TexasCHLforum.com

Quoheleth,

Both of these two statements are common misconceptions. There is no privilege from arrest for the Governor or Lt. Gov. that I can find mention of in either the statutes or the State Constitution. It certainly would go against the Constitution to give the Constable a power that the Sheriff does not have since the Constitution specifies the Sheriff is the chief law enforcement officer for the county. The Constable was originally designed to assist the Sheriff and now is primarily designed to serve the orders of the Justice of the Peace court. This misconception might have started from the constitutional provision that state senators and representatives are privileged from arrest while in session or on the way to or from session. Of course, this privilege does not extend to treason, felonies, or breaches of the peace. The state clause is almost identical to the clause in the US Constitution for federal legislators.

The clause on where a Game Warden might go is actually a twist on their actual powers. They do have a broader search power than other officers, but it is not to enter into any property. They may legally enter into any land where "wild game or fish are known to range or stray" (section 12.103 Parks and Wildlife Code). They may do so to enforce the game laws or for scientific study. But they cannot, for example, use this clause to enter your house thinking you might be illegally processing your poached deer there. But, under the state laws, they do have more "horsepower" than some other peace officers. Of course, this is all academic since the Fourth Amendment has been incorporated and applies to all governmental employees in Texas. Under this, they do need a warrant, or a recognized exception such as probable cause with exigent circumstances. Our Court of Criminal Appeals has even limited law enforcement further than SCOTUS has by taking away the "open fields" exception. Based on that, I am not sure that this section of code will really help anyone with a search.

On a lighter side, I have never asked a Game Warden to assist that way, but I have been asked by them to help on other cases of theirs. In San Antonio, some of the city ordinances make it easier to get the original stop and arrest (such as lock blade knives being illegal) and they used to prefer the city officer to enforce the city ordinance and then call them for the rest.

C-dub,

The second half of the question about where the weapon is only really pertains if you consider the request for the fishing license to be a demand for ID. A person only has to show his CHL when he is carrying on or about his person. So, even if the license was an ID request, if the pistol was not considered on or about his person, he would not have been required to show his CHL. This is why I included the discussion on both haves.

Of course, with your conclusion (and I tend to agree) that the license request was not a demand for ID, the location of the pistol doesn't matter.

There are really two questions to be considered in this case. The first is if being asked for a fishing license constitutes Id and the second is if the pistol is on or about your person.

I am not sure if a fishing license would constitute a demand for ID. I would recommend erring on the side of caution, but the wording of the law implies a DL or DPS issued ID being requested. Note that the warden did not ask for more information when he asked for the fishing license, so he considered it acceptable ID. I honestly do not know the answer to this one and until it gets to a court case, I am not sure it will be adequately answered.

The pistol would be considered on "or about" the person if it was easily accessible to the person. So, if it was sealed in a waterproof bag that could be packed in another container, I do not think it would be considered on or about. If it was just in a plastic bag that was loose enough to shoot through, and the bag was close to the person, it would be. The advice to consider the canoe like your car was good advice. If the gun were in the center console and easily grabbed, it is on or about the person. If it inside a locked glove box, it would not be so considered. this is a judgment call on the part of the officer at the time, the person carrying at the time, and the jury if the carrier and officer disagree. There is no clear defining line in the law.

Given all the haziness in the situation, I think a lawyer would have litte trouble getting the jury to have reasonable doubt on the guilt if it came to a trial. thanks for asking a good question that makes us think about the gray areas of the law.

Oh yeah, the other question posed was if the game warden is a peace officer. The answer to that is yes, game wardens are peace officers, as defined in the list of 36 (or more - I have lost count) types of peace officer contained in Code of Criminal Procedure Chapter 2.12.