These are changes to Edition 7, copyright 2010.
These updates bring it up to date.
HB 25
Adds watercraft and boating to the Motorist Protection Act
AN ACT
relating to the carrying of certain weapons in a watercraft.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 46.02, Penal Code, is amended by amending Subsections (a) and (a-1) and adding Subsection (a-3) to read as follows:
(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:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-3) For purposes of this section, "watercraft" means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
SECTION 2. Section 46.15(b), Penal Code, is amended to read as follows:
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person's duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment and is wearing the officer's uniform and carrying the officer's weapon in plain view;
(5) acts as a personal protection officer and carries the person's security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person's duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer's weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person's residence and is carrying the weapon unloaded.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2011.
HB 1080
Exempts honorably discharged veterans, active-duty U.S. armed forces, and the Texas Army National Guard, the Texas Air National Guard, or the Texas State Guard from the live-fire portion of certain hunter-education courses.
AN ACT
relating to an exemption for active duty personnel and certain veterans from the requirement to complete the live firing portion of a hunter education program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 62.014, Parks and Wildlife Code, is amended by adding Subsection (n) to read as follows:
(n) The following persons are exempt from any requirement to complete the live firing portion of a hunter education course under this section:
(1) an honorably discharged veteran of the United States armed forces; or
(2) a person who is on active duty as a member of the United States military forces, the Texas Army National Guard, the Texas Air National Guard, or the Texas State Guard.
SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.
HB 2127
Prevents certain highly populated cities from enacting their own rules concerning shooting of most regular firearms, as defined.
AN ACT
relating to the municipal regulation of the discharge of firearms and certain other weapons in certain counties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 229, Local Government Code, is amended by adding Section 229.004 to read as follows:
Sec. 229.004. REGULATION OF DISCHARGE OF WEAPON BY CERTAIN MUNICIPALITIES. (a) This section applies only to a municipality located in a county in which the majority of the population of two or more municipalities with a population of 300,000 or more are located.
(b) Notwithstanding Section 229.002, a municipality may not apply a regulation relating to the discharge of firearms or other weapons in the extraterritorial jurisdiction of the municipality or in an area annexed by the municipality on or before September 1, 1981, if the firearm or other weapon is:
(1) a shotgun, air rifle or pistol, BB gun, or bow and arrow discharged:
(A) on a tract of land of 100 acres or more and more than 150 feet from a residence or occupied building located on another property; and
(B) in a manner not reasonably expected to cause a projectile to cross the boundary of the tract; or
(2) a center fire or rim fire rifle or pistol of any caliber discharged:
(A) on a tract of land of 100 acres or more and more than 300 feet from a residence or occupied building located on another property; and
(B) in a manner not reasonably expected to cause a projectile to cross the boundary of the tract.
SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.
HB 2560
Protects foster parents with CHLs while transporting the foster child in a vehicle.
AN ACT
relating to transporting a foster child in a vehicle where a handgun is in the possession of a foster parent licensed to carry a concealed handgun.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 42.042, Human Resources Code, is amended by adding Subsection (e-2) to read as follows:
(e-2) The department may not prohibit the foster parent of a child who resides in the foster family's home from transporting the child in a vehicle where a handgun is present if the handgun is in the possession and control of the foster parent and the foster parent is licensed to carry the handgun under Subchapter H, Chapter 411, Government Code.
SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.
Notes about the major laws enacted:
I encountered a good bit of resistance to the analysis that follows, but some experts agreed there are some potential problems in the language as enacted. In the interest of completeness I lay those out here for your review. The published update for 2011 assumes that the intent of the bills is the effect of the laws, and the possible loopholes identified below are minor technical glitches that could be corrected later, or left alone and hopefully of no consequence, as some experts believe.
By the way -- the biggest deal no one is shouting about -- Texas passed preemption over all 254 counties!
That usually takes years of hard battle,
and it's gotten barely a whimper of recognition.
It's tucked into the end of the range protection bill.
Congratulations are in order!
And for anyone who is interested, let me suggest that the parking lot bill may have some flaws. At least two bona fide experts referred to it as sloppy drafting, which is almost innevitable when you look at the machinations of pushing the bills through the process. Our update dances around it but these things perhaps need to be addressed.
1. If the new 2011 parking lot law, §52.061, is read to include CHL employees and any other employees who lawfully have a firearm or ammo, what is the need to mention CHLs at all? (There isn't any.) Any employee who can legally possess, regardless of license, is protected, right? (With the narrow chemical-oil-gas exception as defined.) So why even mention CHL?
Here's the problem -- Using normal rules of English grammar, which is the proper way to construe statute, the phrase "who otherwise lawfully possesses a firearm" modifies CHL holders, and so appears to omit the entire rest of the population. The drafters saw the problem, but have since convinced themselves it's OK, and are relying on intent and legislative history to establish meaning (long story there, but evidence does clearly show an intent to protect everyone). Big help that will be if some judge or prosecutor simply reads the statute:
Sec. 52.061. RESTRICTION ON PROHIBITING EMPLOYEE ACCESS TO OR STORAGE OF FIREARM OR AMMUNITION. A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.
This would fix it, removing any ambiguity:
(a) A public or private employer may not prohibit an employee:
(1) who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, or
(2) who otherwise lawfully possesses a firearm, or
(3) who lawfully possesses ammunition
from transporting or storing a firearm or ammunition the employee is authorized by law to possess, in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.
This would fix it too (the red is an addition):
A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, or who otherwise lawfully possesses a firearm...
