TexasCHLforum.com

I still wipe down my holsters before trying them the first time

Keith B wrote:I am going to say no. Reason being is the statute states 'not reasonably discernible by the average person'. If you have that hanging on your belt, it may NOT have a gun in it, but if John Q. Public sees it and determines you are carrying a gun and calls, then you will not have been properly concealing as they identified it as a gun, cause it looked like a holster, and you will have a VERY hard time explaining to the Judge that is was concealed properly since it looks like a gun holster.

Keith B; You are certainly one of the most knowledgeable on the forum, so I respect greatly what you have to say. Using your reasoning above, one could argue all kinds of reasons a non-CHL could not be charged, where a CHL could be charged with Failure to Conceal. Under PC46.02(a)(2) John Q. Public can walk out of a gun store, Bass Pro, Cabela's, etc. to their car with a big black case that says "GLOCK" on it, and be protected, even if police are called by some frantic anti type, and there is a gun in the case. However PC46.035(a) prohibits a CHL from failure to conceal under any circumstances. The big black case that says "GLOCK" is on or about his person, and it's not concealed if you use the holster analogy above. Does PC46.02 trump PC46.035? I don't know. Or, am I reading the statutes wrong?

G26ster wrote:

Keith B wrote:I am going to say no. Reason being is the statute states 'not reasonably discernible by the average person'. If you have that hanging on your belt, it may NOT have a gun in it, but if John Q. Public sees it and determines you are carrying a gun and calls, then you will not have been properly concealing as they identified it as a gun, cause it looked like a holster, and you will have a VERY hard time explaining to the Judge that is was concealed properly since it looks like a gun holster.

Keith B; You are certainly one of the most knowledgeable on the forum, so I respect greatly what you have to say. Using your reasoning above, one could argue all kinds of reasons a non-CHL could not be charged, where a CHL could be charged with Failure to Conceal. Under PC46.02(a)(2) John Q. Public can walk out of a gun store, Bass Pro, Cabela's, etc. to their car with a big black case that says "GLOCK" on it, and be protected, even if police are called by some frantic anti type, and there is a gun in the case. However PC46.035(a) prohibits a CHL from failure to conceal under any circumstances. The big black case that says "GLOCK" is on or about his person, and it's not concealed if you use the holster analogy above. Does PC46.02 trump PC46.035? I don't know. Or, am I reading the statutes wrong?

Well, thanks for the vote of confidence, but just remember, these just are MY opinions. These and $6.50 will buy you a Grande at Starbucks.

It really boils down to the fact we have the extra responsibility of concealing placed on us by 46.035 and 411.171(3) and can lose our license that way. See:

http://www.statutes.legis.state.tx.us/d" onclick="window.open(this.href);return false; ... /PE.46.htm

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

and http://www.statutes.legis.state.tx.us/D" onclick="window.open(this.href);return false; ... GV.411.htm

(3) "Concealed handgun" means a handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.

So, if someone reasonably determines you have not concealed, calls the cops, they arrest you and the Judge decides that you were not concealing, then you will lose your license.

46.02 applies to us, but it spells out that the handgun is in plain view. That means you can see the gun, not that you can tell that it is a gun under a towel on the car seat, or that there is a gun is in a box or inside an enclosed holster. We have that extra part of 46.035 and 411.117(3)that a non-licensee doesn't have. So, 46.02 doesn't really trump 46.035 for us if they want to push the issue and try to charge you and get the Judge to buy in on their view IMO.

Hope that makes sense as I interpret it. Again, JMO and IANAL.

I was handed a Kahr PM40 and a pocket holster to try on at the Cabela's in Buda without a problem. I even asked the guy behind the counter if I was breaking all kinds of rules and he said, "Don't worry about it". Of course I checked and double checked to make sure it was clear. I've personally never had a bad Cabela's experience. There's no doubt in my mind that they would gladly let you stick your laser on their gun and try it out (if it's easy to attach / detach. I doubt they'd let you drill holes or anything.)

G26ster wrote: Keith B; You are certainly one of the most knowledgeable on the forum, so I respect greatly what you have to say. Using your reasoning above, one could argue all kinds of reasons a non-CHL could not be charged, where a CHL could be charged with Failure to Conceal. Under PC46.02(a)(2) John Q. Public can walk out of a gun store, Bass Pro, Cabela's, etc. to their car with a big black case that says "GLOCK" on it, and be protected, even if police are called by some frantic anti type, and there is a gun in the case. However PC46.035(a) prohibits a CHL from failure to conceal under any circumstances. The big black case that says "GLOCK" is on or about his person, and it's not concealed if you use the holster analogy above. Does PC46.02 trump PC46.035? I don't know. Or, am I reading the statutes wrong?

