Open Carry.Org Targets Texas

[Charles L. Cotton]

I've made my feelings about open-carry known, but I will not oppose their efforts either openly or behind the scenes. However, if they try to amend one of our bills and tack on their stuff, I promise you it will fail! Our bills are very carefully drafted and I'm not going to let anyone screw one up and harm our chances of getting something passed. I hope this is just interview talk and not part of their battle plan. If it really is, they will be making a very big mistake and making an enemy they don't want or need. I'll stay neutral as long as they don't mess with our legislation.

Chas.

As it stands now Charles, some of the most populace counties in the state are instituting what amounts to a complete ban on the possession of handguns in public for a countless number of citizens in good standing.

I'm sorry, but I have no idea what you are talking about. I live in Galveston County and my law office is in Harris County. Could you tell me how and where this is being done?

They've interpreted the CHL laws as allowing indefinite delays in processing background checks, and that's what they are doing. They are delaying indefinitely. The open carry law would eliminate this ban.

There are delays to be sure and this has been discussed in detail in several different threads. However, DPS hasn't interpreted the current CHL laws as allowing indefinite delays. In fact, DPS has admitted in meetings with Chairman Driver and a representative of Governor Perry that they are "out of statute" (meaning they are late) by as much as 100 days, due to a shortage of personnel. DPS has acknowledged they are not complying with the law, they are not interpreting current law as allowing indefinite delays.

If you oppose the open carry law, will you be proposing legislation that will ensure that Texas "shall issue" CHL's without exception in a timely fashion?

I do oppose open-carry for the reasons I've stated, but I don't trade my positions on issues. I have already drafted two bills to streamline the processing of CHL applications and that should help everyone including DPS, CHL instructors and CHL applicants. If it passes, it should help DPS issue licenses much faster. I drafted those bills because changes are needed, not because I oppose open-carry. As I have said, my opposition is my personal belief, not an official position of NRA or TSRA and we do not intend to oppose an open-carry bill. However, if any attempt is made to amend an open-carry provision to one of our bills, you can bet we will kill it. We will not risk losing campus-carry, employee parking lots, or other important bills, because someone decided to tack on open-carry.

Chas.

[Charles L. Cotton]

That's not nit-picking, it's accurate reporting, unlike the article. It really burns me up when open-carry supporters from other states make statements that inadvertent exposure of your handgun in Texas is illegal. At least learn our laws rather than pointing out a non-existent problem. There is a very good reason why the statute only reads "intentionally" fails to conceal, rather than the traditional "intentionally, knowingly, or recklessly."

Chas.

Charles, I know you realize it's not just the wording of the statute but also the interpretation by law enforcement and the courts. Can you offer CHL members here an explanation of how "intentional exposure" is being enforced by all police officers, district attorneys, and judges across the state?

I am only aware of one conviction for violating TPC §46.035(a) and that was in the McDermott case where Mr. McDermott laid his pistol on the dash of his car to scare a lady. It worked, she called the police and he was convicted of intentionally failing to conceal his handgun. Are you aware of any other cases where a CHL was convicted of intentionally failing to conceal? There may be more, I'm just not aware of them and none other than McDermott were reported as recently as about 18 to 24 months ago.

Most penal statutes have a mens rea (mental state) requirement of "intentionally, knowingly, or recklessly" in order to get a conviction. TPC §46.035(a) requires the much tougher standard of "intentionally" failing to conceal. This was not an accident. In fact, the precise reason I gave for this unique mens rea during my testimony on SB60 was to prevent prosecution of a CHL because the wind blew open his/her coat, or because the bottom of their holster was inadvertently exposed when they reached for the top shelf at the supermarket, or for any other inadvertent exposure.

I have never seen a case of inadvertent exposure resulting in an arrest, prosecution or conviction. If I'm mistaken, please show me the case.

Chas.

[HGWC]

I'm sorry, but I have no idea what you are talking about. I live in Galveston County and my law office is in Harris County. Could you tell me how and where this is being done?

I have a letter in my possession where DPS has stated that my CHL application is being delayed indefinitely due to hurricane IKE. As I understand, my application is tied up, indefinitely, in Brazoria and Harris counties on background checks. In my opinion, when you delay a fundamental right indefinitely, you don't have the right. We wouldn't tolerate this on our first amendment rights, and we shouldn't tolerate it on the 2nd.

