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In TX, Openly Carrying Handgun Subjects You to Police Seizure

There has been some debate about the implications on openly carrying a firearm and police interactions.  Can a police officer stop a citizen seen openly carrying a firearm (on property not owned by him or under his control) simply to check to see if the citizen has a License to Carry?

While I respect the arguments by some of my colleagues that a person can not be detained and questioned simply because they are seen openly carrying a firearm, they are incorrect.  As I will explain further below, the statutes Opencarryrelating to the carry of firearms specifically permit officers to do so.  As I have said before, by choosing to openly carry a firearm, you are giving the police an excuse to stop you and question you.

Under Section 411.205 of the Texas Government Code you must produce your license to carry on demand.  This is in essence a waiver of a citizens ordinary right not to be stopped, ID’d and questioned without reasonable suspicion they are engaged in (or have been engaged in) criminal activity.  If you fail to produce the license would then be reasonable suspicion to detain.

One interesting aspect of this situation is: what is the penalty for failure to produce your license on demand?  Technically there is no specific penalty for not doing so, but an argument could be made that you are violating the Texas Penal Code by Interfering with Official duties of the law enforcement officer.  The Department of Public Safety could come up with a penalty in this situation, I would be on the look-out for this to happen over the next few years.

It is also important to note that if a law enforcement officer sees a person carrying a handgun (while not on the persons own property, motor vehicle or watercraft), he then has reasonable suspicion to believe the person is violating Texas law by Unlawfully Carrying a Weapon under Texas Penal Code 46.02.  Yes, it is true that an exception is carved out for those Licensed to Carry a firearm under 46.15(b)(6), an officer can investigate to see if the person qualifies for this exception.

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Houston Criminal defense attorney Tristan LeGrande