Effective January 1, 2016 Texans will be able to open-carry a loaded firearm.

This creates some questions: Who can carry?  What restrictions are there on your right to open carry? What about the police; does this mean they can stop anyone seen openly carrying a firearm?

Let’s take them 1 by 1.

The Law 

Individuals are Authorized to openly carry a handgun in the same places that allow the licensed carrying of a concealed handgun with some exceptions.  You are required to first obtain a concealed handgun license.

Unconcealed (open-carry) handguns, whether loaded or unloaded, must be carried in a belt or shoulder holster.

If you already have a valid CHL, you do not need to take any additional measures to be allowed to open-carry, or concealed carry with their valid existing license.

A separate license will not be required to open carry. No additional fee will be required.

No additional training is required to be permitted to open-carry. Additional training will be added to the curriculum for new applicants of Concealed Handgun Licenses related to the use of restraint holsters and methods to ensure the secure carrying of openly carried handguns. The new curriculum will be required for all classes beginning January 1, 2016.

Handgun Licenses will no longer be “CHL” (Concealed Handgun Licenses), they will become LTC (License to Carry).

The eligibility criteria to obtain a license to carry do not change.

You can take a look at a text of the bill passed by the legislature and signed into the law here: House Bill 910.

Restrictions

Open carry is not permitted by a license holder in the following locations, regardless of whether the handgun is holstered:

• Institute of higher education or private or independent institution of higher education
• Any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area of an institution of higher education or private or independent institution of higher education
• by an individual who is acting as a personal protection officer under Chapter 1702, Occupations Code and is not wearing a uniform.

Sign Reqs. for Businesses Prohibiting Carry of Weapons

Penal Code Section 30.06 provides the language to be included on signs to indicate license holders are forbidden to carry concealed.

Penal Code Section 30.07 provides the language to be included on signs to indicate license holders are forbidden to open carry.

Posting of both signs is an indication by the business that license holders are forbidden to carry concealed or openly.

Police Interactions

One pitfall in the law that you will not see talked about a lot is the implications when it comes to police interactions.  Normally, the police need reasonable suspiction to temporarily detain and question someone, and check their identification.  However, if you are seen openly carrying a handgun, the police will be authorized to stop and check the persons License to Carry without any additional reason.  In other circumstances, the police must have specific and articulable facts taken together with rational inferences from those facts to believe that a person has committed an offense or is about to commit an offense.  Not so if you are open-carrying.

So basically, by openly carrying, you are giving the police justification to stop you and question you, without any independent reason.

House Bill 554 (Effective September 1, 2015) adds some defenses to firearms offense prosecutions.

• Amends the Penal Code to add a defense to prosecution if the actor possessed a handgun that he or she is licensed to carry at the security checkpoint of an airport, and exited the screening checkpoint for the secured area immediately upon completion of the required screening process and notification of possession of the handgun.
• Adds the actor cannot be arrested for the sole offense of possessing a handgun that he or she is licensed to carry, unless a police officer gives the actor the opportunity to leave the area and he or she does not immediately comply.

CHARGED WITH A WEAPON CRIME?

There is some confusion over the question of whether you need a Concealed Handgun License (CHL) to carry a loaded handgun in your vehicle…so here is the skinny:

IN TEXAS, you MAY carry a loaded handgun in your vehicle WITHOUT A CHL If you are NOT:

1. a convicted felon;
2. a gang member (as defined under the Texas Penal Code);
3. involved in criminal activity more serious than a traffic violation (class C Misdemeanor);
4. the handgun is NOT in plain view; or,
5. Otherwise prohibited by law from possessing a firearm.

In 2011 the statute was amended – and now in Texas you do not need a CHL to carry a loaded handgun in your vehicle, provided you don’t meet the above five elements.

So I can carry a loaded handgun in my glovebox or center console?

YES…IF…you are not doing anything else illegal (other than disobeying a class C traffic regulation), it is not in plain view, you are not a gang member, and not otherwise prohibited by law from possessing a handgun.

HOWEVER…if you are driving while intoxicated, in possession of marijuana, or controlled substances, you still can be charged with Unlawful Carrying of a Weapon.

AND IF you are a convicted felon, you can NEVER possess a handgun or other firearm in your vehicle.  Five years after you have been released from probation, parole or incarceration you may own a firearm in your home under Texas law (but not under Federal Law…but that is a discussion for a future post…)

Texas Penal Code

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

ARRESTED ON WEAPONS CHARGES?