SECTION 5. Section 46.035, Penal Code, is amended by adding Subsection (h-1) to read as follows:
(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:
(1) a judge or justice of a federal court;
(2) an active judicial officer, as defined by Section 411.201, Government Code; or
(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.
SECTION 6. Section 46.15(a), Penal Code, is amended to read as follows:
(a) Sections 46.02 and 46.03 do not apply to:
........... [or]
(6) a district attorney, criminal district attorney, or county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.


Shannon-

What does this all mean then? I am truly confused.

The following out of HB 2300 refers to the Unlawful Carrying of a Handgun by a License Holder Offense in the Penal Code:

SECTION 5. Section 46.035, Penal Code, is amended by adding Subsection (h-1) to read as follows:
(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:
(1) a judge or justice of a federal court;
(2) an active judicial officer, as defined by Section 411.201, Government Code; or
(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.

The defense to prosecution section does not excuse 46.035(a), which makes it a crime to intentionally fail to conceal your handgun. Further, 46.035(b)(3) and (d) also still apply, so no going into a correctional facility with your gun and no drinking and packing.

Since 46.02 and 46.03 do not apply...what would the crime be for possessing one open and not concealed? Doesn't "does not apply" mean "no crime committed?"

I just want to ensure that none of us (ADA) become a test case for the CCA on this. Our office interprets the new statute to mean open carry is permitted for those listed.

[This message was edited by Bob Cole on 07-19-07 at .]

SECTION 6. Section 46.15(a), Penal Code, is amended to read as follows:
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer's or investigator's duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency; [or]
(6) a district attorney, criminal district attorney, or county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.

Cory, I think that is what I was initially reading, but you have to read it together with 46.035. A prosecutor won't be UCW if wearing a gun on his hip if he has a CHL, but a person with a CHL commits an offense if their gun is on their hip. A prosecutor who does not have CHL but has gun on hip is UCW. All this assumes the gun on hip is visible. Right GG?

[This message was edited by JohnR on 07-19-07 at .]

That's how I read it.

I posed the question to 2 patrol lieutenants from different agencies. They both gave different answers.

While I think, when reading the two together, it permits open carry (and so does my boss), I choose not to be in a position to need to explain why my picture is on the 5 o'clock news.

Thanks to John and Shannon for clearing this up. Personally, I am not intending any sort of open carry, but I am occasionally concerned with moving in and out of my vehicle and my firearm not being completely concealed.

How does this work if the County says employees can not have weapons in or on county property?

I don't think counties can do this. Look at 30.06(e).

Why couldn't a public official prohibit weapons as part of an office policy?

I dunno, JB, it seems contrary to what the Leg was doing in creating CHL and the exception in 30.06.

quote:

---

Originally posted by JB:
Why couldn't a public official prohibit weapons as part of an office policy?

---

A govt. employer can prohibit employees (but not non-employees) from carrying in the office:

Govt. Code � 411.203. RIGHTS OF EMPLOYERS. This subchapter does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a concealed handgun on the premises of the business.

I don't understand how the bill authorizes open carry, as 46.035 (a) is still in effect.

And for those of you considering getting a CHL, another benefit is that you bypass the NICS background check when buying a gun from a licensed dealer. For a CHL holder it is cash and carry at the gun shop, like the good old days.

Thanks, Boyd.

Very interesting. Are you going to implement that policy, JB? I don't know what my boss is going to do. As far as I know, no one has discussed it with upper mgmt.

I like my toes, so I'm just going to rely on my invisibility cloak for self defense.

I guess it goes back to the question.. if 46.02 and 46.03 do not apply to ADA properly licensed..what would they be charged with? This is where the confusion is, I think. Since unlawfully carrying a weapon is not applicable, and there is an affirmative defense for carrying in many of the places one was formally prohibited, what is the crime?

Yeah...thanks, Boyd. Some of us work for JB and were planning to lobby for some 2nd Amendment rights at our workplace but you went and got him all stirred up. He probably amended our policy manual right after your post.

quote:

---

Originally posted by Bob Cole:
I guess it goes back to the question.. if 46.02 and 46.03 do not apply to ADA properly licensed..what would they be charged with? This is where the confusion is, I think. Since unlawfully carrying a weapon is not applicable, and there is an affirmative defense for carrying in many of the places one was formally prohibited, what is the crime?

---

An intentional failure to conceal the handgun would be Unlawful Carrying of Handgun by License Holder per Sec. 46.035 (a). The offense is a Class A misdemeanor or F3, depending on the location, per 46.035 (g).

I prefer tasers in the workplace. By supervisors only.

I could go for that.