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I have a question that has occurred to me off and on over the years, which another thread (viewtopic.php?f=7&t=75571" onclick="window.open(this.href);return false;) brought forward from my reptilian brain today.

You'd think I know the answer to this, having carried for a while now, but I don't, and I would be really interested in the answer. I would be MOST interested in Charles Cotton's answer,as I think his answer would be definitive, but if anyone else has some light to shed on this question I'd welcome it.

As a CHL holder, is there EVER any situation in which you may lawfully claim that you are carrying under authority other than the authority conveyed by your CHL; OR.... does your CHL always trump other applicable law like MPA?

Here is an example of what I mean.... Under the MPA, having a CHL is not necessary to carrying a concealed handgun inside your vehicle. Anybody who is not barred by law from being in possession of a firearm, specifically a handgun, may have a concealed handgun inside their vehicle. But let's say that you have a CHL but you forgot it at home, you are armed, and you get pulled over on a routine traffic stop. In as much as you are required to have your plastic with you when you are carrying and to be able to show it upon LEO request (even though the penalties have been removed), can you tell the LEO who stops you on a traffic violation that, for today, you are carrying under the MPA rather than your CHL? Or, does the fact of your CHL always trump MPA? Mind you, I'm not talking about just walking around armed, which MPA does not allow; but specifically I'm asking about inside your vehicle, where either CHL or MPA might be applicable.

Another example.... In the above linked thread, the issue is a high-rise condominium which has been posted 30.06 at the entrance. Obviously, nobody can tell a condominium property owner that he or she cannot carry inside their residence; nor can they prevent the property owner from carrying in their vehicle. But assume for the sake of argument that in this case the 30.06 sign is valid, making it unlawful for a CHL to carry between vehicle and apartment. Since 30.06 is irrelevant to MPA and would not have any bearing on whether or not a resident who does NOT have a CHL may transport a concealed handgun from inside their residence to their vehicle, can a CHL holder claim that "from my front door to my car, I am carrying under MPA and not CHL"?

I'm sure I could think of other scenarios, but the general question is: is it ever legally defensible for a CHL holder to claim exemption from CHL limits in certain situations where the CHL would actually be more limiting than not having one?

I hope my question is making sense.....

The Annoyed Man wrote:...
I'm sure I could think of other scenarios, but the general question is: is it ever legally defensible for a CHL holder to claim exemption from CHL limits in certain situations where the CHL would actually be more limiting than not having one?

I hope my question is making sense.....

I think your question makes sense, but I don't know the answer. I brought up your "condominium" scenario when there was a discussion about having firearms in a hotel room. If all a hotel does is put up a 30.06 sign, then CHLs could not bring a concealed handgun into the building, but unlicensed non-felonious Joe Blow could. I think even without the MPA Joe Blow would carry a handgun directly from his car to his hotel room, spend the night in his "premises under his control," then in the morning take it straight back out to his car. So why couldn't a CHL'er bring in a handgun under the same "authorities" as Joe Blow?

I think HB308 would solve this handily.

ELB wrote:

The Annoyed Man wrote:...
I'm sure I could think of other scenarios, but the general question is: is it ever legally defensible for a CHL holder to claim exemption from CHL limits in certain situations where the CHL would actually be more limiting than not having one?

I hope my question is making sense.....

I think your question makes sense, but I don't know the answer. I brought up your "condominium" scenario when there was a discussion about having firearms in a hotel room. If all a hotel does is put up a 30.06 sign, then CHLs could not bring a concealed handgun into the building, but unlicensed non-felonious Joe Blow could. I think even without the MPA Joe Blow would carry a handgun directly from his car to his hotel room, spend the night in his "premises under his control," then in the morning take it straight back out to his car. So why couldn't a CHL'er bring in a handgun under the same "authorities" as Joe Blow?

I think HB308 would solve this handily.

The first search return I looked at for HB 308 threw me for a loop. It was the one from the 83rd Legistalture about whether school districts could say Merry Christmas etc. Found the correct one and your reference makes much better sense to me now!!!

Handgun in car - CHL left at home:
As you noted TAM, one does not need a CHL to have a handgun in their car. Therefore, leaving the CHL at home is not a problem in terms of "unlawfully carrying a weapon."

