Carry Question

[G.A. Heath]

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

(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;

(2) is traveling;

(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence or motor vehicle, if the weapon is a type commonly used in the activity;

(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person's duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment and is wearing the officer's uniform and carrying the officer's weapon in plain view;

(5) acts as a personal protection officer and carries the person's security officer commission and personal protection officer authorization, if the person:

(A) is engaged in the performance of the person's duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment; and

(B) is either:

(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's weapon in plain view; or

(ii) not wearing the uniform of a security officer and carrying the officer's weapon in a concealed manner;

(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or

(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:

(A) on the immediate premises where the activity is conducted; or

(B) en route between those premises and the person's residence and is carrying the weapon unloaded.

TPC 46.15(b)(6) basically says if you have your valid license and your handgun of the category specified on the license then Texas Penal Code 46.02 does not apply to you. The MPA, as pointed out by sjfcontrol, is in 46.02(a-1). So if the licensee's electronic record shows NSA and is carrying SA then MPA is applicable if they are in their vehicle. If they are carrying a revolver then MPA does not apply, but they are covered by their CHL.

[kjolly]

I believe I would contact DPS and get this sorted. Best to err on the side of caution.

[zero4o3]

The MPA does not apply to CHL holders.

Where does it say this in the statutes?

I was wondering the same thing.

Me too. Even worse, I think this guy is an instructor.

Yes I am an instructor and like everyone I can make a mistake. What I meant to say if you have a CHL you are carrying under the CHL you can't pick and choose. Now, like I said I may be wrong, so I have contacted DPS for clarification. I WILL post the reply regardless if it proves me wrong or right.

let us know what you find, I imagine that if you were carrying a weapon that met the requirments of your CHL you would be hard pressed to convince anyone you where carrying under the MPA but I dont imagine carrying a weapon your not licesnsed for under your CHL to be a problem in your car because of the MPA

[ScottDLS]

The way to look at this is to ask yourself, "What would I be charged with, or what crime am I committing, by carrying a SA in my car with only a NSA license?".

There is no PC 46.035 violation for carrying a SA with a NSA license...even if there was I could make an argument for why it didn't apply, but that's not necessary .

Having a CHL is a PC 46.15(b)(6) non-applicability (technically a defense to prosecution) to Unlawful Carrying of a Weapon PC 46.02. Since PC 46.02 specifically exempts car carry, there is no crime to charge the SA carrier with.

There is a provision for suspending the license of someone carrying a SA with a NSA license under the authority of CHL, but I think you can argue that MPA is not carrying under the authority of CHL, because you don't need the 46.15(b)(6) defense to prosecution to carry in your car.

[MoJo]

Here's the answer from DPS.



Mr. Jones,

I talked to our legal department, and they said that the CHL holder will be held to the CHL laws first, and could be in violation by having the SA when licensed only as a NSA. It was relayed to me that if the person is considering having a SA, to go ahead and get that license for that type of weapon. I would probably refer back to the phrase ‘being held to a higher standard’ when you do have a CHL. It would also relayed that 46.02 could be used as a defense, however, it is then up to the judge and jury. If you have any other questions, let me know. I will be looking into ‘this’ issue further.





Sgt. Stuart Bamsch

Department Of Public Safety

Tactical Training Center - Firearms

(254) XXX-XXXX







From: Morris
Sent: Thursday, April 28, 2011 6:36 PM
To: Bamsch, Stuart
Subject: CHL or MPA



Sgt Bamsch,



If a person has a CHL can they claim they are carrying a handgun under the motorist protection act. I am under the impression the MPA is to allow non CHLs to carry in their autos. The question came up when someone asked if you had a NSA license and was carrying an SA firearm to tell the officer they were carrying under the MPA.



Will you please clarify this?



Thank You,



Graves Jones

[RoyGBiv]

If you qualified NA, your license should say NA.... I would notify DPS and have it changed.

If you qualify NA, and your license says SA, and some day you decide to carry SA and have an armed "SA encounter", you will surely be disadvantaged in court if your qualifications show up in the records anywhere as NA. That would be my primary concern.

see and I think that what the licesnes says is all that matters, if you qualified SA and your licesnse came in and was not listed SA, you wouldnt be able to carry your semi auto legaly even though you qualified with a semi auto until your license was corrected.

moraly I would probably notify them

So if you accidentally shoot me with your SA, my lawyer is surely (because I'm going to make sure he does) check your license and qualifications thoroughly.... Eventually, we will find that you qualified with a revolver but shot me with a SA... That won't be a settlement you can afford to pay me in one lump sum.

Just an example...