30.06 parking garage at public non-profit corporation

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srothstein
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Re: 30.06 parking garage at public non-profit corporation

#16

Post by srothstein » Wed Apr 14, 2010 11:57 pm

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).
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Re: 30.06 parking garage at public non-profit corporation

#17

Post by chabouk » Thu Apr 15, 2010 1:39 am

There's no case law to back all this up, mostly because the law-abiding bend over backwards to obey the law, rather than testing the limits. The few (very few) CHLs who screw up generally screw up royally, to the point there's no question they were breaking the law. (A few poor souls like Handog get caught in the middle, obeying the law while being treated like criminals.)

I had a little trouble following the argument of "under the authority of a CHL", until I realized it's exactly like carrying on property you own or control. No one here argues that you have to have a CHL at all, much less carry the plastic and keep your gun concealed, while carrying on your own property. We all know that 46.02 doesn't apply, so you're not carrying "under the authority of" anything other than the law.

Very intriguing line of thought. Thanks!


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Re: 30.06 parking garage at public non-profit corporation

#18

Post by DoubleActionCHL » Thu Apr 15, 2010 12:47 pm

chabouk wrote:There's no case law to back all this up, mostly because the law-abiding bend over backwards to obey the law, rather than testing the limits. The few (very few) CHLs who screw up generally screw up royally, to the point there's no question they were breaking the law. (A few poor souls like Handog get caught in the middle, obeying the law while being treated like criminals.)

I had a little trouble following the argument of "under the authority of a CHL", until I realized it's exactly like carrying on property you own or control. No one here argues that you have to have a CHL at all, much less carry the plastic and keep your gun concealed, while carrying on your own property. We all know that 46.02 doesn't apply, so you're not carrying "under the authority of" anything other than the law.

Very intriguing line of thought. Thanks!
This is an excellent point and I've considered it, but O'Shay with DPS clearly tells us (even though she's frequently incorrect) that the CHL supersedes carry under the MPA, and to NEVER cross a 30.06. Period.

From a logical and legal (legal? What do I know???) standpoint, I agree with you completely. From a practical standpoint, I don't know if I can afford to take the chance that the arresting officer and the judge see things the way we do. I'd love to see a legal precedent that supports this interpretation.
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Keith B
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Re: 30.06 parking garage at public non-profit corporation

#19

Post by Keith B » Thu Apr 15, 2010 1:04 pm

Thanks Steve, that clears up your thought process on it for me, and I see the logic in your view. I may have to digest it a little more, but I think I am leaning toward your interpretation. At least that is the argument I will make if I am in this situation and need an out. ;-)
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Re: 30.06 parking garage at public non-profit corporation

#20

Post by A-R » Sat Nov 12, 2011 10:00 am

for what it's worth, I was driving by this parking garage the other day and it appears the 30.06 signs have been removed - perhaps a "compliance" with new laws stemming from SB 321?

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Re: 30.06 parking garage at public non-profit corporation

#21

Post by Crossfire » Sat Nov 12, 2011 10:18 am

DoubleActionCHL wrote:This is an excellent point and I've considered it, but O'Shay with DPS clearly tells us (even though she's frequently incorrect) that the CHL supersedes carry under the MPA, and to NEVER cross a 30.06. Period.
Well, if that is Ms. O'Shay's opinion, then that's reason enough right there for me to NOT believe it! :roll:
I go with Mr. Rothstein on this one.
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Re: 30.06 parking garage at public non-profit corporation

#22

Post by 3dfxMM » Sun Nov 13, 2011 2:08 am

A-R wrote:for what it's worth, I was driving by this parking garage the other day and it appears the 30.06 signs have been removed - perhaps a "compliance" with new laws stemming from SB 321?
SB 321 doesn't have anything in it that would prevent a company from posting their parking garages. They can't make a policy that prevents an employee from keeping a firearm in their car, but they sure can make it illegal for anyone with a CHL to leave their car with their firearm.