There is no exception to 46.02 that applies to a non-CHL buyer leaving the store with a purchased handgun. So concealed or not, it is against the law to carry a handgun on or about your person unless you have a CHL or fit one of the other 46.15 exceptions (sporting activity, hunting, traveling, etc.). Incidentally, if you are a CHL holder, you can still open carry to/from/while hunting, target shooting (sporting activity), or on your own property, because you are not "carrying under the authority of your CHL".

ScottDLS wrote:

G26ster wrote:
There is no exception to 46.02 that applies to a non-CHL buyer leaving the store with a purchased handgun. So concealed or not, it is against the law to carry a handgun on or about your person unless you have a CHL or fit one of the other 46.15 exceptions (sporting activity, hunting, traveling, etc.).

If I am leaving the store as a non CHL and going directly to my car in the parking lot, according to PC46.02(a)(2) I am legal.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

So my point was, the non CHL is legal under PC46.02(a)(2), but a CHL is in violation of PC46.035(a) unless PC46.02 trumps PC46.035.

G26ster wrote:

ScottDLS wrote:

G26ster wrote:
There is no exception to 46.02 that applies to a non-CHL buyer leaving the store with a purchased handgun. So concealed or not, it is against the law to carry a handgun on or about your person unless you have a CHL or fit one of the other 46.15 exceptions (sporting activity, hunting, traveling, etc.).

If I am leaving the store as a non CHL and going directly to my car in the parking lot, according to PC46.02(a)(2) I am legal.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

So my point was, the non CHL is legal under PC46.02(a)(2), but a CHL is in violation of PC46.035(a) unless PC46.02 trumps PC46.035.

You know what...You are right. When 46.02 was changed allowing car carry, it removed the requirement for some other 46.15 exception (like hunting) to carry in or to your car. I think you could argue that you are not carrying under the authority of your CHL if you are going directly to/from your car, so just like hunting, 46.035 should not apply.

This thread is really getting strange.Are some of you guys saying that if some "Non CHL" guy buys a new handgun at Academy and is carrying it in the
box it comes in out to the parking lot he could get in trouble for having a concealed handgun.I just don't see any law enforcement being that anal...
at least in the great State of Texas.And some of you see a problem with the CHL holder having his in the box?

texjames wrote:This thread is really getting strange.Are some of you guys saying that if some "Non CHL" guy buys a new handgun at Academy and is carrying it in the
box it comes in out to the parking lot he could get in trouble for having a concealed handgun.I just don't see any law enforcement being that anal...
at least in the great State of Texas.And some of you see a problem with the CHL holder having his in the box?

No, you got it backwards. I'm saying the non-CHL is legal because PC46.02 says it's OK if you are going directly to your car. But, PC46.035 says a CHL may never intentionally expose his weapon in public. I was using the analogy of the GLOCK box being no different than the holster pictured by Marksiwel, as it just as well "implies" there may be a gun inside. According to Keith B. he could be arrested for failure to conceal with that holster. So. So a non CHL is OK walking to his car, but a CHL may not be unless the exemption under 46.02 about directly enroute to your car TRUMPS the failure to conceal in 46.035 which only applies to CHLs.

How about putting the gun box in a store bag and carry it out that way?

A Bass Pro Shop (or Academy or Gander Mountain or . . .) bag could contain darn near anything.

ScottDLS wrote: There is no exception to 46.02 that applies to a non-CHL buyer leaving the store with a purchased handgun. So concealed or not, it is against the law to carry a handgun on or about your person unless you have a CHL or fit one of the other 46.15 exceptions (sporting activity, hunting, traveling, etc.). Incidentally, if you are a CHL holder, you can still open carry to/from/while hunting, target shooting (sporting activity), or on your own property, because you are not "carrying under the authority of your CHL".

I haven't read the list of exceptions to 46.02 lately, but if you can't leave a gun store possessing a purchased handgun, you can't come to own one legally, and I know you can legally come to own a handgun in Texas with or without a CHL, before or after the CHL laws were passed in 1995. There's plenty of case law, right along with all the traveling case law, supporting our right to transport handguns legally for limited purposes. For example, you can find a handgun in the road and legally possess it. Someone can give you a gun and you can possess it on your way home. You can transport a handgun to a gun smith for repair. You can also buy a handgun and transport it home. Although IANAL, I've read plenty of case law where the courts have found that 46.02 does not trump the state constitution. I suspect transporting a handgun to a gun shop would be found legal, and I haven't seen anywhere in these cases or in statutes where possessing a handgun for these purposes is restricted to concealed carry.

