Question regarding open carry

[045ACP]

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:
(1) on the person's own premises or premises under the person's control; or..

Our neighborhood is in unincorporated Austin, and our LE is Wilco. The county agreed to maintain the streets as is customary after the neighborhood was completed; no where in that agreement nor separately, was there a conveyance of title to the street/sidewalk system. These are owned by the HOA, a non-profit corporation, of which all homeowners are members. All common areas, including our streets are jointly owned by al the members, i.e. homeowners. Nothing in this paragraph is conjecture, it is all fact.

My question is whether in this situation open carry would be permitted according to law.

Thanks

[RX8er]

Are you asking about OC on your own property, or the ability to walk your streets open carry?

I am no expert and smarter ones may have a different answer....
On you own property, you are fine all day and night to OC
On the streets in your neighborhood, you cannot. You don't own them, nor do you control them. The HOA as a collective group owns and controls them if I read your post right.

[bayouhazard]

If my cousin owns Apple stock, I don't think that allows her to carry a handgun in Apple stores without a license, but it would be an interesting legal argument to make.

If you're not the one risking prison time.

[stevie_d_64]

Boy, would I try my best to NOT allow an HOA, members or the elected board know I was carrying a gun for any reason...

I've seen so many instances of those hoyty-toyty busy bodies do outlandish things to its members for a variety of reasons...

Yes, you have every right to carry openly on your property, but what difference does it make to carry (in an area) 5-6 feet across a conventional property line where those very same hoplophobes (and you know they are infested in these groups) an opportunity to bust yer chops, even though you may be right in doing so...

Don't get me wrong, if I was close to selling and moving out of such an area, I might skirt the edge a bit, see who whines...I love that kinda stuff...

But like the "Annoyed" and I tout from time to time, We need to be ambassadors for the Second Amendment, not so much its protagonists...There is a time when it might be necessary, but I do not believe this is one of them...Stay concealed and stay safe...

There are better ways to show your support for this issue...Staying out of trouble, is one of them, even when you are technically in the right...Why cast a negative on yourself when there are so many ninnies out there who will never see the reasoning or justification for your actions...Not a good thing to do so in this anti-gun environment...

Just my opinion...

[SewTexas]

I'm on an HOA....trust me, you don't want to antagonize the HOA....next thing you know someone will be proposing and change in your HOA rules that no one can have guns in view, truly doesn't matter if it's illegal or not....

always remember the rule I taught my kids "don't scare the grandmas or the little kids" keep that in mind, you'll be ok.

[045ACP]

I'm the president of our HOA. But I was leaning towards the explanation provided in an earlier post that suggested you must have exclusive control, not shared control as would be the case with common areas controlled by an HOA.

Incidentally, HOAs cannot create random restrictions; If there is no specific CCR restricting something, it's not restricted nor can a random "policy" be created. It's a great way for an HOA to get sued. Nor can CC&Rs be created in conflict with local, state or federal law. I am aware there are "activist" HOAs that exceed their boundaries, which resulted in a raft of new laws that went into effect beginning 2012. For example, an HOA may no longer foreclose on a home strictly on the basis of accumulated fines.

Thanks!

[RX8er]

I'm the president of our HOA. But I was leaning towards the explanation provided in an earlier post that suggested you must have exclusive control, not shared control as would be the case with common areas controlled by an HOA.

Your'e welcome!!!

Incidentally, HOAs cannot create random restrictions; If there is no specific CCR restricting something, it's not restricted nor can a random "policy" be created. It's a great way for an HOA to get sued. Nor can CC&Rs be created in conflict with local, state or federal law. I am aware there are "activist" HOAs that exceed their boundaries, which resulted in a raft of new laws that went into effect beginning 2012. For example, an HOA may no longer foreclose on a home strictly on the basis of accumulated fines.

You mean my HOA can;t come out and tell all residents that they have to paint their doors pink.