There are delays to be sure and this has been discussed in detail in several different threads. However, DPS hasn't interpreted the current CHL laws as allowing indefinite delays. In fact, DPS has admitted in meetings with Chairman Driver and a representative of Governor Perry that they are "out of statute" (meaning they are late) by as much as 100 days, due to a shortage of personnel. DPS has acknowledged they are not complying with the law, they are not interpreting current law as allowing indefinite delays.

I have been told personally by the DPS on several occasions that they interpret Gov Code 411.177 as allowing them to delay issuance of CHLs indefinitely waiting on background checks. According to the DPS, the law allows Harris county to delay background checks indefinitely, and all DPS has to do is send a letter stating that fact to be in compliance with 411.177. They are interpreting the law as allowing indefinite delays, hence the letter I and countless others have received stating that my application has been delayed indefinitely.

I have already drafted two bills to streamline the processing of CHL applications and that should help everyone including DPS, CHL instructors and CHL applicants. If it passes, it should help DPS issue licenses much faster.

That's great. I'd like to hear more about this. I want to see an elimination of the student loan and taxes requirement. I want to see an end to the $140 charge plus $100+ for the training, and I want to see an end to the indefinite delays. Until then, I'm going to support any legislation that will eliminate these restrictions on my fundamental rights. I will simultaneously support legislation that eases restrictions on concealed carry.

We will not risk losing campus-carry, employee parking lots, or other important bills, because someone decided to tack on open-carry.
Chas.

I understand your point about not tying the issues together. However, when the most populace counties in the state are delaying all CHLs indefinitely, I don't see why campus carry and employee parking lots are the top priority. Frankly, if I can't step foot outside of my car with a handgun, I don't see much value in taking it out of the house. If I could get a CHL, then, yes, I would like to know I could at least leave it in my employer's parking lot. If my son could get a CHL, I'd like to know he could carry it with him on campus. Only, I can't get a CHL and nothing in the law is going to change that indefinitely. Until then, I'm supporting the open carry law. I encourage everyone else to as well.

[rodbender]

I've made my feelings about open-carry known, but I will not oppose their efforts either openly or behind the scenes. However, if they try to amend one of our bills and tack on their stuff, I promise you it will fail! Our bills are very carefully drafted and I'm not going to let anyone screw one up and harm our chances of getting something passed. I hope this is just interview talk and not part of their battle plan. If it really is, they will be making a very big mistake and making an enemy they don't want or need. I'll stay neutral as long as they don't mess with our legislation.

Chas.

Charles, not to worry. The decision has been made not to amend any other bill. This will be a stand alone bill or a revision of 46.02. Not sure which. We have someone writing it and ready to introduce it. This decision was not because of your threats. Wanted to let you know that you haven't scared anyone, OK? If anyone tries to attach it to another bill, it will have been the decision of the legislator, not us.

[HGWC]

Are you aware of any other cases where a CHL was convicted of intentionally failing to conceal? There may be more, I'm just not aware of them and none other than McDermott were reported as recently as about 18 to 24 months ago.

No, I'm not aware of any. Thanks for this information.

Most penal statutes have a mens rea (mental state) requirement of "intentionally, knowingly, or recklessly" in order to get a conviction. TPC §46.035(a) requires the much tougher standard of "intentionally" failing to conceal. This was not an accident. In fact, the precise reason I gave for this unique mens rea during my testimony on SB60 was to prevent prosecution of a CHL because the wind blew open his/her coat, or because the bottom of their holster was inadvertently exposed when they reached for the top shelf at the supermarket, or for any other inadvertent exposure.

I have never seen a case of inadvertent exposure resulting in an arrest, prosecution or conviction. If I'm mistaken, please show me the case.
Chas.

I would like to know I'm secure from harassment by police officers. I appreciate your explanation here, but the wording still leaves me concerned that there's room for false arrest. I will support any legislation that eliminates this as an infringement of my 2nd amendment rights.

[Charles L. Cotton]

I'm sorry, but I have no idea what you are talking about. I live in Galveston County and my law office is in Harris County. Could you tell me how and where this is being done?

