Here's one for all the great thinkers and debaters out there...

[thetexan]

I was strolling through the park the other day when I stopped in my tracks, thunderstruck with an idea I had not pondered before; one which I am about to give to you. This is not meant to do anything but stir your analytical thinking; to exercise your legal musings and sharpen your reading and interpreting of the law. Here it is...

In the Texas concealed handgun license laws we have 3 things we can state as fact.

1. "Concealed handgun is defined...
GC §411.171. DEFINITIONS. In this subchapter:
(3) “Concealed handgun” means a handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.

2. Subchapter H of the Government Code deals with all aspects of the eligibility, issuing, and maintenance of the License to Carry a Concealed Handgun.

3. An offense is defined pertaining to the display of a gun licensed under Subchapter H...
PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder’s person under the authority of
Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place.

From these we can legally extract three other things...

1. We know what a concealed handgun is not. A handgun that is NOT concealed is one where its presence is openly discernible to the ordinary observation of a reasonable person...by definition as used in Subchapter H.

2. PC 46.035a does not legally add to the definition of a "concealed handgun" as given in GC 411.171 but rather establishes an offense that can be committed by one licensed under Subchapter H to carry a concealed handgun. In other words it established an offense a Subchapter H licensee may commit with a handgun.

3. The Concealed Handgun License is a license to carry a "concealed handgun" and not a license to carry an handgun that is not concealed.

So...here are the resulting questions that arise from the above...

1. By definition, does one carry a "concealed handgun" if it is printing yet not displayed and its presence is clearly known?
2. Does the Concealed Carry License authorize its holder to carry a "non-concealed handgun" even though it is not in plain view of another person in a public place?

A handgun can be in one of three conditions that are germane to this discussion...

1. A handgun that is concealed by definition
2. A handgun that is not concealed by definition AND not displayed in plain view (printing is an example)
3. A handgun that is displayed in plain view and, by definition, not concealed by GC 411.171

The thought that struck me is this...

Based on the above, how did so many people come to the conclusion that printing is no longer a concern? I had even come to this conclusion. It seems that the offense of intentional display has been used to support the idea that the printing issue is a thing of the past.

It would seem that if one intentionally displays a gun that is carried under the authority of the Subchapter H license one would commit an offense against PC 46.035a. It would also seem that if one allows their gun to print or otherwise become "non-concealed" by definition in a non-displayed manner, one is carrying a handgun for which he has no license.

Any thoughts?

tex

[treadlightly]

I sort of cling to the idea that if something is printing under my shirt it could be something other than a handgun - a cell phone or something.

Whether or not I should be paranoid I strive to maintain good concealment. My goal is for nobody to suspect there's a sidearm in the crowd.

[Taypo]

I sort of cling to the idea that if something is printing under my shirt it could be something other than a handgun - a cell phone or something.

Whether or not I should be paranoid I strive to maintain good concealment. My goal is for nobody to suspect there's a sidearm in the crowd.

While it may not be a crime to print, my personal philosophy is the same. Ideally I don't see a trace of what I'm carrying in the mirror before I leave the house.

[Abraham]

You're over thinking it.

Make sure you're well concealed and quit worrying.

BTW, if you have a bulge, don't worry about it either.

When I carry in my OWB holster (not my pack) there's a bit of a bulge and I don't worry about it.

Some, new to having a CHL and carrying wring their hands over the "bulge" as if they expect to be interrogated about it.

It won't happen.

But, but, you say, it might...!

Well then pilgrim, you can simply not reply to personal questions, or tell them to shove off or think up whatever pleases you as you don't owe the world an explanation about your mystery bulge, do you...

[VMI77]

I don't worry about a bulge. If there is enough printing for the outline of a gun to be discernible I correct it with either a different holster, a looser over garment, or a smaller gun. For the most part I don't want anyone to know I'm carrying, which is why I will rarely open carry when it becomes legal.

[Charles L. Cotton]

The definition of a "concealed handgun" is now meaningless. When SB299 passed in 2013, it changed the operative language of a violation of TPC §46.035(a) from "intentionally fails to conceal the handgun to "displays the handgun in plain view of another person in a public place." Since concealment is no longer the operative language, the definition is now superfluous.

Chas.

[Mike S]

I sort of cling to the idea that if something is printing under my shirt it could be something other than a handgun - a cell phone or something.

Whether or not I should be paranoid I strive to maintain good concealment. My goal is for nobody to suspect there's a sidearm in the crowd.

While it may not be a crime to print, my personal philosophy is the same. Ideally I don't see a trace of what I'm carrying in the mirror before I leave the house.

Agreed as well.

