2 men accused of having guns in cars outside club

[Keith B]

Some people think there's a federal law prohibiting CHL in banks.

There are people who believe they have been abducted by aliens too. What does that have to do with this?

[JJVP]

Can someone please tell us the specific TABC law that applies? Or admit they can't and stop with the smoke and mirrors.

From the TABC Alcoholic Beverage Code.

Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

http://www.tabc.state.tx.us/laws/code/8 ... Titles.pdf" onclick="window.open(this.href);return false;

[Dadtodabone]

So any Texas CHL who patronizes a stand alone TABC 51% licensee, utilizes the parking of same, disarms before entering the building and secures the firearm in his/hers vehicle is most likely still committing a felony? I knew I quit going to libation stations for a good reason, I just didn't know how good.

[srothstein]

Thanks for posting the law for me, JJVP. I was looking it up and then got to your post.

This is the inherent problem with the CHL law and the Alcoholic Beverage Code. They each define the term premises differently. I think, and from what I was reading I think Charles agrees, that if the person is charged under 46.035, that the PC definition would apply, but I am not 100% sure of this. What I am sure of is that if an unlicensed person had a pistol in a bar, then the ABC definition would apply.

To understand this, you need to go back in time to before the CHL. It was illegal to carry a gun at all. If the gun was on a licensed premise it was a felony instead of a misdemeanor. There was no PC definition of what a licensed premise was, the ABC definition was applied by the police and the courts. Lots of cases were upgraded to felonies for having guns in parking lots of bars. This means there is extensive case law for this though I don't have any citations handy now.

Now we add CHL, but it only applies to carry on your person. We add 46.035 and get a definition of premises that is different from what has been. But people with CHLs are generally law abiding, so I don't know of any cases where this matter has come up. And the same applies once the MPA is passed. DPS only shows five CHL convictions for unlawfully carrying on an alcoholic premises since 1996. It is entirely possible that these are all for carrying inside.

So, my best theory is that a CHL would not be charged for unlawfully carrying on a licensed premise for the parking lot because of the conflict in the laws. But it is entirely possible that an anti-gun DA would try to argue that the prior use of the ABC definition of what is a premises, and its continuing use by the licensing authority, would overrule the PC definition for that one section. This would be especially true if he had a case against a non-chl for carrying in a parking lot recently that he could use as a precedent case for that court (not necessarily a legal precedent in the manner of an appellate ruling, but he could remind a judge of the judge's ruling in another recent case).

And in the case of an unlicensed person carrying solely under the MPA in his car, there is no conflict. The PC definition only applies in 46.035 and 46.03, and the charge would be filed under 46.02. All of the old case law would still apply. If he violates the MPA by leaving the weapon in plain sight, and he was in the parking lot of a licensed premise, he would get charged with the felony. And yes, the licensed place includes bars, restaurants, most gas stations/convenience stores, and most grocery stores. The license does not have to be for on premise consumption.

[K.Mooneyham]

Thanks for posting the law for me, JJVP. I was looking it up and then got to your post.

This is the inherent problem with the CHL law and the Alcoholic Beverage Code. They each define the term premises differently. I think, and from what I was reading I think Charles agrees, that if the person is charged under 46.035, that the PC definition would apply, but I am not 100% sure of this. What I am sure of is that if an unlicensed person had a pistol in a bar, then the ABC definition would apply.

To understand this, you need to go back in time to before the CHL. It was illegal to carry a gun at all. If the gun was on a licensed premise it was a felony instead of a misdemeanor. There was no PC definition of what a licensed premise was, the ABC definition was applied by the police and the courts. Lots of cases were upgraded to felonies for having guns in parking lots of bars. This means there is extensive case law for this though I don't have any citations handy now.

Now we add CHL, but it only applies to carry on your person. We add 46.035 and get a definition of premises that is different from what has been. But people with CHLs are generally law abiding, so I don't know of any cases where this matter has come up. And the same applies once the MPA is passed. DPS only shows five CHL convictions for unlawfully carrying on an alcoholic premises since 1996. It is entirely possible that these are all for carrying inside.

