26ster]

G26ster,

A non-CHLer transport (open carry is also legal while going to range) his firearm and open carry at the range and shoot, is exempted under 46.15, no crime, still in the clear.
A CHLer will do same and he is now breaking the law? will he go to jail?

If he walks in un-concealed, of course not. If he walks in concealed, and then un-conceals in public - now you have my question.

It is evident that a license like a CHL does give it holder more privileges to carry under the CHL law. However, do you think he will lose the right given to non-chler? I do not think so. Common sense and equal protection will prevail.

Obviously, the non CHL is covered by the non-applicability part of 46.15 because it references 46.02. You want me to rely on common sense, rather than 46.15 also saying that is apples to 46.035(a). I'd rather see that statement in 46.15 also. Common sense says that a shirt blowing up in the wind, or someone spotting a small portion of your gun would cause an LEO not to take you for a ride. Unfortunately it doesn't. Common sense says that a MWAG call might have the police "think" that it might be a CHL, and take that into account before going ballistic. It doesn't.

Let me ask you. How do you disarm and leave your firearm in your car before you enter a 30.06 posted establishment? How about when you arm yourself again? Are you breaking the law by un-concealing in public place, in the parking lot?

I do it in the car. I don't disarm and rearm in plain view of anyone. I am very careful. Many of the statutes are unclear and could use better and more complete language.

[srothstein]

G26ster,

You have raised an interesting point that confuses many people. You have confused it further by mentioning the MPA, which is not applicable in the store.

The answer to your question about 46.035 is that it does not apply at the range. Note that 46.035 only applies when you are carrying under the authority of your CHL. When you go to the range, you are excepted from the law of unlawfully carrying by authority of 46.15 (engaged in a sporting activity). Thus, you can legally unconceal since there is no requirement for sportsmen to keep their weapons concealed.

Now, when you go shopping for a new holster or gun and are in the store, there is an interesting problem. There is no exception to 46.02 allowing you to carry there. But, if you can only carry there with a CHL, how do all the non-CHL's go shopping for a gun and pick it up legally? Obviously they can, and case law has held it so. I have always claimed that the sporting events exception applies since buying the gun is a critical part of engaging in the sport. While not for my reason, I think the courts would continue to hold that this is also legal since so many people do it all the time. It is a case of applying the law with common sense. Again, since the courts have ruled this legal before CHL's, I would argue that you are not carrying under the authority of the CHL at that time and could legally unconceal.

Of course, this one is more confusing and may take a new court decision if you were charged with 46.035. At the moment you entered the store, you were carrying under the authority of your CHL, so when did that authority stop? My advice would be to never plan on showing your concealed weapon in the store, but instead to have a backup concealed weapon and the one you are looking for a holster or accessory for would be open carry. This owuld make it clear you were relying on the old case law from 46.02 instead of testing 46.035.

[G26ster]

G26ster,

You have raised an interesting point that confuses many people. You have confused it further by mentioning the MPA, which is not applicable in the store.

The answer to your question about 46.035 is that it does not apply at the range. Note that 46.035 only applies when you are carrying under the authority of your CHL. When you go to the range, you are excepted from the law of unlawfully carrying by authority of 46.15 (engaged in a sporting activity). Thus, you can legally unconceal since there is no requirement for sportsmen to keep their weapons concealed.

Now, when you go shopping for a new holster or gun and are in the store, there is an interesting problem. There is no exception to 46.02 allowing you to carry there. But, if you can only carry there with a CHL, how do all the non-CHL's go shopping for a gun and pick it up legally? Obviously they can, and case law has held it so. I have always claimed that the sporting events exception applies since buying the gun is a critical part of engaging in the sport. While not for my reason, I think the courts would continue to hold that this is also legal since so many people do it all the time. It is a case of applying the law with common sense. Again, since the courts have ruled this legal before CHL's, I would argue that you are not carrying under the authority of the CHL at that time and could legally unconceal.

Of course, this one is more confusing and may take a new court decision if you were charged with 46.035. At the moment you entered the store, you were carrying under the authority of your CHL, so when did that authority stop? My advice would be to never plan on showing your concealed weapon in the store, but instead to have a backup concealed weapon and the one you are looking for a holster or accessory for would be open carry. This owuld make it clear you were relying on the old case law from 46.02 instead of testing 46.035.