I have a letter in my possession where DPS has stated that my CHL application is being delayed indefinitely due to hurricane IKE. As I understand, my application is tied up, indefinitely, in Brazoria and Harris counties on background checks.

Okay, I misunderstood your comment. I thought you were saying large counties were preventing CHLs from carrying in public places. Ike caused tremendous damage in Galveston so I'm not surprised the portion of the background checks that must be done "on location" were delayed. The Galveston County Courthouse was not operational for many weeks. I don't know about Brazoria County and Harris County wasn't damaged.

There are delays to be sure and this has been discussed in detail in several different threads. However, DPS hasn't interpreted the current CHL laws as allowing indefinite delays. In fact, DPS has admitted in meetings with Chairman Driver and a representative of Governor Perry that they are "out of statute" (meaning they are late) by as much as 100 days, due to a shortage of personnel. DPS has acknowledged they are not complying with the law, they are not interpreting current law as allowing indefinite delays.

I have been told personally by the DPS on several occasions that they interpret Gov Code 411.177 as allowing them to delay issuance of CHLs indefinitely waiting on background checks. According to the DPS, the law allows Harris county to delay background checks indefinitely, and all DPS has to do is send a letter stating that fact to be in compliance with 411.177. They are interpreting the law as allowing indefinite delays, hence the letter I and countless others have received stating that my application has been delayed indefinitely.

Sorry, but I know that not to be DPS's position. I don't know who you talked to, but that's not the law and that is not what DPS contended in a very uncomfortable meeting about their delays. How would you have been in a position to have been told that "on several occasions?"

I have already drafted two bills to streamline the processing of CHL applications and that should help everyone including DPS, CHL instructors and CHL applicants. If it passes, it should help DPS issue licenses much faster.

That's great. I'd like to hear more about this.

Then watch for my Bill Status Report updates.

I want to see an elimination of the student loan and taxes requirement.

I have felt this way for a long time.

I want to see an end to the $140 charge plus $100+ for the training, . . .

It'll never happen, but there is no harm in wanting. For clarity, only the initial license fee is $140 and this is reduced by 50% if you qualify for a fee reduction. Renewals are only $70, unless you qualify for the 50% reduction.

. . . and I want to see an end to the indefinite delays.

There are delays, but again there are no indefinite delays in the context you are using the term. Overstating the problem doesn't help the open-carry cause. It's much like the absurd statement in the article, "As Texans realize how restrictive their rights are . . . there will be an awakening. Get ready for a showdown in Austin come January.". Texas does not allow open-carry, but otherwise Texas law on guns is very liberal. Grossly inaccurate and purely emotional statements like the one quoted will not garner support in Austin.

We will not risk losing campus-carry, employee parking lots, or other important bills, because someone decided to tack on open-carry.
Chas.

I understand your point about not tying the issues together. However, when the most populace counties in the state are delaying all CHLs indefinitely, I don't see why campus carry and employee parking lots are the top priority.

Because 1) I’m far more concerned about preventing a Virginia Tech in Texas than I am people being able to wear their guns in the open; 2) I am far more interested in people not being disarmed going to and from their places of employment; 3) it affects far more people than those in two or three counties for a limited period of time; 4) there are no “indefinite delays” in the context in which you have repeatedly used the term; 5) because unlicensed open-carry isn’t going to pass and we will not let these two bills that are so important to tens of thousands of CHLs die because OpenCarry.org can’t get their own bill introduced and/or doesn't have the horsepower to get it passed.

OpenCarry.org, a Virginia-based organization, decided to take on this project and that's fine. But their bill sponsor problem isn't going to become our problem by way of an ill-advised amendment to an NRA/TSRA bill. That's not being antagonistic to the open-carry bill; it's being protective of our own bills.

Frankly, if I can't step foot outside of my car with a handgun, I don't see much value in taking it out of the house. If I could get a CHL, then, yes, I would like to know I could at least leave it in my employer's parking lot. If my son could get a CHL, I'd like to know he could carry it with him on campus. Only, I can't get a CHL and nothing in the law is going to change that indefinitely. Until then, I'm supporting the open carry law. I encourage everyone else to as well.

