Regarding the CHL and carry of other weapons

txinvestigator · Post by **txinvestigator** » Fri Oct 19, 2007 12:44 pm

There has been some discussion here and on other boards regarding the non-applicability of Penal Code section 46.15 that allows a CHL holder to carry a handgun. Some believe that section allows the carry by a CHL holder of ANY weapon listed under 46.02.

I believe it does not, but won't get into the reasons here. The point of this thread is we now have a test case.

Some of you may remember from earlier this year I assisted an instructor with the firearms portion of his training. I heard him tell his students MANY wrong things, including 30.06 does not apply even if posted unless you are told to leave, etc. He also was, IMO, wrong about carrying other weapons under his CHL.

He tried to enter a courthouse recently with his cane. His sword cane. He was promptly arrested and charged with UCW, his CHL was taken up, and he is pending trial.

I will keep up and post updates here.

SkipB · Post by **SkipB** » Fri Oct 19, 2007 12:59 pm

I look at being able to carry a weapon for personal protection a priviledge and not a right of passage. Many people worked very hard to bring that to us. It floors me to think someone would push the realm to make a point. If there is any dought just don't pack it.

Kalrog · Post by **Kalrog** » Fri Oct 19, 2007 1:01 pm

Well, I wish he was right... but we will let the courts decide now.

KBCraig · Post by **KBCraig** » Fri Oct 19, 2007 1:13 pm

TXI, I don't know the answer off the top of my head, and don't have time to look it up. Is a sword cane an "illegal knife", or a "prohibited weapon"?

Makes a big difference when claiming CHL exemption.

txinvestigator · Post by **txinvestigator** » Fri Oct 19, 2007 1:20 pm

KBCraig wrote:TXI, I don't know the answer off the top of my head, and don't have time to look it up. Is a sword cane an "illegal knife", or a "prohibited weapon"?

Makes a big difference when claiming CHL exemption.

Swords are actually named under the definitions of illegal knives, which are under 46.02 UCW.

The only knives under 46.05, prohibited weapons are switchblades.

TPC 46.01
(6) "Illegal knife" means a:
(A) knife with a blade over five and one-half
inches;
(B) hand instrument designed to cut or stab
another by being thrown;
(C) dagger, including but not limited to a dirk,
stilletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.

How ya been KB?

zigzag · Post by **zigzag** » Fri Oct 19, 2007 1:36 pm

The guy has more head than brains. What a bad example of a case law.

shaggydog · Post by **shaggydog** » Fri Oct 19, 2007 1:45 pm

TXI - Where is this case being tried?

Renegade · Post by **Renegade** » Fri Oct 19, 2007 1:55 pm

Entering a Court House with a sword is a violation of 46.02 & 46.03. So he might still be charged with 46.03.

Did he have a handgun too? The sword exemption only works if he had his handgun too:

Â§ 46.15. NONAPPLICABILITY

...

b) Section 46.02 does not apply to a person who:

(6) is carrying a concealed handgun and a valid
license issued under Article 4413(29ee), Revised Statutes, to carry
a concealed handgun of the same category as the handgun the person
is carrying;

I also do not think they can legally seize his CHL, doesn't that have to go through an administrative process?

Since this is now public info, please post details (Name, and Court), so I can follow on my own.

seamusTX · Post by **seamusTX** » Fri Oct 19, 2007 1:58 pm

Isn't carrying a weapon into a courthouse a violation of PC 46.03?

In that case, having a CHL is not an exception or defense:

(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.

- Jim

barres · Post by **barres** » Fri Oct 19, 2007 2:21 pm

seamusTX wrote:Isn't carrying a weapon into a courthouse a violation of PC 46.03?

In that case, having a CHL is not an exception or defense:
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
- Jim

IIRC, a courthouse,no. A courtroom, yes.

seamusTX · Post by **seamusTX** » Fri Oct 19, 2007 2:30 pm

barres wrote:IIRC, a courthouse,no. A courtroom, yes.

That has never been clear.

PC Â§46.03. PLACES WEAPONS PROHIBITED. (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
(1) "Premises" has the meaning assigned by Section 46.035 [building or any portion of a building].

Is the building lobby off-limits?

Well, we may see in this case.

- Jim

ELB · Post by **ELB** » Fri Oct 19, 2007 2:33 pm

SkipB wrote:I look at being able to carry a weapon for personal protection a priviledge and not a right of passage. Many people worked very hard to bring that to us. It floors me to think someone would push the realm to make a point. If there is any dought just don't pack it.

SkipB, I have to take great exception to your comment. Carrying a weapon for personal protection is most emphatically not a privilege, it is certainly a right, and one that has been grossly trampled on at various times in history, with unhappy results. This is a very fundamental concept: the very basis of shall-issue concealed carry laws is that the state has no business denying you this right if you have not grossly abused it, e.g. committed unwarranted violence on your fellow citizen. The concealed carry law as it stands is better then what we had before it was enacted, but it still infringes way too much on one's right to be armed. It also suffers from basically being limited to handguns. Ridiculous that one can carry a handgun but certain kinds of knives are illegal for the same person to carry. Rubbish. The law focuses way too much in general on controlling "things" versus controlling criminals.

If Mr. Swordcane was imparting wrong info on what the law says, shame on him. If he did not purposely choose and prepare for his confrontation at the courthouse but merely blundered into it, then he wasn't being smart either, but I hope for the best for him. Test cases are important (see, e.g., Rosa Parks, Parker vs Washington D.C.), if you want to change things within the existing system of laws, but you need to be willing and prepared to take some hits. Most of us don't have the guts and ability to do that, me among them, but I hope we have some that will continue to push the law, both legislatively and in court.

elb

frankie_the_yankee · Post by **frankie_the_yankee** » Fri Oct 19, 2007 2:33 pm

All I can say is that the guy's an idiot. I would guess that this incident is the culmination of a long "career" as a "gun shop lawyer".

If I were his attorney, I would advise him to mount an insanity defense. He can claim that he lacked the capacity to understand whether his actions were right or wrong due to severe mental disease or defect.

Of course, he'll get convicted anyway, but the trial would be more entertaining that way.

txinvestigator · Post by **txinvestigator** » Fri Oct 19, 2007 2:35 pm

Renegade wrote:Entering a Court House with a sword is a violation of 46.02 & 46.03. So he might still be charged with 46.03.

Did he have a handgun too? The sword exemption only works if he had his handgun too:

Â§ 46.15. NONAPPLICABILITY

...

b) Section 46.02 does not apply to a person who:

(6) is carrying a concealed handgun and a valid
license issued under Article 4413(29ee), Revised Statutes, to carry
a concealed handgun of the same category as the handgun the person
is carrying;

I also do not think they can legally seize his CHL, doesn't that have to go through an administrative process?

Since this is now public info, please post details (Name, and Court), so I can follow on my own.

It is MY opinion that even carrying a handgun, you cannot carry a sword. However, this thread is not to debate this issue. I would ask that any further debate or discussion of our opinions of the law be moved to another thread.

And he is being charged with 46.02, UCW.

Renegade · Post by **Renegade** » Fri Oct 19, 2007 3:10 pm

barres wrote:
seamusTX wrote:Isn't carrying a weapon into a courthouse a violation of PC 46.03?

In that case, having a CHL is not an exception or defense:
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
- Jim
IIRC, a courthouse,no. A courtroom, yes.

When we got SB501, we lost court buildings. If he got busted at the metal detector, my guess is he was clearly in "a building or a portion of a building", and NOT "any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area".

"Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.