Unlike Tex. Penal Code §30.06 that applies only when a CHL is carrying a handgun under the authority of their CHL, Tex. Gov't Code §411.205 requires all CHLs to show their CHL as well as their driver's license anytime they are asked by a peace officer (or magistrate) for identification. This provision is not limited to doing so only when you are carrying under the authority of your CHL. In theory, this would apply in your motor vehicle, home, property under your control, etc.

I have heard the argument that passage of HB1815 (Motorist Protection Act) in 2007 results in a presumptive repeal of §411.205 to the extent a CHL is in their motor vehicle. Unfortunately, I disagree with this position albeit reluctantly so. I say this because this apparent conflict has existed since SB60 passed in 1995, because one has never needed a CHL to have/carry a handgun on their own property. Therefore, we can't say that 2007 brought about a legal status or conflict that did not exist prior to 9/1/07.

The better argument is that §411.205 has never applied to a situation where a CHL was not carrying under the authority of their CHL. Prosecutors will counter by arguing that if this is what the Legislature wanted, then they would either 1) have added the phrase "carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, . . ." to §411.205, or 2) not put that language in Tex. Penal Code §30.06.

Condos with 30.06 signs:
Now this is a great law school question! There are two separate situations, one involving a resident and one involving a non-resident and the answers are different.

Condo resident or owner - There was a very recent decision by the Texas Court of Criminal Appeals holding that the common areas of a condominium project belongs to every unit owner, thus they can carry a handgun without a CHL. This case involved an owner carrying a handgun openly. (Chiarini v. State, Sept. 2014.) Therefore, the management company cannot prohibit an owner from carrying a handgun, regardless of the owner's status as a CHL holder or the type of signs posted.

Non-owner visitor to condo - A non-resident visiting the condo would have to comply with the TPC §30.06 sign, if they are a CHL. Since they are not carrying under the authority of their CHL when they are in their car, there is no violation, but they cannot carry their handgun outside their car. (It is an open question whether a §30.06 sign gives notice under TPC §30.05. More on that below.)

If the visitor is not a CHL, then they cannot carry their handgun outside their car and claim that they are "directly en route to a motor vehicle . . ." Although not stated, it is presumed that one is going to or from a place where it is legal for them to have a handgun "on or about their person." Without a CHL, a person cannot carry a handgun in/on property that is not their property or property under their control. A friend or relative cannot give another person permission to violate Texas law. Therefore, a LEO would not have to specify if the person arrested violated Texas law by having the handgun in a friend's or relative's home v. violating the law while carrying the handgun to or from the condo. The prosecutor would likely pick the former since that's quite clear.

Notice per TPC §30.05 v. TPC §30.06 As we all know, there are specific requirements for giving notice under Tex. Penal Code §30.06, however, the notice requirement under Tex. Penal Code §30.05 is not as specific. Any sign not meeting the statutory requirements of §30.06 is does not provide effective notice to a CHL. However, there is no caselaw of which I'm aware dealing with whether a 30.06 sign gives notice under §30.05. It can be argued that it does not because §30.06 expressly states that "A license holder commits an offense if the license holder . . ." as opposed to someone who does not possess a CHL. Further, §30.06 also requires that the CHL be carrying under the authority of their license, in order the the prohibitions found in §30.06 to apply.

The opposing argument is that all TPC §30.05 requires is that the firearms holder "had notice that the entry was forbidden[;]" and that the "no guns" message is delivered by a §30.06 sign. My personal and professional opinion is that a §30.06 sign does not give notice under §30.05, but I may well be wrong.

Chas.

Thus endeth this thread.

Charles L. Cotton wrote:Handgun in car - CHL left at home:
As you noted TAM, one does not need a CHL to have a handgun in their car. Therefore, leaving the CHL at home is not a problem in terms of "unlawfully carrying a weapon."

Unlike Tex. Penal Code §30.06 that applies only when a CHL is carrying a handgun under the authority of their CHL, Tex. Gov't Code §411.205 requires all CHLs to show their CHL as well as their driver's license anytime they are asked by a peace officer (or magistrate) for identification. This provision is not limited to doing so only when you are carrying under the authority of your CHL. In theory, this would apply in your motor vehicle, home, property under your control, etc.

I have heard the argument that passage of HB1815 (Motorist Protection Act) in 2007 results in a presumptive repeal of §411.205 to the extent a CHL is in their motor vehicle. Unfortunately, I disagree with this position albeit reluctantly so. I say this because this apparent conflict has existed since SB60 passed in 1995, because one has never needed a CHL to have/carry a handgun on their own property. Therefore, we can't say that 2007 brought about a legal status or conflict that did not exist prior to 9/1/07.