One important consideration for those that like to push the limits on printing, though; even if a 30.06 isn't posted, if the property owner/person in charge sees it (because you didn't adhere to the definition of Concealed cited above...) you will be required to leave if asked. Same goes for improperly posted signage, or lack of 30.07 next year with OC.

[ELB]

To restate your argument, I believe are trying to argue that if a handgun is "openly discernible"...etc then the person carrying it is not carrying under the authority of his CHL, and therefore subject to arrest under PC 46.02, Unlawful Carry Weapons.

However, the fact that the person in your scenario has a CHL then creates at least a presumption that he is carrying under the authority of his license, and therefore 46.035, Unlawful Carry of a Handgun by License Holder would be the statute that applies, and the DA would have to prove intention, plain view, public place, and another person saw it.

To do otherwise means the prosecution has to attack the presumption of carry under authority of a CHL. This quickly gets to proving what "openly discernible" means. Good luck. I know of no place that that has ever been sorted out.

Here's my definition: "openly discernible" means you can see the actual gun, or a part of it, not just an outline or bulge in fabric. If the Legislature had not meant this, they would not modified "discernible" by putting "openly" in front of it.

Enjoy.


ETA: Maybe Mr. Cotton remembers discussion, if any, about what the Leg meant when "openly discernible" was first put in the law.

[thetexan]

The definition of a "concealed handgun" is now meaningless. When SB299 passed in 2013, it changed the operative language of a violation of TPC §46.035(a) from "intentionally fails to conceal the handgun to "displays the handgun in plain view of another person in a public place." Since concealment is no longer the operative language, the definition is now superfluous.

Chas.

That is my thinking however there are still a couple of loose ends. It may be that carrying a non-concealed(but not displayed) gun under the auspices of the CHL license which applies very specifically to clearly defined concealed handgun, and the offense defined in 46.035a are two separate possible violations and not simply 46.035a being a revised and updated version of 411.171.

When the legislature wrote...

(a)AAA license holder commits an offense if the license holder carries a handgun on or about the license holder ’s person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays [fails to conceal{removed}] the handgun in plain view of another person in a public place.

the previous definition of "concealed" in the phrase "fails to conceal" could not have derived its definition from 411.171 since that only applies to Subchapter H uses. That seems to mean that the word "concealed" as used in 46.035a did not take its meaning from 411.171 but rather was intended to take the customary and normal usage of the word. Or, the legislators DID use the definition in 411.171 wrongfully, or without expanding the limited use of the definition as specified in 41.171 where is is limited to Subchapter H.

The point is that the offense specified in 46.035a depends now on the word "display" rather then "conceal" and their definitions, and the words "intentional" and "failure".

If one fails to conceal a handgun as per the definition of "concealed handgun", the definition of the type of gun one is given a license to carry, is one carrying a gun for which is does not have a license, forget 46.035a, which is another offense. In other words, carrying a non-concealed (but not displayed) handgun under the auspices of the CONCEALED (as defined in 411.171) HANDGUN LICENSE, would be akin in carrying an illegal knife and claiming one does so under the auspices of the CHL. An illegal knife is just as far from meeting the definition of "concealed handgun" as a "non-concealed" (but not displayed) handgun.

I'm not trying to argue at all. I agree that 46.035a covers the issue now. I'm just wondering if the idea that the auspices of the CHL applies very specifically to a properly concealed (by definition) handgun, and thus, in that regard, printing still is of concern, at least in a technical sense. As far as I know we have yet to have this specific question test in court.

tex

[thetexan]

To restate your argument, I believe are trying to argue that if a handgun is "openly discernible"...etc then the person carrying it is not carrying under the authority of his CHL, and therefore subject to arrest under PC 46.02, Unlawful Carry Weapons.

However, the fact that the person in your scenario has a CHL then creates at least a presumption that he is carrying under the authority of his license, and therefore 46.035, Unlawful Carry of a Handgun by License Holder would be the statute that applies, and the DA would have to prove intention, plain view, public place, and another person saw it.

To do otherwise means the prosecution has to attack the presumption of carry under authority of a CHL. This quickly gets to proving what "openly discernible" means. Good luck. I know of no place that that has ever been sorted out.

Here's my definition: "openly discernible" means you can see the actual gun, or a part of it, not just an outline or bulge in fabric. If the Legislature had not meant this, they would not modified "discernible" by putting "openly" in front of it.

Enjoy.


ETA: Maybe Mr. Cotton remembers discussion, if any, about what the Leg meant when "openly discernible" was first put in the law.

I saw this after I posted the last post. This is a good point. The intent would be different between the case of someone carrying a non-concealed non-displayed gun and one carrying an illegal knife as in my previous example, and thus my logic there fails. Good point.