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Re: 30.06 parking garage at public non-profit corporation

#23

Post by C-dub » Sun Nov 13, 2011 6:12 pm

3dfxMM wrote:
A-R wrote:for what it's worth, I was driving by this parking garage the other day and it appears the 30.06 signs have been removed - perhaps a "compliance" with new laws stemming from SB 321?
SB 321 doesn't have anything in it that would prevent a company from posting their parking garages. They can't make a policy that prevents an employee from keeping a firearm in their car, but they sure can make it illegal for anyone with a CHL to leave their car with their firearm.
This has already been discussed and noted that, due to SB321, such a posting would not legally apply to the employees of the company posting the sign. It can, however, apply to everyone else.
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Re: 30.06 parking garage at public non-profit corporation

#24

Post by 3dfxMM » Mon Nov 14, 2011 11:36 am

Please point me at that discussion. I can't see how SB 321 prevents an employer from posting a 30.06. In fact, it specifically states that they can prevent employees from carrying other than in their automobile.

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Re: 30.06 parking garage at public non-profit corporation

#25

Post by C-dub » Mon Nov 14, 2011 5:59 pm

3dfxMM wrote:Please point me at that discussion. I can't see how SB 321 prevents an employer from posting a 30.06. In fact, it specifically states that they can prevent employees from carrying other than in their automobile.
If your point was to say that they can prevent someone from carrying in the building, then I and everyone else agrees with you. I was referring to an employers ability to prevent an employee from keeping their gun in the car in the parking lot.

There's this one and possibly one or two more.
viewtopic.php?f=110&t=45388&hilit=parking+lot+SB321" onclick="window.open(this.href);return false;
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Re: 30.06 parking garage at public non-profit corporation

#26

Post by 3dfxMM » Mon Nov 14, 2011 6:05 pm

It turns out we are in agreement mostly. I stated that a 30.06 posted on the garage would make it illegal for them to leave their car with their gun. I said mostly, because I was referring specifically to the parking garage, not the building. Regardless of where the signs are, CHLers (along eligible non-CHLers) are fine having a gun in their car.

My point was that the posting or not of a 30.06 would have nothing to do with an effort to be compliant with SB 321.

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Re: 30.06 parking garage at public non-profit corporation

#27

Post by C-dub » Mon Nov 14, 2011 6:05 pm

3dfxMM wrote:
A-R wrote:for what it's worth, I was driving by this parking garage the other day and it appears the 30.06 signs have been removed - perhaps a "compliance" with new laws stemming from SB 321?
SB 321 doesn't have anything in it that would prevent a company from posting their parking garages. They can't make a policy that prevents an employee from keeping a firearm in their car, but they sure can make it illegal for anyone with a CHL to leave their car with their firearm.
I am seeing my error in reading your post now, but I still disagree with your first sentence if it is applied to the employees. However, my mistake is in how my little brain read the text in red. I read that you were saying it was illegal for a CHL to leave it in their car. Sorry. :oops:
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Re: 30.06 parking garage at public non-profit corporation

#28

Post by 3dfxMM » Mon Nov 14, 2011 6:08 pm

C-dub wrote:
3dfxMM wrote:
A-R wrote:for what it's worth, I was driving by this parking garage the other day and it appears the 30.06 signs have been removed - perhaps a "compliance" with new laws stemming from SB 321?
SB 321 doesn't have anything in it that would prevent a company from posting their parking garages. They can't make a policy that prevents an employee from keeping a firearm in their car, but they sure can make it illegal for anyone with a CHL to leave their car with their firearm.
I am seeing my error in reading your post now, but I still disagree with your first sentence if it is applied to the employees. However, my mistake is in how my little brain read the text in red. I read that you were saying it was illegal for a CHL to leave it in their car. Sorry. :oops:
I stand by my first sentence. SB 321 only affects company policy and only refers to keeping firearms in cars. The company can still post the garage which would make it illegal for any CHLer to leave their car carrying the firearm.

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Re: 30.06 parking garage at public non-profit corporation

#29

Post by C-dub » Mon Nov 14, 2011 6:19 pm

3dfxMM wrote: I stand by my first sentence. SB 321 only affects company policy and only refers to keeping firearms in cars. The company can still post the garage which would make it illegal for any CHLer to leave their car carrying the firearm.
I agree with this as you have written it and I think you are also saying that such a posting would not apply to an employee leaving it in their vehicle, right? This posting would also make it illegal for a non-employee CHL to even enter the parking lot and leave their gun in the vehicle. It would have no effect on a non-CHL. They still need a gunbuster for that.
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Re: 30.06 parking garage at public non-profit corporation

#30

Post by 3dfxMM » Mon Nov 14, 2011 6:23 pm

Actually, I think it only prevents CHLers from legally leaving their car with their firearm, employee or not. I am in the camp that the MPA, rather than the CHL, covers you while in your car.

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