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I think this is legal..What is legal is not always a good idea. .. It is legal to wear a suit of armor in an electric storm in an open field

TexasRifleman wrote:

OK, there has to be a definition to set the basis for what is concealed and what is not. The GC is that definition/standard.

That doesn't make any sense to me since the GC 411.171 says "411.171. DEFINITIONS. In this subchapter:" So that means that the only time that definition applies to anything is when it's used in GC 411.171 and nowhere else. The term "concealed handgun" is not used in the Penal Code at all, and PC also has it's own definitions in PC 46.01 and "concealed handgun" is not in the list so I don't see how you can connect the 2 in any way. If the Penal Code meant to refer to GC it would point back to 411.171 it or define it directly, but it doesn't so there is no such thing as a "concealed handgun" for the purposes of the Penal Code, only a handgun that is illegally "in plain view", not the same thing.

The only reference in Penal Code to GC 411(H) is that to carry as described in PC46.035, one must have a permit issued under the administrative rules in GC411. If you don't have the permit authorized in 411(H) then you are subject to another part of the Penal Code, 46.02 which also uses the EXACT SAME TERM as 46.035 "handgun in plain view".

46.02 "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 the handgun is in plain view"

How could it be legal for me to "print" on the dashboard of my car with a gun but not to "print" if I have a permit? The Penal Code uses the same term for both permit holders and non permit holders as it refers to a gun being visible.

PC 46.035 has to stand alone it seems to me, without need to refer back to GC411.171. The law means what the law says. Why doesn't Penal Code define the term "concealed handgun" if that term means anything?

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place.

It seems that the law change in 2013 did this intentionally. If they wanted it to still refer to "easily discernable" or "concealed" they would have written that into the bill.

They even intentionally removed the word "conceal" from the new law.

HB 299 "This bill amends the Texas Penal Code by changing the language from “fail to conceal” to “intentional display.” "

Not so sure why it is that hard to understand. GC 411 Subchapter H is referenced in 46.035. GC 411.171 is part of subchapter H. So, the definition for concealing, or 'not displaying' your handgun for 46.035 is 411.171.

Now, the way 46.035 used to read, was a license holder committed an offense if they intentionally failed to conceal. There was a lot of question about the wording, and whether the failure to conceal was intentional or not. Wording for the change was SPECIFICALLY made to state 'intentionally displays' so that even failing to conceal was not the issue, but they had to prove you were 'displaying' the gun intentionally.

I may not be explaining it clearly enough, so here is a really good breakdown on the former and current law when the change was made and how legally it effects concealed carriers http://www.multibriefs.com/briefs/exclu ... I3YeSvF_5w" onclick="window.open(this.href);return false;

Here is a good thread on the topic as well viewtopic.php?f=7&t=56332&p=690912" onclick="window.open(this.href);return false;

I may not be explaining it clearly enough, so here is a really good breakdown on the former and current law when the change was made and how legally it effects concealed carriers

Well that article seems to agree completely with what I'm saying:

The new law addresses both of the issues described above. First, an offense occurs only when a license holder "intentionally displays the handgun in plain view of another person in a public place." Yes, there may still be tough situations were a jury will have a hard time deciding whether the display was intentional or not, but an "intentional display" seems to be a somewhat higher standard than an "intentional failure to conceal."

That's my point exactly, "conceal", "failure to conceal", these terms no longer have any legal meaning from the view of whether or not there is an offense committed. The only possible way to commit an offense is to display the handgun itself, in plain view of another person in a public place. There is nothing to do with GC411.171 in that article either so it seems to serve literally no purpose at this point other than to cause confusion.

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place.

Excuse me Mr. BG sir while I fumble with this plastic bag on my side that's in the shape of a handgun for my wallet

TexasRifleman wrote:

OK, there has to be a definition to set the basis for what is concealed and what is not. The GC is that definition/standard.

That doesn't make any sense to me since the GC 411.171 says "411.171. DEFINITIONS. In this subchapter:" So that means that the only time that definition applies to anything is when it's used in GC 411.171 and nowhere else. The term "concealed handgun" is not used in the Penal Code at all, and PC also has it's own definitions in PC 46.01 and "concealed handgun" is not in the list so I don't see how you can connect the 2 in any way.

In that broad statement you are incorrect. Just glance at at PC §30.05, §46.03, and the term is even in the title of §30.06. Even PC §46.035 uses the phrase "handgun is concealed" three separate times, and I'd posit that the definition of "concealed handgun" is directly applicable to determining what is meant by "handgun is concealed." So the definition in GC §411.171(3) is still very much relevant to the Penal Code.

Let me try putting what Keith said in a different way. You are allowed to carry a concealed handgun under authority of Subchapter H, Chapter 411 of the Government Code. The definitions presented in GC §411.171 apply to all of Subchapter H, the law that gives you the authority to carry. The phrase "Subchapter H, Chapter 411, Government Code" appears 14 times in the Penal Code. It even appears in the item you've quoted:

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place.

The areas of the Penal Code dealing with legally concealed handguns are intrinsically and explicitly linked to Subchapter H, Chapter 411 of the Government Code because that's where the authority to carry comes from. Ergo, the definition of "concealed handgun" in GC §411.171 absolutely applies to the term when used in the Penal Code since there is no other overriding definition presented in the pertinent PC sections.

All that said: yeah; I agree with you. The ugly example photo you posted is very probably, IMHO, legal. But to determine what is meant elsewhere in the Penal Code when the terms "concealed handgun" or "handgun is concealed" are used, the definition in GC §411.171(3) is the decider.