As far as 46.035, keep in mind that statute says when carrying under the authority of the concealed handgun license. When you're carrying a handgun under an exception to 46.02, I suspect you're carrying under the authority of your constitutional right. Only if you're carrying in violation of 46.02 do you need any additional authority. In my opinion, carrying a handgun to a gun shop is legal, and neither 46.02 or 46.35 apply.

LarryH wrote:How about putting the gun box in a store bag and carry it out that way?

A Bass Pro Shop (or Academy or Gander Mountain or . . .) bag could contain darn near anything.

That's the point. A non CHL doesn't have to put the holster or the Glock box in a bag as he/she is exempted under 46.02. The CHL apparently does (or might have to) according to Keith B. (for the holster) to keep from being nabbed for Failure to Conceal under 46.035. If so, why should a CHL have to jump through hoops a non CHL doesn't if the weapon is not his/her carry weapon, but one he/she just bought, had repaired, or fired at Bass Pro range, etc.?

I'm NOT opposed to having to follow strict laws as a CHL, nor am looking for special treatment. I just want to be sure that I have the same rights as everyone else. I do not want to lose these rights just because I have a CHL. If 46.02 trumps 46.035, that's fine, but I don't think we have a legal opinion on that (yet).

Now all of this is hypothetical, and my recent posts have been strictly related to Keith B.'s answer to the picture of the holster in this thread.

G26ster wrote:

LarryH wrote:How about putting the gun box in a store bag and carry it out that way?

A Bass Pro Shop (or Academy or Gander Mountain or . . .) bag could contain darn near anything.

That's the point. A non CHL doesn't have to put the holster or the Glock box in a bag as he/she is exempted under 46.02. The CHL apparently does (or might have to) according to Keith B. (for the holster) to keep from being nabbed for Failure to Conceal under 46.035. If so, why should a CHL have to jump through hoops a non CHL doesn't if the weapon is not his/her carry weapon, but one he/she just bought, had repaired, or fired at Bass Pro range, etc.?

I'm NOT opposed to having to follow strict laws as a CHL, nor am looking for special treatment. I just want to be sure that I have the same rights as everyone else. I do not want to lose these rights just because I have a CHL. If 46.02 trumps 46.035, that's fine, but I don't think we have a legal opinion on that (yet).

Now all of this is hypothetical, and my recent posts have been strictly related to Keith B.'s answer to the picture of the holster in this thread.

My argument is that 46.035 trumps itself. It states:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER, (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

If a non-CHL can carry to their car, then a CHL doing the same thing is NOT "carrying under the authority" of their CHL. So they don't have the 46.035 duty to conceal.

For example, if you are open carrying in your own house and you have a CHL, are you violating 46.035? I argue that you are not. Same if you're (handgun) hunting. Or carrying a gun at the range.

It all goes back to what I said in my earlier posts about discovering what is, and isn't cool when carrying. They're (Cabela's, Academy, etc.) not going to let you carry the gun in, or out of the store in a bag, in a box, or with a fox regardless of your credentials. Unfortunately laws (essentially) don't matter to those ignorant to them. The shop keepers don't generally know what the laws are and neither do LEO; they just know policy. So when in Academy, or Cabela's follow their store policy and no one gets arrested. Trust me, quoting the law to a LEO, or an Academy employee isn't going to help.

We all know here that if you were to be foolish enough to ask a LEO, store owner, or meter maid if it's legal to carry in a place that you know is, you will invariably be told "NO."

Embalmo

ScottDLS wrote:[
My argument is that 46.035 trumps itself. It states:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER, (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

If a non-CHL can carry to their car, then a CHL doing the same thing is NOT "carrying under the authority" of their CHL. So they don't have the 46.035 duty to conceal.

.

I agree with you on that. That is why I replied to the statement from Keith B. when he said, "...then you will not have been properly concealing as they identified it as a gun, cause it looked like a holster, and you will have a VERY hard time explaining to the Judge that is was concealed properly since it looks like a gun holster."

I just substituted a gun case with GLOCK on it for the holster. It looks like a gun box, just like the holster looks like a gun holster. To me if I was carrying a gun in that holster directly enroute to my car from a gun shop, Bass Pro, Cabella's, etc. I should be covered under 46.02, and the judge shouldn't need further explanation, and I shouldn't have been arrested in the first place because, as you said I'm not carrying under the authority of my CHL.. So 46.035 should not apply.