[cbunt1]

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:
(1) on the person's own premises or premises under the person's control; or..

Our neighborhood is in unincorporated Austin, and our LE is Wilco. The county agreed to maintain the streets as is customary after the neighborhood was completed; no where in that agreement nor separately, was there a conveyance of title to the street/sidewalk system. These are owned by the HOA, a non-profit corporation, of which all homeowners are members. All common areas, including our streets are jointly owned by al the members, i.e. homeowners. Nothing in this paragraph is conjecture, it is all fact.

My question is whether in this situation open carry would be permitted according to law.

Thanks

Short answer: No, not according to law, nor according to the intent of the law.

Longer answer: If you've got enough fortitude and legal fees, maybe, if you want to dig for a loophole which would likely be closed in the subsequent legislative session--at least in the current climate.

You pose some interesting arguments. Questioning private property rights of various parties as they intertwine is always interesting. Of course the HOA can decide that everyone in the neighborhood shall paint their front doors pink, and then there comes the civil suits on both sides--both of whom have merit, and the only winners are the lawyers who live in other neighborhoods.

That said, I generally try not to "scare the horses." I carry openly on my own property, but not because I "carry openly" -- just that I may not happen to be wearing the jacket or overshirt I would wear "in public" when I step out to pick up my newspaper or grab something from the truck. If I'm walking down the block, I cover it up. Of course I don't take that same jacket or shirt OFF if I'm already wearing it just to do the same tasks.

I subscribe to the "exclusive control" mindset of "property you control," as a practical day-to-day matter, but I've also spent some time thinking about easments in that context (some have mentioned leased office space in 30.06 posted buildings on other threads, and I'm not sure how that would pan out--but I think Texas easement laws and "landlock" clauses might come into play if someone had enough scratch to win the battle) and I think there may be some teeth there...

Ambassadorship says cover it up in public. Choosing to do otherwise would be an act of activism--not a bad thing if one is willing to go all the way with it, but just "making a statement" doesn't accomplish anything (IMO) because the "right" people won't hear it, and without the subsequent battle, and those who would need to be "forced" to hear it can only be forced by spending lots of time and money. Discretion is often the better part of valor (Again, IMO).

So, while one might be able to make a legal argument on shared control/easement/membership, it's sure a lot cheaper and easier to slip on a jacket and grab the paper :)

Just my opinions...I'm not a lawyer, nor am I a legal scholar...

[SewTexas]

You mean my HOA can;t come out and tell all residents that they have to paint their doors pink.

if enough of the residents want pink doors then yes the rules can be changed to say everyone must have pink doors. that's what I was heading toward in my note.

someone is carrying OC and is making enough people nervous, it will lead, at a minimum to a phone call to the cops and to trouble at the next HOA meeting (have pity on your board members, please) and it could possibly lead to new rules if enough people sign on....although it's difficult to change rules, it can happen if enough want it...

[JP171]

You mean my HOA can;t come out and tell all residents that they have to paint their doors pink.

if enough of the residents want pink doors then yes the rules can be changed to say everyone must have pink doors. that's what I was heading toward in my note.

someone is carrying OC and is making enough people nervous, it will lead, at a minimum to a phone call to the cops and to trouble at the next HOA meeting (have pity on your board members, please) and it could possibly lead to new rules if enough people sign on....although it's difficult to change rules, it can happen if enough want it...

the above ain't never gonna happen. HOA's need to go, have any authority removed and all put in jail. all Deed restrictions that allow an HOA to do anything with property they do not own need to go away and any attempt to "forclose"(read steal) on any property needs to be a criminal act punishable by a minimum of 25 years in a state jail facility with a maximum of life in federal prison for felony white collar theft and theft by conversion

[SewTexas]

You mean my HOA can;t come out and tell all residents that they have to paint their doors pink.

if enough of the residents want pink doors then yes the rules can be changed to say everyone must have pink doors. that's what I was heading toward in my note.

