TPC §30.05 applies to everyone, but it cannot be used to prosecute a CHL for trespass, solely because he/she had a pistol. Yes, an arrest can be made, but it could expose the person in control of the property, the officer and his department to liability in a civil action. The person in control of the property could face a civil suit for malicious prosecution and the LEO and his dept. could face a §1983 action.
TPC §30.05(f) makes it a “defense to prosecution� that the sole reason for excluding the CHL was his carrying of a handgun, but under Texas law, everything is a “defense to prosecution� unless its expressly labeled an “exception.� So even a police officer can be arrested for trespass for carrying his gun on the property. The language in TPC§30.05(g) that protects a LEO is also a “defense to prosecution� because it doesn’t say it’s an “exception.� All of the TPC §46.15 “Nonapplicability� provisions are also “defenses to prosecution� for the same reason. So a hyper-technical approach, which in my view is quite risky, would allow not only the arrest of a CHL, but also an off-duty or on-duty police officer, for UCW (TPC §46.02), thus requiring them to assert the §46.15 “defense to prosecution.�
So why aren’t LEO’s and CHL’s being arrested for UCW (TPC §46.02)? I believe there are two reasons; one practical and one legal. First the practical reason: it would be absurd to arrest someone knowing they would prevail by asserting a “defense to prosecution.� Most “defenses to prosecution� do not lend themselves to an officer’s immediate determination of their applicability to a citizen during a traffic stop or other encounter, but having a proper LEO ID or a CHL is not among them. This can be easily and quickly determined, so CHLs and LEOs aren’t being arrested for UCW. The legal reason for not making such arrests is that an arrest not made in good faith can lead to civil liability for the property owner, the LEO individually and his/her department. Ignorance of the law is a double-edged sword. Both citizens and LEO’s are charged with the knowledge of all laws (an absurd but necessary standard), so making an arrest the officer knows has no chance of a successful prosecution could lead to civil liability. (The Ohio Supreme Court has expressly held that making an arrest when the officer knew the citizen had a “defense to prosecution� to the charge was actionable.) Note, I said “could� not “would.� It would depend upon the circumstances.
In the hypothetical case of a CHL being arrested pursuant to TPC §30.05 at a public event, I find it difficult see a situation where an officer could make an arrest in
good faith without asking the event promoter why the CHL is being excluded from a public place and/or a public event. (A public event is factually different from a private residence or business, though not legally different.) As soon as the promoter says “it’s because he has a gun,� then the officer immediately knows a successful prosecution against a CHL is not possible pursuant to TPC §30.05. (Obviously, the CHL could tell the officer why he was told to leave, thus putting the officer on notice.) He must then look to see if TPC §30.06 is applicable; i.e. was notice given, or in this case, is the property owned or leased by a governmental agency? In our hypothetical, it is government-owned property, so the officer knows TPC §30.06 does not apply. Choosing not to inquire why the promoter wants the CHL arrested is not an option for the LEO. He has a duty to conduct a reasonable investigation of the facts before making an arrest and failure to do so can lead to civil liability. The old adage “you can beat the rap, but you can’t beat the ride� has become significantly more risky for the officer and his department in recent years.
I fairness to all LEOs, I don’t think civil liability should or would attach to an officer’s arrest of a person, if there was any ambiguity as to the scope of any statute, including TPC §§ 30.05 or 30.06. However, I have never heard anyone argue that TPC §30.05 is ambiguous, as it applies to a CHL holder – it simply doesn’t apply. I have heard the argument that TPC §30.06 can be used by a private lessee or event promoter using government owned or leased property. There is no basis for this claim whatsoever. There is no case law so holding, nor is there anything in the legislative history of SB501 to indicate the statute means anything contrary to what is expressly stated. The language of the statute is quite clear:
TPC §30.06(e) wrote: It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035. (Emphasis added.)
It is the ownership or leasing of the property by a governmental entity or agency that is controlling, nothing else. If the legislature had intended to allow a private lessee to utilize TPC §30.06, then it could and would have so stated in SB501.
All this said, I agree that the statute could use some tweaking. Rather than change TPC §30.05, I think it should be made clear that the only statutory provisions that are a “defense to prosecution� or “affirmative defense� are those that are so labeled. Everything else is, or has the effect, of an “exception.�
This is a great law school exam question or classroom lecture/discussion topic, not my recommended course of action. CHL/LEO has given a good example of how this matter would likely be treated in the real world. While I'm confident in my analysis of this issue, I would never invite a client of mine to embark on this quest, unless he had already been wrongfully arrested.
Chas.
Here are the relevant TPC provisions:
TPC §30.05 wrote:(f) It is a defense to prosecution under this section that: (1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and (2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.
(g) This section does not apply if: (1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and (2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.
TPC §30.06 wrote:(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
