1. Mark Kratovil, ACDA June 15, 2016
Open Carry In Texas: A primer on the new open carry laws and their effect on the public
Mark Kratovil, ACDA
June 15, 2016
Sharen Wilson
Criminal District Attorney

2. Overview
Most of the new open carry laws have gone into effect as of January 1, 2016
Campus carry goes into effect on August 1, 2016
What will be covered in this presentation
Brief overview of changes to Penal Code
Where citizens are permitted to openly carry handguns
What law enforcement can do when encountering someone carrying a handgun

3. Need a License to Open Carry
As an initial matter, it’s critical to remember that under the new open carry law, citizens still must have a valid CHL to openly carry a handgun
Now known as a License to Carry a Handgun (LTC)

4. Will Open Carry Pose a Danger to the Community?
Likely not, based on the experience of other states and Texas’ experience with concealed carry
44 other states have some form of open carry
California, Florida, Illinois, New York, South Carolina ban openly carried handguns
Many of the same safety concerns raised regarding open carry were raised in 1995 when concealed carry was enacted
Those fears were proven to be unfounded
In Texas, less than 0.5% of all criminal convictions in 2013 were of CHL holders
If a CHL holder who was openly carrying commits a crime, existing laws could be enforced against them, and open carry does not affect their prosecution
Oklahoma enacted open carry in 2012
In 2013, Oklahoma saw a 7.3% dip in violent crime

5. Will Open Carry Pose a Danger to the Community?
Thus far, it has turned out to be much less of a problem than was anticipated
Reminiscent of the Y2K bug panic
Lots of preparation for something that hasn’t caused a problem (so far, at least)
“I said before this became law that I thought it was going to be much ado about nothing but I didn’t know it was going to be this much nothing.” – Tarrant County Sheriff Dee Anderson to the Fort Worth Star Telegram, January 16, 2016

6. Penal Code Provisions Summary
30.06 – Trespass by license holder w/ concealed handgun
Notice required; Class A or C
30.07 – Trespass by license holder w/ openly carried handgun
46.02 – Unlawful carrying weapons
Defendant carries handgun and is not licensed or refuses to show license; Class A
46.03 – Places weapons prohibited
Defendant takes a gun to a specific prohibited place (courts, school premises, etc.), regardless of license; no notice required; 3rd degree felony
– Unlawful carrying of a handgun by license holder
Displays handgun; carries at specific places (church, bar, stadium, hospital, amusement park), while intoxicated, openly carries on any college campus, concealed carries on campus that has opted out; notice required; 3rd degree or Class A

7. Statistics Show Prosecutions are Relatively Rare
Data from Tarrant County between January 1, 2015 – June 15, 2016
30.06 – Trespass by license holder w/ concealed handgun
No prosecutions in either 2015 or so far in 2016
30.07 – Trespass by license holder w/ openly carried handgun
No prosecutions since law came into effect on January 1, 2016
46.02 – Unlawful carrying weapons
690 misdemeanor prosecutions, 29 felony prosecutions (no differentiation between handguns, illegal knives, or clubs)
46.03 – Places weapons prohibited
18 felony prosecutions (no differentiation between handguns, illegal knives, or clubs)
Mainly weapons brought to schools, but sometimes to DFW airport
– Unlawful carrying of a handgun by license holder
24 misdemeanors, 1 felony (gun at a bar)
Most common situation is someone intoxicated carrying a gun, especially DWI with gun in car

8. New Criminal Offense
Trespass by a license holder with openly carried handgun
Penal Code § 30.07
Very similar to trespass by concealed handgun license holder in § (which was already on the books prior to new laws)
Offense occurs if license holder:
Openly carries a handgun; and
Received notice that entry on the property by a license holder openly carrying was forbidden
Class C misdemeanor, unless party receives oral notice and refuses to leave, then it becomes Class A
For governmental property, only applies if it is a “prohibited place” mentioned in § or §

9. Unlawful Carrying By a License Holder, Penal Code § 46.035
Cannot open or concealed carry at any meeting of a governmental entity subject to Open Meetings Act
But license holder must still receive notice
Cannot open or concealed carry while intoxicated
Licensed security officers cannot violate any provision of Chapter 411 of the Government Code
Biggest issue is that non-uniformed security officers (such as bodyguards) have to conceal their firearm regardless of whether they are authorized to openly carry under any other law
Generally classified as Class A misdemeanors

