Gun Owners know that the legislation surrounding firearms is rarely ever consistent. The laws and regulations involving firearms changes reguarly. As a consequence, the line between lawful and unlawful carry has fallen into the grey area. In September of this year, several bills went into effect.
That’s a lot of Bills!
Wow! I have received quite a few questions over the past few months from lawyers, weapons dealers, friends, and strangers regarding the new gun laws the Texas Legislature passed and went into effect just over a month ago. I will attempt to explain some of the changes, cover the laws now, and how different ones affect individuals. This is by no means an exhaustive treatise. In September of this year, several bills went into effect including HB1927, the "Constitutional Carry" or "Permitless" Carry Bill, HB 957 affecting Silencers, HB1069 adding defenses for certain classes of individuals, HB2112 and SB550 dealing holsters, HB1920 affecting areas, HB1407 changing the offense of display of a weapon (which was superseded by HB1927 repealed by 1927 and therefore moot and was duplicated by HB1927 in another section). So, as usual, the Legislature made some drastic changes all over the place, and HB1927 changed roughly 30 different code sections in 10 different areas. It was far-reaching. So, let's cover quite a bit of it.
Effective September 1, 2021, the bulk of HB927 affected Texas Penal Code, hereinafter referred to as TPC, Chapter 46, and amended it to allow certain persons to carry a handgun, under certain potential restrictions, on their person without a license. This change was designed to treat handguns somewhat similarly to long guns – which traditionally had fewer restrictions. Generally, permit-less carry means if a person is not otherwise prohibited from owning a firearm, they should be able to carry a handgun openly or concealed without fear they'll be prosecuted for exercising a Constitutional right. So, what all did the wise legislators do?
Since we are discussing changes in Licenses to Carry (LTC) and the new permit-less carrying of handguns, we need to know what a handgun is. Handguns are defined in both state and federal law. The Definitions are identical. A handgun is defined in §46.01(5) as "any firearm that is designed, made, or adapted to be fired with one hand." As before, the new law allows specific individuals to carry a handgun on their person in one of two ways, concealed or open. Concealed carry means hidden, and no part of the handgun is visible in regular use. §46.035 was repealed and parts are now included in §46.03. According to §46.03 and §46.02(a-1), if carried openly, a handgun must be in a holster. As an aside, there is growing popularity with pistols made from an AR15 receiver, which is legal, but it is still governed by the most recent changes. If one does have an AR pistol, the carrying restrictions in a motor vehicle or on one's person still apply regarding concealment and open carry.
So, who qualifies to carry a handgun without an LTC? If someone wants to carry a handgun using the authority granted them in Texas' new permit-less carry law (HB1927), they must be at least 21, and cannot be a prohibited person under State and federal law from possessing/carrying a firearm, and they can't be prohibited from possessing a firearm in a public place in Texas.
As to the second requirement, it is very important to understand who is a “prohibited person” when it comes to possessing a firearm in a public place in Texas. The following groups are prohibited under State and federal law from possessing a weapon:
Remember when I said more on that later…Well, HB1927 also made changes to TPC §46.02 wherein the Unlawful Carrying of a Weapon (Handgun) in subsection (a) for carrying in a place other than one's home, vehicle, or boat is now limited to a person younger than 21 years of age OR to someone of any age who has been convicted of one of the following offenses;
But, since the charge requires a "conviction" and is not explicitly defined, it requires a "final conviction," meaning paid a fine or time. Deferred doesn't count. And, just like the DWI superfines, probation doesn't count as a “final conviction” either. Also, the five-year period is based on the commission date of the previous offense, not the conviction date.
Ok, now we have the reasoning and some definitions, let's move to the changes. As stated earlier, a person openly carrying a handgun MUST keep the handgun holstered. There is no holster definition in the code, and HB1927, HB2112, and SB550 removed the "shoulder or belt" modifiers from the code altogether. So, now those magnetic under dash mounts I previously told everyone not to use may now work as a holster in Texas. A person should never draw their weapon from their holster unless acting in one of the justified defenses listed in Chapter 9 of the TPC or another lawful activity. A person cannot flash or "brandish" a weapon to alarm or threaten someone as the person could be charged with Disorderly or Deadly Conduct.
Under Texas' new gun law, there is no requirement a person carrying a handgun be a Texas resident.
Where can someone who can legally carry a handgun, well, carry it? Generally speaking, a person can carry a handgun in non-prohibited, public areas or a public place without "effective" notice given.
What are some of the forboden locations for handguns where notice is not needed for prohibition to carry? There are several listed in the TPC. There need not be a sign or any markers, and the possession of a firearm is specifically disallowed…except for specific individuals like law enforcement.
Oh, and now that all the restrictions in the now repealed TPC §46.035 (UCW by LTC) have been moved to TPC§46.03 (Places Weapons Prohibited), the restrictions are now APPLICABLE to long guns where they previously were not. HUGE CHANGE
What is notice? Persons who wish to prevent licensed or permit-less individuals from carrying a handgun on their premises must issue warnings. The ultimate warning is a verbal one issued by the owner or someone with authority to deny the entrance. There are now three different signs an owner can display. These all carry the same punishment… If a person enters the property and is found out and told to leave, it is a Class C offense if they do. If they don't, the offense is a Class A under the following:
There is another sign most have seen…It is the big red "51%" sign prominently displayed at bars and other places making 51% or more of their income from location consumable alcohol sales. This last one is a third-degree felony (remember it is a prohibited place under TPC §46.03(7)), and only an LTC holder could use the defense if they did not receive effective notice (meaning no signage was posted) …the defense is not applicable for a permit-less carrier.
Building on notice, HB1927 gave us TCP §46.15(m), a defense to carry a handgun on premises or other property where prohibited under §46.03 if the person leaves when they personally receive notice from the owner or someone acting with apparent authority for the owner. However, HB1927 also provided section (n) of the same code where the defense is not applicable if clear, proper signage is posted at EACH entrance.
That's quite a lot to take in. But, I will give you a little more from some other bills and their changes elsewhere in the code.
Well, there are most of the changes in HB1927 and more from other bills. It is apparent the Legislature was throwing things together and hoping it would all sort itself out. Keep a close eye out when you see a handgun charge, as the law probably changed September 1. If you have any questions, call or email me.