The better argument is that §411.205 has never applied to a situation where a CHL was not carrying under the authority of their CHL. Prosecutors will counter by arguing that if this is what the Legislature wanted, then they would either 1) have added the phrase "carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, . . ." to §411.205, or 2) not put that language in Tex. Penal Code §30.06.

Condos with 30.06 signs:
Now this is a great law school question! There are two separate situations, one involving a resident and one involving a non-resident and the answers are different.

Condo resident or owner - There was a very recent decision by the Texas Court of Criminal Appeals holding that the common areas of a condominium project belongs to every unit owner, thus they can carry a handgun without a CHL. This case involved an owner carrying a handgun openly. (Chiarini v. State, Sept. 2014.) Therefore, the management company cannot prohibit an owner from carrying a handgun, regardless of the owner's status as a CHL holder or the type of signs posted.

Non-owner visitor to condo - A non-resident visiting the condo would have to comply with the TPC §30.06 sign, if they are a CHL. Since they are not carrying under the authority of their CHL when they are in their car, there is no violation, but they cannot carry their handgun outside their car. (It is an open question whether a §30.06 sign gives notice under TPC §30.05. More on that below.)

If the visitor is not a CHL, then they cannot carry their handgun outside their car and claim that they are "directly en route to a motor vehicle . . ." Although not stated, it is presumed that one is going to or from a place where it is legal for them to have a handgun "on or about their person." Without a CHL, a person cannot carry a handgun in/on property that is not their property or property under their control. A friend or relative cannot give another person permission to violate Texas law. Therefore, a LEO would not have to specify if the person arrested violated Texas law by having the handgun in a friend's or relative's home v. violating the law while carrying the handgun to or from the condo. The prosecutor would likely pick the former since that's quite clear.

Notice per TPC §30.05 v. TPC §30.06 As we all know, there are specific requirements for giving notice under Tex. Penal Code §30.06, however, the notice requirement under Tex. Penal Code §30.05 is not as specific. Any sign not meeting the statutory requirements of §30.06 is does not provide effective notice to a CHL. However, there is no caselaw of which I'm aware dealing with whether a 30.06 sign gives notice under §30.05. It can be argued that it does not because §30.06 expressly states that "A license holder commits an offense if the license holder . . ." as opposed to someone who does not possess a CHL. Further, §30.06 also requires that the CHL be carrying under the authority of their license, in order the the prohibitions found in §30.06 to apply.

The opposing argument is that all TPC §30.05 requires is that the firearms holder "had notice that the entry was forbidden[;]" and that the "no guns" message is delivered by a §30.06 sign. My personal and professional opinion is that a §30.06 sign does not give notice under §30.05, but I may well be wrong.

Chas.

I love these kind of questions because it forces me to CAREFULLY re-read the statutes. When reading 30.06 AND reading what Charles said, Texas case law implies that all owners of the complex are OWNERS. So the owner would have no problem open or concealed carrying in the common areas. What if a "owner" gave a non-owner CHL holder permission to carry concealed on the property. Would that trump the 30.06 sign.

PC §30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED
HANDGUN. (a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411,
Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was
forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and
failed to depart.
(b) For purposes of this section, a person receives notice if the owner of the
property or someone with apparent authority to act for the owner provides notice
to the person by oral or written communication.
(c) In this section:
(1) “Entry” has the meaning assigned by Section 30.05(b).
(2) “License holder” has the meaning assigned by Section 46.035(f).
(3) “Written communication” means:
(A) a card or other document on which is written language identical
to the following: “Pursuant to Section 30.06, Penal Code (trespass by
holder of license to carry a concealed handgun), a person licensed under
Subchapter H, Chapter 411, Government Code (concealed handgun
law), may not enter this property with a concealed handgun”; or
(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English
and Spanish;
(ii) appears in contrasting colors with block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner clearly visible to the public.
(d) An offense under this section is a Class A misdemeanor.
(e) It is an exception to the application of this section that the

I don't think a property owner can give a non-owner visitor permission to open carry or disregard a valid 30.06 sign. One can't give another permission to break a law.

howdy wrote:

Charles L. Cotton wrote:Handgun in car - CHL left at home:
As you noted TAM, one does not need a CHL to have a handgun in their car. Therefore, leaving the CHL at home is not a problem in terms of "unlawfully carrying a weapon."