So, my best theory is that a CHL would not be charged for unlawfully carrying on a licensed premise for the parking lot because of the conflict in the laws. But it is entirely possible that an anti-gun DA would try to argue that the prior use of the ABC definition of what is a premises, and its continuing use by the licensing authority, would overrule the PC definition for that one section. This would be especially true if he had a case against a non-chl for carrying in a parking lot recently that he could use as a precedent case for that court (not necessarily a legal precedent in the manner of an appellate ruling, but he could remind a judge of the judge's ruling in another recent case).

And in the case of an unlicensed person carrying solely under the MPA in his car, there is no conflict. The PC definition only applies in 46.035 and 46.03, and the charge would be filed under 46.02. All of the old case law would still apply. If he violates the MPA by leaving the weapon in plain sight, and he was in the parking lot of a licensed premise, he would get charged with the felony. And yes, the licensed place includes bars, restaurants, most gas stations/convenience stores, and most grocery stores. The license does not have to be for on premise consumption.

So, is the part I highlighted true due to the laws behind the BLUE signs? "The unlicensed possession..." found at https://www.tabc.state.tx.us/publicatio ... eapons.pdf

[dogflight]

Seeing no case law or legal references to support the notion, I don't think it is accurate to assert that a parking lot can be made off limits to legal concealed carry by a CHL holder because a TABC definition of premises might be used to override the Penal Code definition. That said, while discussing the 51% rule in my future classes, I suppose it would be a good idea to suggest a healthy caution about the potential of becoming snagged within a morass of legal vagaries surrounding the issue.

Good conversation.

[apostate]

Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

http://www.tabc.state.tx.us/laws/code/8 ... Titles.pdf" onclick="window.open(this.href);return false;

That describes the parking lot of many HEB supermarkets. Are you folks saying it's a felony if someone carrying under MPA (unlicensed possession) stops at HEB for groceries on the way home from work, even if they leave the handgun in their vehicle?

[rotor]

How would one even know what the legal boundry of a parking lot is. I could see a fenced parking lot with a 51% sign at the entry of the parking lot as defining a cutoff point but let's be rational, you park your car, walk up to a bar and there is a 51% sign on the door. You stop, turn around and head back to your car. Are you saying that that is illegal? You remove your gun and stash it in the glove compartment, not in view of anyone. Is that illegal? How would you know you were in violation until you actually saw the 51% sign and then proceeded to enter the "premises" if you were concealed. Is the act of walking through a parking lot concealed and not knowing that the lot is part of a bar with a 51% sign illegal? Not all bars are 51%. It is amazing that more of us are not in jail now with some of these vague interpretations.

[gigag04]

Found 2 cookies of crack and seized over $3k all due to contacting a guy standing by a car with a revolver in plain view. He tried to run (> 400lbs) and pitch the crack.

Keep yer guns hidden....

[JJVP]

Thanks for posting the law for me, JJVP. I was looking it up and then got to your post.

This is the inherent problem with the CHL law and the Alcoholic Beverage Code. They each define the term premises differently. I think, and from what I was reading I think Charles agrees, that if the person is charged under 46.035, that the PC definition would apply, but I am not 100% sure of this. What I am sure of is that if an unlicensed person had a pistol in a bar, then the ABC definition would apply.

To understand this, you need to go back in time to before the CHL. It was illegal to carry a gun at all. If the gun was on a licensed premise it was a felony instead of a misdemeanor. There was no PC definition of what a licensed premise was, the ABC definition was applied by the police and the courts. Lots of cases were upgraded to felonies for having guns in parking lots of bars. This means there is extensive case law for this though I don't have any citations handy now.

Now we add CHL, but it only applies to carry on your person. We add 46.035 and get a definition of premises that is different from what has been. But people with CHLs are generally law abiding, so I don't know of any cases where this matter has come up. And the same applies once the MPA is passed. DPS only shows five CHL convictions for unlawfully carrying on an alcoholic premises since 1996. It is entirely possible that these are all for carrying inside.