someone is carrying OC and is making enough people nervous, it will lead, at a minimum to a phone call to the cops and to trouble at the next HOA meeting (have pity on your board members, please) and it could possibly lead to new rules if enough people sign on....although it's difficult to change rules, it can happen if enough want it...

the above ain't never gonna happen. HOA's need to go, have any authority removed and all put in jail. all Deed restrictions that allow an HOA to do anything with property they do not own need to go away and any attempt to "forclose"(read steal) on any property needs to be a criminal act punishable by a minimum of 25 years in a state jail facility with a maximum of life in federal prison for felony white collar theft and theft by conversion

excuse me???? where did that come from?

if you decide to move into a neighborhood with an HOA that's your choice. HOA's by law can't foreclose on any property without jumping through a lot of hurdles and I have absolutely no desire to do that amount of work....I have other things to do....pay the dues you agreed to pay when you moved in and won't be foreclosed on. I actually agreed to be on the HOA board because I HATE HOA's, I figured if I was on the board I could help keep it in line, and I have. There is alot of work involved in being on the board in some large neighborhoods, try going to a meeting or two....or maybe don't...no one needs to see your attitude

[JP171]

You mean my HOA can;t come out and tell all residents that they have to paint their doors pink.

if enough of the residents want pink doors then yes the rules can be changed to say everyone must have pink doors. that's what I was heading toward in my note.

someone is carrying OC and is making enough people nervous, it will lead, at a minimum to a phone call to the cops and to trouble at the next HOA meeting (have pity on your board members, please) and it could possibly lead to new rules if enough people sign on....although it's difficult to change rules, it can happen if enough want it...

the above ain't never gonna happen. HOA's need to go, have any authority removed and all put in jail. all Deed restrictions that allow an HOA to do anything with property they do not own need to go away and any attempt to "forclose"(read steal) on any property needs to be a criminal act punishable by a minimum of 25 years in a state jail facility with a maximum of life in federal prison for felony white collar theft and theft by conversion

excuse me???? where did that come from?

if you decide to move into a neighborhood with an HOA that's your choice. HOA's by law can't foreclose on any property without jumping through a lot of hurdles and I have absolutely no desire to do that amount of work....I have other things to do....pay the dues you agreed to pay when you moved in and won't be foreclosed on. I actually agreed to be on the HOA board because I HATE HOA's, I figured if I was on the board I could help keep it in line, and I have. There is alot of work involved in being on the board in some large neighborhoods, try going to a meeting or two....or maybe don't...no one needs to see your attitude

ok your excused, you may step out now. my dislike of HOA's is very simple, its called owners rights period an HOA has not and never will "own" a persons home, should have no right to "forclose"(read steal) anyones property regardless if they pay the dues or not. I have heard of too many horror stories about HOA's and no it does not take alot of hoops for an HOA to sell out from under one the home that they have paid for, it all depends upon what is in the contract. I hate HOA's so much that I refuse to live anywhere there is one. and my attitude is there for all to see , don't like it? oh well. you may be one of the few that is an honorable person that attempts keeping an HOA in line but most are not like that, to them the HOA is their own personal fifedom that they use to steal and resell property for the profit and use the HOA monies to further their own benefit and cause.

[Keith B]

Drop the personal attacks, and get back on the subject, not on HOA's themselves.

[C-dub]

I think it was also proposed by srothstein that even your own front yard can be considered a public place and OC might be prohibited. Not public property, still yours, but a public place. There's s thread around here somewhere where this is discussed in depth.

[JP171]

I think it was also proposed by srothstein that even your own front yard can be considered a public place and OC might be prohibited. Not public property, still yours, but a public place. There's s thread around here somewhere where this is discussed in depth.

I seem to remember this somewhere, I think it depends on the LEO that would respond. It isn't considered a public palce but is considered in the public view if there is no privacy fence and therefore there are prohibited activities(IE nude sunbathing, open containers of adult beverages PI)