Thank you! I was hoping you'd chime in at some point. Your insights are very helpful.

[PATHFINDER]

Prior to the provision for the Texas CHL like thousands of other residents or visitors in Texas I TRAVELED(and carried a handgun) EXTENSIVELY.I recall participating in "cracker-barrel" discussions over the legally accepted definition of "traveling". Conventional "wisdom" provided legal opinions ranging from the broad "as long as you're "TRAVELING" - 'cause that's what the law says"(technically correct) ........to the narrow ......" you have to be able to show that you are crossing "X number" of county lines", or ..."always carry your handgun inside a packed overnight case in the back seat"....."as long the handgun is out of your reach".... etc, etc. Thinking back on those days...... the REAL measure of whether or not a person's traveling defense was recognized was whether or not the contacting LEO was "comfortable" with that person being in possession of a handgun. If the person was a "respectable" ( "good ol' boy /or girl) in Mason, Junction , or even San Angelo travel status was not an issue. I seem to recall reports that the closer a person got to Houston the higher the "travel bar" got.

Ohhh - what a relief it was - when I inserted that first CHL inside my wallet. WOW - I had been bestowed with the honor and privilege under Texas law of being one of only a relatively few Texans who were now licensed to exercise a "RIGHT", and could carry a handgun without running the risk of being arrested for UCW - unless I violated one of the CHL restriction provisions.

I would be interested in reviewing some actual , or even anecdotal , cases involving prosecution under 46.02 , and 46.035 where the persons charged with UCW, or "intentional" licensed failure to conceal were not engaged some level of criminal conduct - even 42.01 disorderly conduct.

I appreciate Governor Perry extending unilateral reciprocity to the likes of California, New York, New Jersey, and such- in the hope that those constitutionally challenged states may someday decide to comply with the U.S. law and honor the legislated acts of Texas and other states under the full faith and credit provision .

I am now a Colorado resident who travels back and forth between Colorado Springs and Texas regularly, spending a good deal of time visiting family in West Texas. I am NOT "licensed under the authority of " Subchapter 411, chapter 11 of the Government code . I am NOT licensed by the State of Texas for CONCEALED CARRY ONLY of a SEMI-AUTO handgun . I am PERMITTED by a legislative act of the State of Colorado , subject to some degree of discretion by the Sheriff of El Paso County, Colorado - to carry ANY handgun I choose CONCEALED IN COLORADO.

Texas gratiously has opted to HONOR my CO CHP which is NOT A PERMIT TO CARRY A HANDGUN - as is the TX CHL- but is a permit to carry a handgun CONCEALED in Colorado. The CO CHP does not restrict me to CONCEALED CARRY ONLY, but Texas RECIPROCITY policy does require that I COMPLY with ALL relevant Texas laws when in Texas in order my CO permit to remain VALID. I can present a technical argument that I am not constructively subject to the provisions of 46.035, BUT the INTENT of Texas reciprocity is that the VALIDITY of my CO CHP while I am in Texas DEPENDS UPON my compliance with Texas law regarding the carry/wearing of a handgun. If I do not comply with 46.035 then my CO CHP is no longer VALID in Texas - subjecting me to 46.02 without the benefit of concealed handgun exception.

Just running this issue through my own mind - maybe other non-residents have already worked this through their gears.
Any disagreement with my legal logic on this issue ?

[megs]

I don't understand your argument. I have a Texas driver license. I can drive in New Mexico on my Texas license. If I speed in New Mexico they can charge me with speeding but my Texas license is still VALID in New Mexico.

[PATHFINDER]

My apologies for my appearing to want to stretch the nuances of Texas law, and reciprocity policy. The driver license analogy is going to break down pretty quick , I think, because it has the blessing of universal acceptance subject only to local laws.

Reading the original post - we have to consider the intent of 46.035 . I would offer the view that the purpose and intent of the 46.035 provision was to preclude a Texas CHL licensee from "intentionally" displaying a handgun in such a manner that might reasonably cause alarm, intimidate, or be perceived by others as threatening. Texas law addresses the Texas concealed handgun license and licensees, and provision is made for reciprocity policy.