Again, I oppose open-carry for the reasons I have stated, but I will not oppose opencarry.org’s bill, so long there is no attempt to saddle any of our bills with that poison-pill. If that attempt is made, I’ll go after it like it is an “assault weapons” ban bill.

I want to note that although I personally oppose open-carry because of the backlash I believe we would face, I still have a link to OpenCarry.org in the links thread here on TexasCHLforum.com. I have read that board and I must say that open-carry supporters are incredibly vicious in their attacks on opponents of open-carry. I went there to invite some of the members to come to TexasCHLforum.com and discuss their views and plans. But when I saw the way they described pro-gun people who disagreed with their position, I decided not to post. As others have noted in another thread, the last thing pro-gun people need now is a divisive fight over open-carry, or any other firearms issue.

Chas.

[bdickens]

I wish these people were more concerned with where they can carry than with how.

[nitrogen]

I wish these people were more concerned with where they can carry than with how.

Million Dollar Quote right here.

[thankGod]

I want to note that although I personally oppose open-carry because of the backlash I believe we would face, I still have a link to OpenCarry.org in the links thread here on TexasCHLforum.com. I have read that board and I must say that open-carry supporters are incredibly vicious in their attacks on opponents of open-carry. I went there to invite some of the members to come to TexasCHLforum.com and discuss their views and plans. But when I saw the way they described pro-gun people who disagreed with their position, I decided not to post. As others have noted in another thread, the last thing pro-gun people need now is a divisive fight over open-carry, or any other firearms issue.

Charles, I am remaining neutral on the issue. However, as it appears to me, you are in a particular position that would allow you to have your input with the 'organizers' of opencarry.org prior to any bill, to ensure that the current laws are not put in harms way.

[Charles L. Cotton]

I've made my feelings about open-carry known, but I will not oppose their efforts either openly or behind the scenes. However, if they try to amend one of our bills and tack on their stuff, I promise you it will fail! Our bills are very carefully drafted and I'm not going to let anyone screw one up and harm our chances of getting something passed. I hope this is just interview talk and not part of their battle plan. If it really is, they will be making a very big mistake and making an enemy they don't want or need. I'll stay neutral as long as they don't mess with our legislation.

Chas.

. . . This decision was not because of your threats. Wanted to let you know that you haven't scared anyone, OK?

I wasn't trying to scare anyone, I was just stating facts. But if anyone thinks we can't protect our bills, then just try to attach open-carry provisions and see what happens.

As for the proposed bill, I've seen it and it is a very big mistake. Unlike the federal congress, the Texas Legislature strictly adheres to the germane rule. That means amendments cannot be made to any bill, unless the amendment is directly related to the subject matter of the bill. The proposed bill goes far far beyond what is necessary to legalize open-carry. By repealing TPC §46.035 and moving those provisions to TPC §46.02, the entire subject matter area of §§46.02 and 46.03 is now fair game for anti-gun amendments. My guess is that the law student in Virginia that wrote the bill didn't understand the procedural significance of that approach. That's one of the dangers in trying to draft legislation for another state. I'm sure he was just trying to draft something that accomplished OpenCarry.org's goal, but I personally would not have opened the door to potential anti-guns amendments. It's no fun having to pull your own bill down because something got added by amendment.

Chas.

[Charles L. Cotton]

I want to note that although I personally oppose open-carry because of the backlash I believe we would face, I still have a link to OpenCarry.org in the links thread here on TexasCHLforum.com. I have read that board and I must say that open-carry supporters are incredibly vicious in their attacks on opponents of open-carry. I went there to invite some of the members to come to TexasCHLforum.com and discuss their views and plans. But when I saw the way they described pro-gun people who disagreed with their position, I decided not to post. As others have noted in another thread, the last thing pro-gun people need now is a divisive fight over open-carry, or any other firearms issue.

Charles, I am remaining neutral on the issue. However, as it appears to me, you are in a particular position that would allow you to have your input with the 'organizers' of opencarry.org prior to any bill, to ensure that the current laws are not put in harms way.

I'm trying desperately to remain neutral too!

