Open Carry In Texas: A primer on the new open carry laws and their effect on the public

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1 Open Carry In Texas: A primer on the new open carry laws and their effect on the public Mark Kratovil, ACDA April 7, 2016 Sharen Wilson Criminal District Attorney

2 Overview Most of the new open carry laws have gone into effect as of January 1, 2016 Campus carry goes into effect on August 1, 2016 What will be covered in this presentation Brief overview of changes to Penal Code Where citizens are permitted to openly carry handguns

3 Need a License to Open Carry As an initial matter, it s critical to remember that under the new open carry law, citizens still must have a valid CHL to openly carry a handgun Now known as a License to Carry a Handgun (LTC)

4 Will Open Carry Pose a Danger to the Community? Likely not, based on the experience of other states and Texas experience with concealed carry 44 other states have some form of open carry California, Florida, Illinois, New York, South Carolina ban openly carried handguns Many of the same safety concerns raised regarding open carry were raised in 1995 when concealed carry was enacted Those fears were proven to be unfounded In Texas, less than 0.5% of all criminal convictions in 2013 were of CHL holders If a CHL holder who was openly carrying commits a crime, existing laws could be enforced against them, and open carry does not affect their prosecution Oklahoma enacted open carry in 2012 In 2013, Oklahoma saw a 7.3% dip in violent crime

5 Will Open Carry Pose a Danger to the Community? Thus far, it has turned out to be much less of a problem than was anticipated Reminiscent of the Y2K bug panic Lots of preparation for something that hasn t caused a problem (so far, at least) I said before this became law that I thought it was going to be much ado about nothing but I didn t know it was going to be this much nothing. Tarrant County Sheriff Dee Anderson to the Fort Worth Star Telegram, January 16, 2016

6 Penal Code Provisions Summary Trespass by license holder w/ concealed handgun Notice required; Class A or C Trespass by license holder w/ openly carried handgun Notice required; Class A or C Unlawful carrying weapons Defendant carries handgun and is not licensed or refuses to show license; Class A Places weapons prohibited Defendant takes a gun to a specific prohibited place (courts, school premises, etc.), regardless of license; no notice required; 3 rd degree felony Unlawful carrying of a handgun by license holder Displays handgun; carries at specific places (church, bar, stadium, hospital, amusement park), while intoxicated, openly carries on any college campus, concealed carries on campus that has opted out; notice required; 3 rd degree or Class A

7 Statistics Show Prosecutions are Relatively Rare Data from Tarrant County between January 1, 2015 March 29, Trespass by license holder w/ concealed handgun No prosecutions in either 2015 or so far in Trespass by license holder w/ openly carried handgun No prosecutions since law came into effect on January 1, Unlawful carrying weapons 656 misdemeanor prosecutions, 26 felony prosecutions (no differentiation between handguns, illegal knives, or clubs) Places weapons prohibited 19 felony prosecutions (no differentiation between handguns, illegal knives, or clubs) Mainly weapons brought to schools, but sometimes to DFW airport Unlawful carrying of a handgun by license holder 22 misdemeanors (none in 2016 so far), 1 felony (gun at a bar) Most common situation is someone intoxicated carrying a gun, especially DWI with gun in car

8 New Criminal Offense Trespass by a license holder with openly carried handgun Penal Code Very similar to trespass by concealed handgun license holder in (which was already on the books prior to new laws) Offense occurs if license holder: Openly carries a handgun; and Received notice that entry on the property by a license holder openly carrying was forbidden Class C misdemeanor, unless party receives oral notice and refuses to leave, then it becomes Class A For governmental property, only applies if it is a prohibited place mentioned in or

9 Unlawful Carrying By a License Holder, Penal Code Cannot open or concealed carry at any meeting of a governmental entity subject to Open Meetings Act But license holder must still receive notice Cannot open or concealed carry while intoxicated Licensed security officers cannot violate any provision of Chapter 411 of the Government Code Biggest issue is that non-uniformed security officers (such as bodyguards) have to conceal their firearm regardless of whether they are authorized to openly carry under any other law Generally classified as Class A misdemeanors