And the whole thing could be done in plain English without changing intent or meaning, in 21 words instead of 45:
A public or private employer may not prohibit an employee who lawfully possesses a firearm or ammunition from transporting or storing...
I've spoken to a number of people (experts) who read the bill as CHLs only. If a few people see it that way, there will be more, and some will be on the bench.
For good measure, there should be commas after ammunition and after possess.
2. As I read it, shopping center and other public lots are not covered for the public, but would be for the center's employees, correct? Can shopping centers implement bans under this statute? I think yes, but that doesn't appear to have been a target for this bill. So it's just unequal treatment under the law, and something for another day.
3. Presumably, the law intends to protect the employer's employees, but anyone who is an "employee" anywhere would be covered under the present language, right? It could say "their employees" but it does not. So perhaps, anyone who is an employee anywhere could be protected at a shopping center or other public lot that has employees. Recommendation -- don't be the test case.
4. Another biggie: §52.061 and .062(a)(1) and .062(a)(2)(F) in the parking lot language are meticulous about including ammo in the protection, but then 52.062(b) conspicuously omits ammo. This is meaningful. Another rule of construction says that if the legislature says something in one place and omits it in another, the omission is deliberate and meaningful. Hazmat employees can only carry empty guns and not possess ammo, if the law is read as written. Absurd, yes, though other states have such rules, and I did say some experts found the writing was sloppy. Ammo should be added.
This section also uses the construction that unambiguously protects non CHLs (", or who otherwise lawfully possesses"). This is the precise language that it seems to me item 1 above needs, which makes the exposure in item 1 more severe. No rule of construction allows you to read the difference as meaningless, and since the legislature specifies it in this spot, it meant to not do so in the other. It's a small change to make, maybe even get by with a "technical correction" and not have to re-legislate, but the powers that be will need to agree and do it, and it seems to me they're reluctant to see any of this as an issue, despite the evidence. I don't want to pursue it any further, having already been scolded for noticing and bringing it up. Maybe no one will notice and none of this will matter.
5. This is very minor, but can an oil, gas or mineral lease be valid if it is expired? It's not clear to me why "unexpired" is needed, it seems redundant, unless expired leases are somehow valid. Are they? Or just sloppy again -- like all the unnecessarily redundant redundancy in the drafting style. If it isn't redundant, we'll need to know the difference between a valid lease and an unexpired valid lease.
6. Finally, a lawyer friend (not from Texas I might add) points out that the vehicle must be unlocked for a while to get in and out, or pick up passengers, so the protection evaporates briefly (protection only applies to a locked vehicle). And if you ever had to use the firearm, I guess you'd have to do it from within the locked vehicle (though I seem to recall that in Texas legit self defense is protection from ancillary charges, I'll have to look that up).
The problems in 1 and 4 seem to me to require attention.
What do you think?
Post Script:
Charles Cotton, past president of TSRA and a very fine well-experienced lawyer,
believes there is no ambiguity, no need for change, and cites this link to a web forum he moderates as proof: http://www.texaschlforum.com/viewtopic.php?f=110&t=45460
Unfortunately, the proof is not dispositive, and includes a disproof by a writer ("DallasCHL") who is articulate, well reasoned and makes the same "wrong arguments" others make, based on the wording of the statute and even the legislative history, here:
How many people have to get it "wrong" before people will recognize it's at least ambiguous?
Mr. Cotton indicates there are many who don't get it:
"I can't say for sure who was the first person to raise this issue, but based upon timing, it seems that it originated with Shane McCrary a/k/a MR REDNECK with this post on OpenCarry.org It was picked up by others on TexasGunTalk and perhaps other boards, including here on TexasCHLforum."
It was also read the "wrong" way by one of the deep insiders working on the bill, until convinced by others that it was OK, and then it was just go along to get along. My earliest notes show I got it "wrong" in late July, 2011.
When asked, another very fine lawyer, extremely gun savvy and tight with the NRA (but not a Texan), said:
Schools don't teach people to diagram sentences any more, which is why we get unintelligible sentences like these.
The question is whether the comma signifies "or" or "and." Or, put another way, can a person without a license store a gun in the employer's parking lot?
Option 1: A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun …, OR who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition (WHICH) the employee is authorized by law to possess….
Option 2: A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun …, AND who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition (WHICH) the employee is authorized by law to possess….
In my opinion, it should be read as "and," the intention being to require that the person not only have a license, but be otherwise lawfully in possession. So, for example, a person with a license who was carrying a stolen gun would not be authorized to store the stolen gun in the locked car in the parking lot, because he would not be "otherwise lawfully in possession." If the illiterate legislator who wrote this statute had meant "or," then there would have been no need for the first qualification of having a license, because anybody with a license already would have fit within the definition of "lawfully possessing a firearm."
Therefore, an employer may not prohibit and employee who holds a license to carry a concealed handgun, and who otherwise lawfully possesses a firearm or ammunition, from transporting or storing the firearm or ammunition in a locked vehicle in the parking lot.
Getting in and out of the vehicle presents a potential problem, because for a few minutes, the vehicle won't be locked, will it? Doh!
Worst of all, clear and unambiguous language IS used by the legislature, in 52.062(b), contradicting the version in question in 52.061. The only problem with this problem is that some people are unwilling to accept the evidence before their eyes. Why would the legislature write it two different ways if they didn't mean two different things? That's how a judge must reason in dealing with this -- to do otherwise would abrogate iron-clad rules of interpretation. There is no doubt the legislature did mean to include everyone, not just CHLs. So the problem is simple, and the statute should be corrected before somebody gets hurt.
Contact:
Alan Korwin
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