sugar land dave wrote:That is one of the better areas of Sugar Land, and Sugar Land has recently been listed as one of America's safest cities as determined by crime statistics. Now if you have to leave Sugar Land and go into Houston to work.......
Great question though! Thanks!
"We just never thought that kind of thing would happen around here..."
I know Sugar Land is safe. I have been in SL since 1973. (Dulles c/o '89).
But... If I knew when I was going to be in an accident, I'd selectively put on my seatbelt. Same thing here. ;)
(Preaching to the choir I know, but just felt I needed to say it).
As Hirundo has posted, this is a really bad area of the law to get into, and a really good question. There are two different definitions of premises in the laws that apply. If the sidewalk or patio is owned by the bar, it is considered part of the licensed premises. But, the law on unlawfully carrying there has a different definition of premises.
All of the case law on this has always deferred to the ABC definition. But I am not aware of any case law since the advent of 46.035. The previous case law was on the upgrade to 46.02 and showed that the parking lots and such were part of the licensed premise to make carrying there a felony. This makes the current question a very gray area of the law and I have no way to predict which way the courts would finally rule on it.
I am guessing there would be such confusion over it that many DA's might decline to prosecute when confronted with the case and shown the defense. But some are very anti-gun so they might try to, and even pro-gun DA's might want to, make the case law and clarify things. You could almost see it as a chance for them to leave their mark on the law, so to speak.
srothstein wrote:I am guessing there would be such confusion over it that many DA's might decline to prosecute when confronted with the case and shown the defense. But some are very anti-gun so they might try to, and even pro-gun DA's might want to, make the case law and clarify things. You could almost see it as a chance for them to leave their mark on the law, so to speak.
I think it's pretty reasonable to predict that a case involving a CHL wouldn't go to trial--since we're exempt from §46.02 the charge would be under §46.035, and it is very clear for the purpose of that section that only a building or portion of a building is considered "premises."
The more unclear question is whether someone carrying without a permit would be subject to the felony enhancement in §46.02(c) if they weren't in the building.
Last edited by hirundo82 on Wed May 25, 2011 9:40 pm, edited 1 time in total.
"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Barack Obama, 12/20/2007
srothstein wrote:As Hirundo has posted, this is a really bad area of the law to get into, and a really good question. There are two different definitions of premises in the laws that apply. If the sidewalk or patio is owned by the bar, it is considered part of the licensed premises. But, the law on unlawfully carrying there has a different definition of premises.
All of the case law on this has always deferred to the ABC definition. But I am not aware of any case law since the advent of 46.035. The previous case law was on the upgrade to 46.02 and showed that the parking lots and such were part of the licensed premise to make carrying there a felony. This makes the current question a very gray area of the law and I have no way to predict which way the courts would finally rule on it.
I am guessing there would be such confusion over it that many DA's might decline to prosecute when confronted with the case and shown the defense. But some are very anti-gun so they might try to, and even pro-gun DA's might want to, make the case law and clarify things. You could almost see it as a chance for them to leave their mark on the law, so to speak.
I think you'd have a pretty good defense to 46.02 in the PARKING LOT w/ CHL, due to CHL providing a Defense to ALL of 46.02. Like you, I am more concerned about 46.035...because while statutory defintion of premises there specifically excludes parking lots, it doesn't say ONLY buildings. What if the patio has an awning or pergola, or even fence (which I believe they have to have (fence) per TABC) ? Then it might be considered part of the premises even under 46.035?
Not sure I'd want to be the proverbial "test case", especially for a felony.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"
ScottDLS wrote:I think you'd have a pretty good defense to 46.02 in the PARKING LOT w/ CHL, due to CHL providing a Defense to ALL of 46.02. Like you, I am more concerned about 46.035...because while statutory defintion of premises there specifically excludes parking lots, it doesn't say ONLY buildings. What if the patio has an awning or pergola, or even fence (which I believe they have to have (fence) per TABC) ? Then it might be considered part of the premises even under 46.035?
I'm of the opinion that the definition of premises in §46.035 limits it to buildings (and portions thereof) only.
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (f) In this section:
(3) "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.
The first sentence defines what premises are. In my mind, it doesn't leave any room for including anywhere else in the definition.
Contrast that with the second sentence. The areas listed are specifically not included in the definition of premises, but it is not an exhaustive list--other areas may be excluded from the definition of premises as well.
"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Barack Obama, 12/20/2007
ScottDLS wrote:I think you'd have a pretty good defense to 46.02 in the PARKING LOT w/ CHL, due to CHL providing a Defense to ALL of 46.02. Like you, I am more concerned about 46.035...because while statutory defintion of premises there specifically excludes parking lots, it doesn't say ONLY buildings. What if the patio has an awning or pergola, or even fence (which I believe they have to have (fence) per TABC) ? Then it might be considered part of the premises even under 46.035?
I'm of the opinion that the definition of premises in §46.035 limits it to buildings (and portions thereof) only.
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (f) In this section:
(3) "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.
The first sentence defines what premises are. In my mind, it doesn't leave any room for including anywhere else in the definition.
Contrast that with the second sentence. The areas listed are specifically not included in the definition of premises, but it is not an exhaustive list--other areas may be excluded from the definition of premises as well.
I tend to agree, however a voice in my head (sounding suspiciously like Bill Clinton) keeps saying.... "What is the definition of building?"
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"
I perfer erroring on the side of caution but I'm very conservative. Also have found it to be a pretty misarable experience when your friends are intoxicated and you are not. Realisticaly the odds of something happening that requires a SD reaction are astronomicaly slim so leave the gun at home and enjoy a drink with your friends.
I'm not much for drinking but my answer might be predicated that I'm on some long term medication where I cannot drink.
I suppose we can debate ad nauseum the CHL equivalent of how many angels can dance on the head of a pin. But I personally believe that if this were put to the test, you would be hard-pressed to find a grand jury who would NOT consider as part of the business's premises a fenced patio that is contiguous with a a 51% location, where the furniture belongs to the business, where the business's employees serve beverages, and where you are obligated to pay to that business for any goods received. It just doesn't pass the "reasonable person" test for me.
9/21/09 - Received license
"Nothing is so dangerous as an idea when it is the only one you have." - Emile Chartier
RiverCity.45 wrote:I suppose we can debate ad nauseum the CHL equivalent of how many angels can dance on the head of a pin. But I personally believe that if this were put to the test, you would be hard-pressed to find a grand jury who would NOT consider as part of the business's premises a fenced patio that is contiguous with a a 51% location, where the furniture belongs to the business, where the business's employees serve beverages, and where you are obligated to pay to that business for any goods received. It just doesn't pass the "reasonable person" test for me.
I agree... my statement is about a part of the patio that is not fenced 360*. One section has no fence and is open to a public walkway. Much like some spots on the riverwalk in San Antonio.
I should take a picture and post, so we can see it. It's also not contiguous to the location. The wait staff has to walk across the public sidewalk to get to this part of the patio.
Imagine this: some folks I know are sitting there having a beer. I can be walking down that sidewalk, peer to my side and see my buddies. I can stop and talk to them for a good 15 minutes of catching up, while armed. I never have to walk into the place or even breach any fence to do that.