10 No Carrying Allowed By License Holders Flat prohibition on license holders carrying firearms under Penal Code at these places: School, educational institution, or any place a school event is being held Exception for concealed carry on some college campuses Courts or offices used by courts Polling places on the day of an election Place TDCJ is conducting an execution on day of execution Secure area of an airport Racetrack High school, collegiate, or professional sporting event building or stadium Third degree felony Effective August 1, 2016, college stadiums must give notice, but the other stadiums do not

11 Government Property If a government building does not have a court, a licensed citizen is permitted to carry on that government owned property This includes libraries, city hall, administration buildings, parks, etc. Penal Code 30.06(e) & 30.07(e) A major exception to this rule is for rooms in government buildings where meetings subject to Texas Open Meetings Act are held Cannot carry in those rooms, but must still give notice Penal Code (c)

12 Property Owned By the Government Leased to Private Entity Land or facilities owned or leased by the government are generally places guns cannot be excluded from If the government leases property it owns to a private party, the private party becomes the owner for purposes of the Penal Code under 1.07(a)(35) Example: a hotel built by a private company on land at an airport owned and operated by the government Choice on excluding guns rests with private leasing party Similar to landlord/tenant situation

13 Concealed Carrying on College Campuses A private college campus can opt out of allowing license holders to concealed carry on their campus The board of regents at public colleges may establish rules regulating the carrying of concealed handguns on campus, but can t generally prohibit carrying by license holders per Government Code But the campus must still give notice they are prohibiting concealed carry per Penal Code (a-2) & (a-3) Still an offense to open carry on a college campus, regardless of signage

14 Wrongful Exclusion From Government Property If a governmental entity wrongly excludes license holders from carrying somewhere, the citizen has a remedy under Government Code Must first send written notice to the entity and wait three days If not fixed by governmental entity, citizen can alert Attorney General AG then investigates If AG agrees with citizen, governmental entity has 15 days to fix If not fixed after 15 days, AG can sue for both equitable relief and monetary civil penalty ($1,000-$1,500 for first day, $10,000-$10,500 for each day after) Any civil penalty assessed goes to the crime victim compensation fund

15 Prohibited Place Signage Buildings may display a sign with the following language: Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly Mirrors language in signage prohibiting concealed carry This signage serves as the required notice under trespass by a license holder and unlawful carrying by a license holder But note that there is no notice requirement under for prohibited places, such as courts, schools, polling places, and secured area of airports

16 Prohibited Place Signage Individuals and businesses are free to prohibit open carry on private property by displaying the prohibited place signage Two different signs are in effect Signage prohibiting concealed carry under Penal Code Signage prohibiting open carry under Penal Code Special 51% sign for certain places that sell alcohol Language of these signs is nearly identical But both signs need to be displayed to prevent all types of carrying on a particular property

17 Prohibited Place Signage

18 Prohibited Place Signage

19 Prohibited Place Signage Signs such as these have no legal effect in Texas

20 Do We Have To Put Up a Sign? There are three ways to give notice that guns are not allowed A sign that complies with 30.06/30.07 A card or other document with 30.06/30.07 language Oral notice by owner or someone with apparent authority to act for the owner For places where notice is not legally required, might be a good idea as a practical matter to put something up, even if they don t track language of 30.06/30.07

21 Places Where Notice Is Required to Legally Exclude Guns Private property ( 30.06/ 30.07) College campus or where college activity conducted ( (a-2), (a- 3)) As of August 1, 2016 Bars that make 51% of their revenue from alcohol ( (b)(1)) Hospital premises ( (b)(4)) Amusement parks ( (b)(5)) Note no distinction on property vs. premises here Church, synagogue, or other places of worship s premises ( (b)(6)) Collegiate sporting event premises ( (b)(2), (l)) As of August 1, 2016 Open meeting of governmental entity ( (c))

22 No Notice Required to Legally Exclude Guns Premises of school or education institution or grounds where a school sponsored activity is occurring ( 46.03(a)(1)) Polling place on day of election ( 46.03(a)(2)) Courts ( 46.03(a)(3)) Racetrack ( 46.03(a)(4)) Secured area of airports ( 46.03(a)(5)) High school or professional sporting event or interscholastic event premises ( (b)(2)) Nature of event controls, not the venue Correctional facility premises ( (b)(3))