As an NRA Board member and TSRA Legislative Committee Vice-Chairman, I can't do that. I could shout from the rooftops that I was doing this in my individual capacity and not as a representative of either of those organizations, but that would fall on deaf ears. And to be perfectly candid, OpenCarry.org wouldn't want my input anyway. They have no patience for anyone who doesn't show 100% support for their position. Just reading their board makes that abundantly clear.

Chas.

[Charles L. Cotton]

That's not nit-picking, it's accurate reporting, unlike the article. It really burns me up when open-carry supporters from other states make statements that inadvertent exposure of your handgun in Texas is illegal. At least learn our laws rather than pointing out a non-existent problem. There is a very good reason why the statute only reads "intentionally" fails to conceal, rather than the traditional "intentionally, knowingly, or recklessly."

Chas.

Charles, I know you realize it's not just the wording of the statute but also the interpretation by law enforcement and the courts. Can you offer CHL members here an explanation of how "intentional exposure" is being enforced by all police officers, district attorneys, and judges across the state?

I am only aware of one conviction for violating TPC §46.035(a) and that was in the McDermott case where Mr. McDermott laid his pistol on the dash of his car to scare a lady. It worked, she called the police and he was convicted of intentionally failing to conceal his handgun. Are you aware of any other cases where a CHL was convicted of intentionally failing to conceal? There may be more, I'm just not aware of them and none other than McDermott were reported as recently as about 18 to 24 months ago.

Most penal statutes have a mens rea (mental state) requirement of "intentionally, knowingly, or recklessly" in order to get a conviction. TPC §46.035(a) requires the much tougher standard of "intentionally" failing to conceal. This was not an accident. In fact, the precise reason I gave for this unique mens rea during my testimony on SB60 was to prevent prosecution of a CHL because the wind blew open his/her coat, or because the bottom of their holster was inadvertently exposed when they reached for the top shelf at the supermarket, or for any other inadvertent exposure.

I have never seen a case of inadvertent exposure resulting in an arrest, prosecution or conviction. If I'm mistaken, please show me the case.

Chas.

I did more research and found a second conviction for violation of TPC §46.035(a) "Intentional Failure to Conceal." Spielman v. State. Like McDermott, Mr. Spielman intentionally put his hand on his pistol in his pocket during a disagreement with two young people over a parking space. He testified he never pulled the pistol out, and two complaining witnesses testified he did. The jury believed the complaining witnesses.

I am attaching copies of both McDermott and Spielman.

Chas.

[Bunkins]

How did they react when they see handguns strapped to an LEO. I also know people that have unreasonable fears of dogs, Clowns, and stuffed animals. I would like to see the folks with unreasonable fears locked up so they could be held nice and safe.

Nervously. I think for a lot of people, at a young age, the gun strapped to the side is what made them "respect" or even fear a LEO. Perhaps I'm wrong, but I dont think I am in most cases..

I can see your point on unreasonable fears... As far as guns go, just picture yourself, you only hear about guns through the media, and you've never handled one in your life...... Don't think you'd be scared to death of them? Just like handling a snake, ask a kid why they fear them, ask yourself why you might fear them.. Getting bit? The poison? Same thing, guns are a instrument that can cause serious injury or death. Both you, me and everyone else on this forum knows that guns dont kill people, but in the wrong hands they are deadly. Everytime you hear about guns in everyday life, in the news paper, in the news, you rarely hear anything positive about them, so the fear of guns is a real fear, unreasonable? Depends on who ya talk to.. A lot of fears are unreasonable like you mentioned, clowns ( ya mean they dont freak ya out just a little? ), stuffed animals... But then you have fear of the dark, fear of dogs, fear of guns.. People fear those things because what they have heard, or because of the unknown.

[CainA]

Charles,

Sounds like the odds are pretty much on the CHL'er's side when it comes to convictions of "intentionally" showing your gun. There are x-amount of CHL holders and out of that many, how many have UNintentionally showed their weapon(probaby quite a few...top shelves at grocery store and such as you mentioned in an earlier post). Sounds almost as if you'd have to not only intentionally show your gun, but almost be stupid about it at the same time, so you'd almost have to add "blatantly" to the penal code to get a conviction, or so it seems.

-Cain

[carlson1]

I personally do not see how you can be AGAINST open carry, concealed carry, or any carry if you are a supporter of the 2nd Admendment. It may just be my demented brain.