My Colorado CHP only serves to permit me to carry a CONCEALED handgun in Colorado where the State law otherwise does not restrict the carry of a displayed handgun. Texas' recognition of my CO /CHP pertains soley to the grant of privilege by the State of Colorado for me to carry a concealed handgun - because that is the sole purpose of a CO permit. My CO/CHP is not a license to carry a handgun issued by the State of Texas. Texas law , unlike Colorado law, does not prohibit concealed carry. On the contrary, Texas law tends toward mandating concealed carry.

Although I do not believe 46.035 constructively applies specifically to my CO permit reciprocity status, I appreciate and respect the fact that Texas has been gratious enough to recognize my CO /CHP as acceptable authority to carry a HANDGUN while in Texas - AND to carry it CONCEALED while I am in Texas. "When in Rhome......." as they say.

I believe section 46.035 was intended to address serious concerns regarding the potential for disorderly conduct involving the licensed wearing of a handguns, or even rude disregard for the sensibilities of others, and not intended to constitute an unnavigatable legal obstacle course through which every conceivable recreational, or commercial activity involving the transport of a handgun had to be filtered.

[Keith B]

My apologies for my appearing to want to stretch the of Texas law, and reciprocity policy. The driver license analogy is going to break down pretty quick , I think, because it has the blessing of universal acceptance subject only to local laws.

Reading the original post - we have to consider the intent of 46.035 . I would offer the view that the purpose and intent of the 46.035 provision was to preclude a Texas CHL licensee from "intentionally" displaying a handgun in such a manner that might reasonably cause alarm, intimidate, or be perceived by others as threatening. Texas law addresses the Texas concealed handgun license and licensees, and provision is made for reciprocity policy.

My Colorado CHP only serves to permit me to carry a CONCEALED handgun in Colorado where the State law otherwise does not restrict the carry of a displayed handgun. Texas' recognition of my CO /CHP pertains solely to the grant of privilege by the State of Colorado for me to carry a concealed handgun - because that is the sole purpose of a CO permit. My CO/CHP is not a license to carry a handgun issued by the State of Texas. Texas law , unlike Colorado law, does not prohibit concealed carry. On the contrary, Texas law tends toward mandating concealed carry.

Although I do not believe 46.035 constructively applies specifically to my CO permit reciprocity status, I appreciate and respect the fact that Texas has been gratious enough to recognize my CO /CHP as acceptable authority to carry a HANDGUN while in Texas - AND to carry it CONCEALED while I am in Texas. "When in Rhome......." as they say.

I believe section 46.035 was intended to address serious concerns regarding the potential for disorderly conduct involving the licensed wearing of a handguns, or even rude disregard for the sensibilities of others, and not intended to constitute an unnavigatable legal obstacle course through which every conceivable recreational, or commercial activity involving the transport of a handgun had to be filtered.

First off, welcome to the forum.

I am still not clear on your message, but will try to answer what I think you are implying.

Subchapter H, Chapter 411 of the Government Code does NOT apply only to the Texas CHL, but any recognized concealed handgun license that has reciprocity with Texas. So, in other words, your license from Colorado becomes a de facto Texas license in regards to being required to conform to the Texas laws regarding carrying of a handgun period. The only thing that you DON'T get by carrying in a reciprocal state is the Gun Free School Zone exemption (a federal law) that you get by having a license from the state you are in.

So, bottom line, no matter what state your license is from, or privileges or rules you have for the state it is issued in, once in Texas or any other reciprocal state that honors your license, you MUST follow that states rules just as if you have a license from that state. This applies unless there are specific guidelines listed out by that state that are different for reciprocal license holders, which Texas does not.

[PATHFINDER]

Thanks for your explanation ,Keith. I would concur that YOUR bottom line IS THE bottom line - based upon the qualifying condition within the reciprocity agreement or proclamation. I wasn't trying to make the issue appear more complicated than it actually is - merely attempting to explore the strange nuances in each state's approach to concealed carry.

For example, it's technically true that Texas does not criminalize CONCEALED CARRY in and of its self - but Texas has gone even a step beyond that to generally criminalize carry AT ALL of a CONCEALABLE handgun. So it's really only half of the story that Texas does not provide a criminal penalty for concealed carry as such- like Colorado (a class 2 misemeanor). I find it helpful whenever possible to try to clear dark corners of cob webs. The effort it takes will make the brain bleed a little though.