Just because no one threw this out there yet, I guess I'll be the one to do it.

"You might beat the rap, but you won't beat the ride." I would prefer not to put myself into a situation that would "inconvenience" me like that.

YMMV, you may have a fatter wallet than I, etc.

Also, IANAL, nor did I sleep at a Holiday Inn last night.

Regardless, if you are arrested for something which is legal then this is an offense for the officer to abuse his authority. It is up to the LEOs and PDs to educate their forces what is the "current law". Even if no legal action is taken against the officer who did the illegal arrest. Most likely the "victim CHLer" would sue for a settlement in $100,000+ range.

Best to resolve this issue, is to sent this OP to local DA and ask him to state his position on this matter. Case closed.
As for me, the language of the new law is very clear. Nowhere it mentions anything about what is concealed or what is not concealed.

While we are talking about officers not knowing the law and if it is an illegal arrest, there is an interesting SCOTUS case that will be decided this year. They heard oral arguments in Oct. in a case where the question to be settled is if an officer is mistaken about the law, is it a good faith exception for purposes of search? One of the arguments raised in court was if officers can claim they did not know the law when the citizen is always told that ignorance of the law is no excuse.

The facts of the case make it very interesting to see what happens. The officer stopped a car for a blown stop light (one still worked but not both). He got consent to search and found illegal drugs. He was working drug interdiction and the stop light was what the court called a "legal pretext". He won at the local and appeals level until the state supreme court surprised everyone by pointing out that the state law required "a" stop light, as in just one.

I can't wait to see what the ruling is, if they decide to go through with it. There was some argument that they could dismiss the appeal as improvidently granted.

The case is Heien v. North Carolina, if anyone wants to follow it. Scotusblog summary and links are at:
http://www.scotusblog.com/case-files/ca ... -carolina/

As has been stated earlier the definition of concealed handgun given in TGC section 411 is defined for use in that section. The word concealed is used 28 times in 411 and each time the definition can be substituted instead.

In the rest of the PC you find terms such as 'in a concealed manner', 'concealed weapon', etc. In PC 46.035 the first indication of a violation for permit holders now uses the term '... intentionally displays the handgun in plain view of another person in a public place...' That is what has to happen to be in violation for permit holders now. Before the new definition was passed in the new law the 411 definition was used, perhaps improperly so, as the guideline for what was considered unconcealed. From this came the issue of 'printing' and the like.

This is no longer the case. I don't believe it is possible now under the new statute for printing to be of any concern. You may reasonably be able to openly discern using ordinary observation that the obvious printed shape of a gun under my shirt indicates the presence of a gun. But until such time that I intentionally (not even accidentally) display the handgun in the plain view of another person in a public place (not even a private place) I have not violated 46.035.

The elements of the 46.035a that a prosecutor would have to prove are...

1. it must be a handgun by definition
2. it must be on or about his person
3. it must be carried as such under the authority of Subchapter H of Chapter 411
4. it must be displayed
5. the display must be intentional
6. the display must be in plain view of another person
7. and the display must be in a public place.

When looking for guidance in defining terms such as 'display' or 'public place' you can turn to other code for either a direct definition, or other usages of these common use terms that demonstrate a contextual definition. Most simple terms are defined by their common everyday usage whose definition can be found in the dictionary. Please refer to a current copy of canons of Statutory Interpretation.

tex

It's obviously a "hobo wallet," not a gun.

JSThane wrote:It's obviously a "hobo wallet," not a gun.

You couldn't carry in municipalities that have banned plastic bags...

Beiruty wrote:Regardless, if you are arrested for something which is legal then this is an offense for the officer to abuse his authority. It is up to the LEOs and PDs to educate their forces what is the "current law". Even if no legal action is taken against the officer who did the illegal arrest. Most likely the "victim CHLer" would sue for a settlement in $100,000+ range.

It's already happened in Round Rock prior to the law changes. No suit was forthcoming and I think that was on legal advice. I don't know how many juries would hand out a $100k settlement for such an arrest anyway.. IF they did, we'd have a lot more test cases. Most states establish payout for incorrect imprisonment and it's not worth much. So it's going to be up to a jury to decide how much your civil rights are worth.

I don't see a lot of repercussions for arresting people on charges that don't stick at the DA level, at least where something controversial is going on. Look at the DPS arrests downtown of the OC guys carrying black powder.. Charges dropped. Nothing filed. Unless physical violence or too much force is used, I don't see many people going up against the city/county/state in regard to an arrest related lawsuit. Maybe one of the LEOs can speak up, but I'm not sure that there is a lot of downside for officers if they solve "the problem at hand" at least temporarily and there is a charge that "kinda" fits. Clearly they can't make something up, but if they get it wrong, there is some protection:

Looking at it a bit more and looking at why there isn't much downside for an officer to deal with these sort of issues, here is what the protection is:
http://en.wikipedia.org/wiki/Qualified_immunity" onclick="window.open(this.href);return false;

"insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

In other words, "whether a hypothetical reasonable person in the [LEOs] position would have known that his/her actions violated clearly established law" is the test. If a reasonable person might not have known, indemnity exists.

I take that to mean that little caveots of the law, such as the fact that some antique rifles aren't firearms... Or perhaps the little caveat about exposure being "intentional" - if those aren't things that "reasonable" people know about, then law enforcement is essentially indemnified from prosecution. Stop 10 people and ask them about seeing an exposed firearm. How many of them will know that it's illegal only if it's intentional?