Unlike Tex. Penal Code §30.06 that applies only when a CHL is carrying a handgun under the authority of their CHL, Tex. Gov't Code §411.205 requires all CHLs to show their CHL as well as their driver's license anytime they are asked by a peace officer (or magistrate) for identification. This provision is not limited to doing so only when you are carrying under the authority of your CHL. In theory, this would apply in your motor vehicle, home, property under your control, etc.

I have heard the argument that passage of HB1815 (Motorist Protection Act) in 2007 results in a presumptive repeal of §411.205 to the extent a CHL is in their motor vehicle. Unfortunately, I disagree with this position albeit reluctantly so. I say this because this apparent conflict has existed since SB60 passed in 1995, because one has never needed a CHL to have/carry a handgun on their own property. Therefore, we can't say that 2007 brought about a legal status or conflict that did not exist prior to 9/1/07.

The better argument is that §411.205 has never applied to a situation where a CHL was not carrying under the authority of their CHL. Prosecutors will counter by arguing that if this is what the Legislature wanted, then they would either 1) have added the phrase "carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, . . ." to §411.205, or 2) not put that language in Tex. Penal Code §30.06.

Condos with 30.06 signs:
Now this is a great law school question! There are two separate situations, one involving a resident and one involving a non-resident and the answers are different.

Condo resident or owner - There was a very recent decision by the Texas Court of Criminal Appeals holding that the common areas of a condominium project belongs to every unit owner, thus they can carry a handgun without a CHL. This case involved an owner carrying a handgun openly. (Chiarini v. State, Sept. 2014.) Therefore, the management company cannot prohibit an owner from carrying a handgun, regardless of the owner's status as a CHL holder or the type of signs posted.

Non-owner visitor to condo - A non-resident visiting the condo would have to comply with the TPC §30.06 sign, if they are a CHL. Since they are not carrying under the authority of their CHL when they are in their car, there is no violation, but they cannot carry their handgun outside their car. (It is an open question whether a §30.06 sign gives notice under TPC §30.05. More on that below.)

If the visitor is not a CHL, then they cannot carry their handgun outside their car and claim that they are "directly en route to a motor vehicle . . ." Although not stated, it is presumed that one is going to or from a place where it is legal for them to have a handgun "on or about their person." Without a CHL, a person cannot carry a handgun in/on property that is not their property or property under their control. A friend or relative cannot give another person permission to violate Texas law. Therefore, a LEO would not have to specify if the person arrested violated Texas law by having the handgun in a friend's or relative's home v. violating the law while carrying the handgun to or from the condo. The prosecutor would likely pick the former since that's quite clear.

Notice per TPC §30.05 v. TPC §30.06 As we all know, there are specific requirements for giving notice under Tex. Penal Code §30.06, however, the notice requirement under Tex. Penal Code §30.05 is not as specific. Any sign not meeting the statutory requirements of §30.06 is does not provide effective notice to a CHL. However, there is no caselaw of which I'm aware dealing with whether a 30.06 sign gives notice under §30.05. It can be argued that it does not because §30.06 expressly states that "A license holder commits an offense if the license holder . . ." as opposed to someone who does not possess a CHL. Further, §30.06 also requires that the CHL be carrying under the authority of their license, in order the the prohibitions found in §30.06 to apply.

The opposing argument is that all TPC §30.05 requires is that the firearms holder "had notice that the entry was forbidden[;]" and that the "no guns" message is delivered by a §30.06 sign. My personal and professional opinion is that a §30.06 sign does not give notice under §30.05, but I may well be wrong.

Chas.

I love these kind of questions because it forces me to CAREFULLY re-read the statutes. When reading 30.06 AND reading what Charles said, Texas case law implies that all owners of the complex are OWNERS. So the owner would have no problem open or concealed carrying in the common areas. What if a "owner" gave a non-owner CHL holder permission to carry concealed on the property. Would that trump the 30.06 sign.

PC §30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED
HANDGUN. (a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411,
Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was
forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and
failed to depart.
(b) For purposes of this section, a person receives notice if the owner of the
property or someone with apparent authority to act for the owner provides notice
to the person by oral or written communication.
(c) In this section:
(1) “Entry” has the meaning assigned by Section 30.05(b).
(2) “License holder” has the meaning assigned by Section 46.035(f).
(3) “Written communication” means:
(A) a card or other document on which is written language identical
to the following: “Pursuant to Section 30.06, Penal Code (trespass by
holder of license to carry a concealed handgun), a person licensed under
Subchapter H, Chapter 411, Government Code (concealed handgun
law), may not enter this property with a concealed handgun”; or
(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English
and Spanish;
(ii) appears in contrasting colors with block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner clearly visible to the public.
(d) An offense under this section is a Class A misdemeanor.
(e) It is an exception to the application of this section that the

Here's another good law school question. The answer is probably no.