10. No Carrying Allowed By License Holders
Flat prohibition on license holders carrying firearms under Penal Code § at these places:
School, educational institution, or any place a school event is being held
Exception for concealed carry on some college campuses
Courts or offices used by courts
Polling places on the day of an election
Place TDCJ is conducting an execution on day of execution
Secure area of an airport
Racetrack
High school, collegiate, or professional sporting event building or stadium
Nature of event at stadium controls, not the fact it is a stadium
Third degree felony
Effective August 1, 2016, college stadiums must give notice, but the other stadiums do not

11. Government Property
If a government building does not have a court, a licensed citizen is permitted to carry on that government owned property
This includes libraries, city hall, administration buildings, parks, etc.
Penal Code § 30.06(e) & 30.07(e)
A major exception to this rule is for rooms in government buildings where meetings subject to Texas’ Open Meetings Act are held
Cannot carry in those rooms, but must still give notice
Penal Code § (c)

12. Property Owned By the Government Leased to Private Entity
Land or facilities owned or leased by the government are generally places guns cannot be excluded from
If the government leases property it owns to a private party, the private party becomes the “owner” for purposes of the Penal Code under § 1.07(a)(35)
Example: a hotel built by a private company on land at an airport owned and operated by the government
Choice on excluding guns rests with private leasing party
Similar to landlord/tenant situation

13. Concealed Carrying on College Campuses
A private college campus can opt out of allowing license holders to concealed carry on their campus
The board of regents at public colleges may establish rules regulating the carrying of concealed handguns on campus, but can’t generally prohibit carrying by license holders per Government Code §
But the campus must still give notice they are prohibiting concealed carry per Penal Code § (a-2) & (a-3)
Still an offense to open carry on a college campus, regardless of signage

14. Concealed Carrying on College Campuses
Every private university and college in Texas has opted out of allowing campus carry
Texas Tribune has compiled a database of each private institution’s policies
Policies adopted by public institution’s in Texas vary
Dallas Morning News has a tracker outlining policies

15. Concealed Carrying on College Campuses
Common places where larger public universities don’t allow concealed carry
Disciplinary hearings
Research labs that are “high hazard” (i.e., dangerous materials present in lab or could impede psychological testing)
Patient care areas in medical facilities
Policies for guns in dorms vary wildly form campus to campus
Some allow it, some forbid it, and others allow it subject to strict storage requirements or only in certain dorm facilities

16. Wrongful Exclusion From Government Property
If a governmental entity wrongly excludes license holders from carrying somewhere, the citizen has a remedy under Government Code §
Must first send written notice to the entity and wait three days
If not fixed by governmental entity, citizen can alert Attorney General
AG then investigates
If AG agrees with citizen, governmental entity has 15 days to fix
If not fixed after 15 days, AG can sue for both equitable relief and monetary civil penalty ($1,000-$1,500 for first day, $10,000-$10,500 for each day after)
Any civil penalty assessed goes to the crime victim compensation fund

17. “Prohibited Place” Signage
Buildings may display a sign with the following language:
“Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly”
Mirrors language in signage prohibiting concealed carry
This signage serves as the required notice under trespass by a license holder and unlawful carrying by a license holder
But note that there is no notice requirement under for “prohibited places,” such as courts, schools, polling places, and secured area of airports

18. “Prohibited Place” Signage
Individuals and businesses are free to prohibit open carry on private property by displaying the “prohibited place” signage
Two different signs are in effect
Signage prohibiting concealed carry under Penal Code § 30.06
Signage prohibiting open carry under Penal Code § 30.07
Special 51% sign for certain places that sell alcohol
Language of these signs is nearly identical
But both signs need to be displayed to prevent all types of carrying on a particular property

19. “Prohibited Place” Signage

20. “Prohibited Place” Signage

21. “Prohibited Place” Signage
Signs such as these have no legal effect in Texas

22. Do We Have To Put Up a Sign?
There are three ways to give notice that guns are not allowed
A sign that complies with § 30.06/30.07
A card or other document with § 30.06/30.07 language
Oral notice by owner or someone with apparent authority to act for the owner
For places where notice is not legally required, might be a good idea as a practical matter to put something up, even if they don’t track language of 30.06/30.07

23. Places Where Notice Is Required to Legally Exclude Guns
Private property (§ 30.06/ § 30.07)
College campus or where college activity conducted (§ (a-2), (a-3))
As of August 1, 2016
Bars that make 51% of their revenue from alcohol (§ (b)(1))
Hospital premises (§ (b)(4))
Amusement parks (§ (b)(5))
Note no distinction on property vs. premises here
Church, synagogue, or other places of worship’s premises (§ (b)(6))
Collegiate sporting event premises (§ (b)(2), (l))
Open meeting of governmental entity (§ (c))