It would be simple to defend your offense of non-concealment as an indiscretion while intending to conceal, even if it wasn't. And, in the face of the 46.035a language, as long as it wasn't intentionally displayed, the error would be more procedural than criminal.

Ok. I can go back to the bliss I enjoyed before my walk in the park...

tex

[The Annoyed Man]

There is no law against "printing". What you deem "openly discernible" might be nothing more than a glasses case and a cellphone holder........or an insulin pump.....or a Leatherman and a flashlight....... Noticing a bump under someone's shirt is meaningless as it could be any one of a dozen different things. I'd say that you'd have to have the gun SO clearly outlined..... like trying to wear it under a tight-fitting spandex t-shirt.... that the observer could read the rollmarks on the slide. Otherwise, it might not be the best concealment, but it is legal.

[Abraham]

TAM,

Right.

A bulge, a bump, isn't something to worry about, but (sigh) many drone on endlessly about this bit of minutia or other, cuz, it's fun to go OCD about stuff...I guess.

[Charles L. Cotton]

I'm not sure that I fully understand your point.

A CHL cannot violate Tex. Penal Code §46.02, at least as it applies to carrying a handgun outside one's property, motor vehicle or boat. The only offense for "intentionally display[ing] a handgun" in front of another person in public is found in Tex. Penal Code §46.035(a). As already noted, the definition of a "concealed handgun" is irrelevant now. However, prior to 9/1/13, the definition found in Tex. Gov't Code §411.171(3) was controlling in terms of whether the gun was concealed for purposes of a violation of TPC §46.035(a). When a controlling term is not defined, the rules of statutory construction require that you look to other relevant codes/statutes to see if the term at issue is defined. In this case. §411.171 is directly on point, so that definition was controlling prior to 9/1/13.

As for the mens rea (required mental culpability), since SB60 was passed in 1995, only intentional conduct would support a conviction under TPC §46.035(a).

Chas.

The definition of a "concealed handgun" is now meaningless. When SB299 passed in 2013, it changed the operative language of a violation of TPC §46.035(a) from "intentionally fails to conceal the handgun to "displays the handgun in plain view of another person in a public place." Since concealment is no longer the operative language, the definition is now superfluous.

Chas.

That is my thinking however there are still a couple of loose ends. It may be that carrying a non-concealed(but not displayed) gun under the auspices of the CHL license which applies very specifically to clearly defined concealed handgun, and the offense defined in 46.035a are two separate possible violations and not simply 46.035a being a revised and updated version of 411.171.

When the legislature wrote...

(a)AAA license holder commits an offense if the license holder carries a handgun on or about the license holder ’s person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays [fails to conceal{removed}] the handgun in plain view of another person in a public place.

the previous definition of "concealed" in the phrase "fails to conceal" could not have derived its definition from 411.171 since that only applies to Subchapter H uses. That seems to mean that the word "concealed" as used in 46.035a did not take its meaning from 411.171 but rather was intended to take the customary and normal usage of the word. Or, the legislators DID use the definition in 411.171 wrongfully, or without expanding the limited use of the definition as specified in 41.171 where is is limited to Subchapter H.

The point is that the offense specified in 46.035a depends now on the word "display" rather then "conceal" and their definitions, and the words "intentional" and "failure".

If one fails to conceal a handgun as per the definition of "concealed handgun", the definition of the type of gun one is given a license to carry, is one carrying a gun for which is does not have a license, forget 46.035a, which is another offense. In other words, carrying a non-concealed (but not displayed) handgun under the auspices of the CONCEALED (as defined in 411.171) HANDGUN LICENSE, would be akin in carrying an illegal knife and claiming one does so under the auspices of the CHL. An illegal knife is just as far from meeting the definition of "concealed handgun" as a "non-concealed" (but not displayed) handgun.

I'm not trying to argue at all. I agree that 46.035a covers the issue now. I'm just wondering if the idea that the auspices of the CHL applies very specifically to a properly concealed (by definition) handgun, and thus, in that regard, printing still is of concern, at least in a technical sense. As far as I know we have yet to have this specific question test in court.

tex

[JALLEN]

So now you might be breaking the law if an observer makes a lucky guess about the costume malfunction?

[Beiruty]

The definition of a "concealed handgun" is now meaningless. When SB299 passed in 2013, it changed the operative language of a violation of TPC §46.035(a) from "intentionally fails to conceal the handgun to "displays the handgun in plain view of another person in a public place." Since concealment is no longer the operative language, the definition is now superfluous.

Chas.

This is our man.