The question in Chiarini was whether the defendant was an owner of the common areas of the property as contemplated in Tex. Penal Code §46.02, not whether the defendant could control those common areas. In order to allow a non-owner to carry past a valid 30.06 sign, one must not merely be a fractional owner, but must also be able to control the property. No single owner of a condo has the authority to exclude others from the common areas, so it's unlikely that a court would find that they have control sufficient to satisfy §30.06. What makes this a good law school question is the fact that all condo owners may have the authority to tell non-owners to leave the property, especially if they are loitering, damaging property, causing a nuisance, etc. Does this level of control satisfy §30.06? I don't know, but probably not.

Chas.

I have several new wrinkles in my brain. Not sure if they're permanent pressed at my age though.

As a CHL holder, is there EVER any situation in which you may lawfully claim that you are carrying under authority other than the authority conveyed by your CHL; OR.... does your CHL always trump other applicable law like MPA?

I think we're complicating this one too much by bringing in examples involving trespass, control of property/premises, and other areas where you NEED the authority of your CHL. So let me give my $0.02.

YES. You can claim that you are carrying under authority of other than your CHL any time you do not require it's authority for your behavior to be lawful. A few examples:

- You can open carry in your home, and not be charged with 46.035 intentional display, because you don't need CHL to legally carry in your own home.
- You can concealed carry in your own home while intoxicated, even if you you have a CHL (though probably not a good idea).
- A Peace Officer can open carry, even if he has a CHL.
- A Peace Officer can carry in a 51% establishment even if he has a CHL.
- A Peace Officer can carry past a 30.06 sign or any other NO GUNS (30.05) sign, on or off duty, even if he also has a CHL.

- You can drive your car onto a parking lot posted 30.06 while concealed carrying (but not exit car with a gun). That's because MPA give you authority to carry in your car, and 30.06 only applies to carrying under CHL. It would be pretty silly if a non-CHL could carry onto a 30.06 posted lot under MPA, but not a CHL.
- And if you HAVE a CHL, you can carry past a 30.05 AND 30.06 notice under MPA. 30.06 doesn't apply to CHL not carrying under it, and 30.05 can't be used if you HAVE a CHL, even if you're not carrying under it (check the statute , it's clear.)

- The list goes on. You can open carry at the range (sporting activity), even if you have a CHL.
- You can carry in a 51% location that you own or are in control of, as long as you are not employed primarily for security.

ScottDLS wrote: - You can carry in a 51% location that you own or are in control of, as long as you are not employed primarily for security.

What if you ARE employed primarily for security?

AdioSS wrote:

ScottDLS wrote: - You can carry in a 51% location that you own or are in control of, as long as you are not employed primarily for security.

What if you ARE employed primarily for security?

Then you are not allowed to carry anyway REGARDLESS of business type under authority of your CHL. You must be licensed as an armed security guard to carry where you are employed as security.

Jumping Frog wrote:

AdioSS wrote:

ScottDLS wrote: - You can carry in a 51% location that you own or are in control of, as long as you are not employed primarily for security.

What if you ARE employed primarily for security?

Then you are not allowed to carry anyway REGARDLESS of business type under authority of your CHL. You must be licensed as an armed security guard to carry where you are employed as security.

Which also means wearing a uniform and open carry. IIRC, the only concealed carry/plain clothes security license is for PPO which means you have to be assigned to protect an individual. Someone will correct me shortly if I'm mistaken.

jmra wrote:

Jumping Frog wrote:

AdioSS wrote:

ScottDLS wrote: - You can carry in a 51% location that you own or are in control of, as long as you are not employed primarily for security.

What if you ARE employed primarily for security?

Then you are not allowed to carry anyway REGARDLESS of business type under authority of your CHL. You must be licensed as an armed security guard to carry where you are employed as security.

Which also means wearing a uniform and open carry. IIRC, the only concealed carry/plain clothes security license is for PPO which means you have to be assigned to protect an individual. Someone will correct me shortly if I'm mistaken.

No correction required. You are correct.