So, my best theory is that a CHL would not be charged for unlawfully carrying on a licensed premise for the parking lot because of the conflict in the laws. But it is entirely possible that an anti-gun DA would try to argue that the prior use of the ABC definition of what is a premises, and its continuing use by the licensing authority, would overrule the PC definition for that one section. This would be especially true if he had a case against a non-chl for carrying in a parking lot recently that he could use as a precedent case for that court (not necessarily a legal precedent in the manner of an appellate ruling, but he could remind a judge of the judge's ruling in another recent case).

And in the case of an unlicensed person carrying solely under the MPA in his car, there is no conflict. The PC definition only applies in 46.035 and 46.03, and the charge would be filed under 46.02. All of the old case law would still apply. If he violates the MPA by leaving the weapon in plain sight, and he was in the parking lot of a licensed premise, he would get charged with the felony. And yes, the licensed place includes bars, restaurants, most gas stations/convenience stores, and most grocery stores. The license does not have to be for on premise consumption.

I see more conflicts within the two laws. First, 46.035(b)(1) says it is illegal on the "premises" , the definition of premises being that in 46.035 which does not include parking lots.

Second, section (k) says that it is a defense to prosecution if you are not given effective notice under Section 411.204, Government Code. Since the 51% sign is INSIDE the building, in the parking lot, IMNLHO, you have not been given effective notice.

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.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code


(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code

[JJVP]

One other thing. Section 61.11 still mentions the old CHL law 4413(29ee), although the correct code of 411 is used in other parts of the TABC Regulations.

Sec. 61.11. WARNING SIGN REQUIRED. (a) Each holder of a license who is not otherwise required to display a sign under Section 31, Article 4413(29ee), Revised Statutes, shall display in a prominent place on the license holder’s premises a sign giving notice that it is unlawful for a person to carry a weapon on the premises unless the weapon is a concealed handgun of the same category the person is licensed to carry under Article 4413(29ee), Revised Statutes

[dinolord]

wow...idiots.

[jester]

Found 2 cookies of crack and seized over $3k all due to contacting a guy standing by a car with a revolver in plain view. He tried to run (> 400lbs) and pitch the crack.

Keep yer guns hidden....

Keep yer crack hidden too. Even if you're a plumber.

[Jumping Frog]

Found 2 cookies of crack and seized over $3k all due to contacting a guy standing by a car with a revolver in plain view. He tried to run (> 400lbs) and pitch the crack.

Keep yer guns hidden....

Keeping your guns hidden isn't sufficient nor the answer.

As I read srothstein's commentary, anyone with a gun in their car under MPA who needs to defend his/herself in an TABC-licensed HEB parking lot (thereby making it known they have a firearm) can be charged with a felony!

Wow! Simply stunning!

[srothstein]

Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

http://www.tabc.state.tx.us/laws/code/8 ... Titles.pdf" onclick="window.open(this.href);return false;

That describes the parking lot of many HEB supermarkets. Are you folks saying it's a felony if someone carrying under MPA (unlicensed possession) stops at HEB for groceries on the way home from work, even if they leave the handgun in their vehicle?

No, people carrying in their car are not breaking the law if they meet the rules specified in section 46.02. It is not a violation of the unlawfully carrying section to have a gun in the car under your control or owned by you if the gun is concealed and you are not committing other violations, member of a street gang, etc.

What I was pointing out was that if the gun is in plain sight, it is now a violation of 46.02, and if it is a licensed premise, it is upgraded to a felony. So, if a person without a CHL goes to H.E.B. with a gun in their car and it stays concealed, they are good to go. But if they get out of the car with the gun still on their person, or if it is visible while in the car, then they are committing a felony. Fortunately, if he gets the gun to defend himself, as was suggested in another post, he is committing the felony but has a defense of necessity covering him.

Yes, we still have a lot of quirks in our gun laws in Texas. I hope we are all pushing for constitutional carry as an eventual goal (not an immediate one) to avoid these kind of quirks. It will take us a while, but it is the end goal I keep pushing for.