Figured I needed to clarify myself a bit, because Mike S is not incorrect; his statement is just from the top-down rather than the bottom-up, and both our responses might be misconstrued.Mike S wrote:It's not a Felony; it's a Class A Misdemeanor (unless you're charged under TPC 46.035 (b)(1) or (b)(3) (carrying concealed or openly on premises posted 51%, or inside a correctional facility). Its also a Class A Misdemeanor to remain after verbal notice under 30.06/30.07.
As always, I am not an attorney and didn't stay at Holiday Inn last night. But like many of you, I've been closely watching and participating in this legal journey for a decade...well over three decades in Charles's case.
TPC Sections 30.06 and 30.07 defines general trespass by license holder with a handgun. It defines "entry," license holder," "written communication," and gives us the explanation of receipt of notice. Both §30.06 and §30.07 have in common the language of their respective items (d) and (e):
- (d) An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) and subsequently failed to depart.
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
More likely is that there is no LEO in Joe's Bait Shop. If you're carrying concealed, neither Joe nor any of his patrons may ever notice.
But you will have committed a crime by entering. Personally, just because the penalty was lowered in the last legislative session, I still consider any infraction involving a firearm to be on a different plateau altogether than failing to buckle your seatbelt or driving 10 mph over the limit.
Say Joe keeps his valid 30.06 signage in place, but doesn't post 30.07. Can you legally cross the threshold while carrying openly without committing a crime? In my opinion, yes. Is it a good idea? In my opinion, 99% of the time, no. If Joe is cordial, he will inform you orally that you can't carry in his store. You have to immediately backtrack out of said threshold. Legally, you are then free to lock your handgun in our vehicle and go back in to buy earthworms from Joe.
However, if you in any way give Joe the impression that you are refusing to leave, you're setting yourself up for a potentially bad day. Even if there is no LEO present, Joe is likely to have an employee or two standing around witnessing the exchange. You've just upped your ante to a Class A.
Multiple real-world variants, of course and, frankly, given the history of 30.06 prosecution, I doubt we'll ever see any but the extreme play out to a DA.
If no LEO is present and you give Joe a piece of your mind about 2A and keep yapping about how you won't leave, will you be arrested? Only if an employee's call to the police or sheriff doesn't have them arrive before you finally storm out of the store. Will you have committed a crime? Yes. Will you have done gun rights in Texas a disservice? Yes.
But what if you were a regular before the sign went up, and Joe knows your name and address and has video footage, and decides he thinks you're a danger and reports the incident to law enforcement after-the-fact? Nowadays, cameras are everywhere, baby. Would a DA pursue for Class A? Coin toss. On a slow day, who knows?
More likely scenario--as has been reported on this Forum before--is that no one in the store says a word, but someone places a 911 man-with-a-gun call. You've been happily chatting with Joe and putting spinners and line and an interesting pre-wrapped fly in your shopping basket when blue-and-red lights signal a cruiser is pulling up. Either Joe was too nervous to tell you to leave, or one of his employees took it upon himself to make the MWAG call. Now you're in the position of explaining that, yes, you saw the 30.06 sign, but there was no 30.07, so you walked in with your .50 Dessert Eagle in a black leather holster--the one imprinted with a Marvel(R) Punisher skull--undisguised on your hip.
"Honest, officer. No one told me it wasn't okay to open carry in here, and the 30.06 sign only applies to concealed carry."
Your mileage may vary.
Bottom line, though, a simple infraction of 30.06 or 30.07 is a Class C misdemeanor with a fine not to exceed $200. As LTC/CHL holders, I hope we all appreciate the legislative change but continue to hold any firearm law at the highest possible level.
Now comes that exception in items (d) of §30.06 and 30.07: "It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035."
Too much too quote, and I'm sure many of you know it by heart: http://www.statutes.legis.state.tx.us/D ... /PE.46.htm
But as Mike S indicated, there's a change as of the 84th legislature, but his note wasn't complete. Mine isn't either; hit the link above and read carefully. Section 46.035 is titled "Unlawful Carrying of Handgun by License Holder" and is one of several we should commit to memory...and refresh at least after every legislative session.
I've just noted the exceptions, mainly text that changed as of the last legislative session.TPC Section 46.035 wrote:
- (g) An offense under Subsection (a), (a-1), (a-2), (a-3), (b), (c), (d), or (e) 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.
(h) It is a defense to prosecution under Subsection (a), (a-1), (a-2), or (a-3) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.
(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.
(l) Subsection (b)(2) does not apply on the premises where a collegiate sporting event is taking place if the actor was not given effective notice under Section 30.06.
BTW, we typically recognize only broad changes to the law. Many of us rely only on the summary of relevant laws that DPS provides.
In my opinion, that's a mistake.
Doesn't take much time; certainly isn't your full-time job. But any LTC/CHL holder should know the law as it pertains to their responsibility. If not committed to memory, know how to look it up.
We need to carefully read all applicable laws annually, and never assume we know what the statutes say.
Many thanks to all the Texas politicians who demonstrably support the Second Amendment and our own Texas State Constitution. And special thanks to Alice Tripp of the Texas State Rifle Association, the TSRA and the NRA, and Charles Cotton. And to Governors Bush, Perry, and Abbott for holding Texas strong.