Wednesday, June 10, 2015

Daily Briefing for Wednesday, June 10, 2015

First Thoughts On Texas Legislation On Open Carry and Campus Carry

Texas now joins a long list of states - a whopping forty four states allow for the open carry of handguns in some form or another.  Currently, Texas does not.  That is about to change, thanks to House Bill 910.

On January 1, 2016, those with a concealed handgun license may legally engage in open carry (OC) of handguns in public.  There are some restrictions to the ability to OC, and the privileges created by this bill will no doubt be the source of much discussion and debate moving forward.

In addition, the Texas Legislature passed Senate Bill 11, which allows for concealed carry by CHL holders on college campuses.  There are a number of restrictions on campus carry in the bill, discussed below. 

Open Carry

Let's start with my first thoughts on open carry.  As one legislator said in an unrelated hearing I attended during the session, "I reserve the right to change my opinion based upon subsequent testimony."  I adopt that rule as well - as lawyers and gun enthusiasts parse through the legislation, I may change my opinion on what these bills do.  It's my hope that this will give us some starting points on the analysis.

House Bill 910 amends a number of various statutes to allow CHL holders to OC provided that:

  • The CHL holder uses a belt or shoulder holster.
  • The CHL holder does not enter a premises where a 30.07 sign (which will read similarly to the current  30.06 sign) is posted.
  • While engaging in OC in a vehicle, the CHL holder keeps the gun in a shoulder or belt holster (simply having the exposed gun lying on the seat next to you apparently would still violate the law.)

A few thoughts about the bill:

  1. The bill creates a new section to the Penal Code - 46.035(a-1) – which prohibits open carry that results in the “intentional[ ] display[ ] [of] the handgun in plain view of another person” on the premises, driveway, street, or parking lot or garage of an institution of higher learning.  Before you jump to conclusions, please read the statute carefully – if you don’t “intentionally” display your handgun “in plain view of another person,” then you haven’t violated the law. 

    Contrast that language with the current language found in Penal Code section 46.035(b) which states it’s an offense to carry the gun in a whole list of places if you do so “intentionally, knowingly, or recklessly.”  The fact that “knowingly” and “recklessly” are omitted from the new subsection (a-1) means that you could in fact be “reckless” in your display in the parking lot and not violate the law.  I’m not urging reckless display, mind you, but that’s an important point to remember in the larger statutory scheme.

  2. The 30.06 rule gets some amendments as well.  Note the change on page 30, lines 2-5.  The new language states that it’s 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.”  Note that the current (and future) 30.06(B) reads in toto: “(b)  For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.”

    On the flip side, failing to adhere to the notice provided by the 30.06 sign goes from a Class A misdemeanor to a Class C misdemeanor. 

  3. CHL instructors will be required to cover the "use of restraint holsters and methods to ensure the secure carrying of openly carried handguns."  DPS will have to develop curricula and messaging it wishes CHL instructors to use when teaching this particular subject.  Note the term "restraint holster" is not defined in the bill.  During prior sessions, the Legislature considered OC bills that required at least a Level 2 retention holster.  This bill, however, has no such requirement.

Campus Carry

Senate Bill 11 permits CHL holders to carry on college campuses with certain restrictions.  Universities will have latitude to place "reasonable rules, regulations, or other provisions regarding the carrying of concealed handguns by license holders."  However, the institutions "may not establish provisions that generally prohibit or have the effect of generally prohibiting license holders from carrying concealed handguns on the campus of the institution."

A few observations about the campus carry bill:

  1. Private institutions may still prohibit campus carry.

  2. Open carry remains prohibited on college campuses.

  3. Those wishing to carry on campus will have to spend time learning the nuances of that particular campus' regulations on where a CHL holder can and cannot carry.  I cannot stress this enough: expect a patchwork of varying regulations on where you can and cannot carry from campus to campus.  If you are a CHL practitioner and plan on carrying your gun on campus, you will need to spend a fair amount of time studying whatever rules your campus promulgates.  In addition, it behooves you to get involved with campus leadership now so you can have a say in how these regulations are worded.

  4. This bill's effective date has led to some confusion.  This bill takes effect August 1, 2016.  However, colleges and universities other than community colleges must adopt rules, regulations or other provisions before August 1, 2016.  Community college students, faculty and visitors will not be able to avail themselves of the provisions of Senate Bill 11 until August 1, 2017.  Further, community colleges must promulgate the various rules and regulations regarding concealed campus carry prior to August 1, 2017.

My takeaways:

  1. Overall, I’m good with the way this turned out.  These bills passed in the waning hours of the legislative session, and it wasn't a certainty they would pass.  Some might argue that the bills do not go far enough or provide the CHL holder with sufficient protections.  I can tell you as an observer of the Legislature for over 12 years and as a registered lobbyist for five of those years, you rarely if ever get everything you want in a bill.  In this business, incrementalism is the key to making the changes you want.
  2. It will take some time for CHL practitioners, DPS and law enforcement agencies to see how these bills, once implemented, mesh with one another.  For example, it will now be legal for a CHL holder to openly carry on school grounds (provided they are not on the "premises" - namely the building itself - of the school.)  That same practitioner, however would not be allowed to carry on certain parts of a college campus deemed by the university to be too sensitive for citizens to be armed.  Let that sink in for a moment - you will be able to drop off your child at his or her elementary school front door, while openly carrying a firearm, but you will not be able to conceal carry your gun on parts of college campuses occupied almost exclusively by adults.
  3. As instructors, we have our work cut out for us.  As there are no longer any renewal classes for CHL holders, we can expect a virtual fashion show of Uncle Mike's, Fobus and Serpa holsters among our armed brethren.  There’s not much we can do about that other than cover it in non-CHL classes, blogs, and in CHL courses moving forward. 

  4. DPS will have its work cut out for it in trying to come up with curricula prior to the expiration of all of the CHL instructor certifications at the end of this year.

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