24. No Notice Required to Legally Exclude Guns
Premises of school or education institution or grounds where a school sponsored activity is occurring (§ 46.03(a)(1))
Polling place on day of election (§ 46.03(a)(2))
Courts (§ 46.03(a)(3))
Racetrack (§ 46.03(a)(4))
Secured area of airports (§ 46.03(a)(5))
High school or professional sporting event or interscholastic event premises (§ (b)(2))
Nature of event controls, not the venue
Correctional facility premises (§ (b)(3))

25. The Hot Button Question
Can law enforcement demand to see your license to carry a handgun and arrest you if you refuse to produce it?

26. The Hot Button Question
Three reasons to answer “Yes”
Statutory authority under Government Code
Case law from federal courts in states with similar open carry laws, plus a big hint from the Court of Criminal Appeals
Legislative history of the open carry bill

27. Statutory Authority to Demand LTC
On demand of a peace officer, a carrying citizen must show their driver’s license and LTC
Government Code §
“If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.”
Presumptively illegal to be carrying a handgun
Penal Code § – Unlawful carry

28. Officer May Disarm Officers may disarm license holders
Government Code § (a)
Peace officer in lawful discharge of their duty may disarm license holder any time the officer reasonably believes it is necessary for protection of license holder, officer, or another person
Must return firearm once license holder is discharged from the scene if no arrest of the license holder occurs or if they do not otherwise pose a threat

29. A Hint From the Court of Criminal Appeals
Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014)
Defendant was openly carrying a handgun in the common area of a condominium complex where he owned a unit; convicted of un lawful carry under § 46.02, but reversed because common area was still his property
“It is true that a police officer would need probable cause to arrest someone for violating the [unlawful carry statute], but it is possible that an officer could stop someone and conduct an investigative detention on reasonable suspicion and develop probable cause during that detention.”
Consensual encounter, as usual, is permissible for anyone openly carrying

30. Carrying Without a License
If a person is carrying a firearm, either openly or concealed, and they are not able to produce a license on demand, they have committed the offense of unlawful carrying of a weapon under Penal Code § 46.02
New open carry laws do not change this

31. Carrying Without a License
The only times when someone without a license can carry a handgun, either openly or concealed:
In their own motor vehicle or watercraft (must be kept out of plain view)
Directly en route to their motor vehicle or watercraft
On their own premises or premises under their control

32. “Traditional Open Carry” States Are Different Than Texas
Other states with open carry laws don’t allow temporary investigative detentions of citizens who openly carry
North Carolina and Ohio are “traditional open carry” states, meaning you have to get a license to concealed carry, but don’t need one to open carry
Because of this, NC and Ohio police can’t temporarily detain based on openly carrying alone
Texas is different because you need a LTC to open carry, which is why temporary detentions are permissible here
Constitutional carry states require no license to carry a handgun at all
Seven states, including Arizona and Arkansas

33. Delaware Has a Similar Law
Texas and Delaware’s laws in regards to carrying handguns are similar in that there is a presumption that the handgun is being carried illegally until the license holder produces their LTC
Terry stops (temp. investigative detentions) of people carrying firearms have been held permissible in Delaware by federal and state courts
United States v. Gatlin, 613 F.3d 374 (3d Cir. 2010) (reasonable suspicion to conduct a Terry stop existed in Delaware case based on reliable tip that defendant had a concealed handgun)
Lively v. State, 427 A.2d 882 (Del. 1981) (having a handgun is presumptively illegal; burden is on defendant to establish they have a license to carry)

34. The Legislature Considered This Issue
An amendment was taken out of the final bill that sought to specifically prohibit law enforcement from temporarily detaining citizens openly carrying handguns
“A peace officer may not make an investigatory stop or other temporary detention to inquire as to whether a person possesses a handgun license solely because the person is carrying a partially or wholly visible handgun carried in a shoulder or belt holster.”
Proposed Government Code § did not make it out of conference
Senate and House negotiated in conference to remove the Huffines/Dutton amendment (“Cop-Stop” language)
This amendment was a huge point of debate and created unusual inter-party coalitions and intra-party fighting; not a straight Democrat vs. Republican issue
Opponents called it a “back door to constitutional carry”

35. Questions?
Don’t be gun-shy