Keith B wrote:Steve,
So to be clear, you are stating that the MPA does override the CHL, and that we as license holders can state that the CHL does not apply to us in the car any longer? Do you have any type of case law or precedence that you base your statement on? I am curious as to why the license would not apply, even though you can also carry in your car. The reason I ask is we are still required to show our CHL when asked for ID, but the MPA doesn't require anything like that. If what your stating is fact, then we should not have to show our license when asked for ID if we are sitting in the car with the handgun, only when we are not carrying under the MPA.
I think you have the gist of what I was saying, but your writing it out a little backwards and that is part of what is confusing you. The trick is to read each law and take what it says to the logical conclusion. Start with the law you are most worried about, in this case 30.06 and go from there.
30.06 clearly states it only applies to people carrying under the authority of their CHL. It does not apply to everyone who happens to have a CHL, just when you are using its authority. Consider how a person may have multiple authorities to carry. There are a lot of cops who have CHL's (mostly to avoid the NICS check). Say one is on vacation and in the middle of driving from Houston to El Paso. He has authority to carry based on his CHL, his peace officer status, and his traveling status. How do you determine which one he is carrying on? The user gets to choose (there is nothing in the law so all or any may apply as needed). But in this case, you are driving in town and have a CHL. Are you using the CHL's authority?
To get that, we look at the law that let's you carry to see what the authority of a CHL is. In 46.15, it says that having a CHL and a pistol of the right class are an exception to 46.02. Okay, we don't have to obey 46.02. But then we take a look at what 46.02 says. This says that it is illegal to carry a pistol unless you are in your car with it concealed (and some other possible rules but we can keep it simple). If you are in your car and the weapon is concealed, your CHL cannot possibly grant an exception to the law since the law does not apply to you to begin with. The CHL status doesn't matter, and neither would the peace officer or traveling status apply.
So, if the CHL is not applicable to the situation, and 30.06 only applies to carrying under the authority of the CHL, 30.06 does not apply either.
But why then do you still have to show you CHL? Well, when you read that law, it says if you are carrying a pistol on or about your person AND if you have a CHL. It does not make a requirement that the carrying be under the authority of the CHL. Even a peace officer with a CHL or the traveler would be required to show the CHL at that time if they had one (though I would bet the cop never does show the CHL - his TCLEOSE license would mean more to him at that time I think).
And that is why I also disagree about the possibility of 30.05 applying. Again, it does not mention the authority of the CHL, just says carrying a CHL and a pistol. But I have to admit that I would have a lot less faith in this one holding up in a trial court (I think the appellate level would uphold it). The strong argument is that the legislature knew the difference between carrying under the authority of a CHL and just having both, since it is clearly shown in the very next section of the law.
Now for the bad news. I am not a lawyer or a judge and I have no case law backing up my opinions. The fact that CHL's are so law abiding means that there are so few cases of arrests for either of these situations. And without arrests and appeals, there are no legal precedents. There is no way I have of knowing if no one has been arrested in cases like this (the DPS statistics do not give enough info), or if hundreds have been arrested and the DA realized the cops were wrong, or the judge through the case out at the initial arraignment. There could even be convictions where the CHL did not have the money or the will to fight it further, or where he took a plea deal for probation or something.
This is just my logic, training, and how I read the Penal Code. Everyone in this group is just as literate as me and can read it and follow my logic. Feel free to disagree with all or any of it. As always, I recommend not being the test case, as a general principle. I might change that after I win the lottery and can afford the appeals as petty cash, but for now, my wallet says be more careful and avoid the gray area. People on the cutting edge of the law usually end up bleeding (though it can be a fun academic discussion).