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 relating 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.

CHARGED WITH A WEAPON CRIME?

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?