May 2015 Texas Law Enforcement Handbook Monthly Update is published monthly. Copyright 2015. P.O. Box 1261, Euless, TX 76039. No claim is made regarding the accuracy of official government works or copyright of same. Educational purposes only. Does not constitute legal advice. No reproduction outside TPCA membership without written consent. REGULATIONS PERTAINING TO THE CARRYING OF FIREARMS IN PUBLIC BUILDINGS Legislative Update: The Texas legislature recently added the option of open carry for holders of a handgun License ( HL ) issued by Texas. The new license drops the reference to concealed. The changes in the law in HB 910 are generally effective January 1, 2016. The legislature also approved SB 273, which established a civil penalty for state agencies and political subdivisions who wrongfully exclude HL holders from government buildings and tweaked which meetings are eligible for restrictions. The changes in SB 273 are effective September 1, 2015. Sections of the different components of the law relevant to HL holders and government/public buildings are discussed below. There are several issues of which government entities and law enforcement officers need to be aware and this article is not intended to all-inclusive. Government officials should review, at the least, HB 910 and SB 273 in their entirety. As always, consult with legal counsel before making changes. The Exception to Criminal Trespass Related to Government Buildings: Section 30.06 of the Penal Code [new title], Trespass by License Holder with a Concealed Handgun, states in part that: (e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035 [Penal Code]. This section means that a HL holder cannot be prohibited, under the guise of criminal trespass, from entering
a government building while carrying a concealed weapon. Unlawful Carrying of Handgun by License Holder: Section 46.035 of the Penal Code was amended by SB 273 to further clarify and limit the restriction pertaining to carrying a weapon at government meetings. Section 46.035 of the Penal Code, Unlawful Carrying of Handgun by License Holder, now states, with regard to governmental properties, that: (c) 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 [CHL law], regardless of whether the handgun is concealed, in the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to Chapter 551, Government Code, and the entity provided notice as required by that chapter. [New language effective 9/1/15]. (i) Subsections (b)(4), (b)(5), (b)(6) and (c) do not apply if the actor was not given effective notice under section 30.06 or 30.07. [New language effective 1/1/16]. This section means that a HL holder may not carry a weapon, concealed or otherwise, into the actual room or rooms where the meeting of a governmental entity is held. Additionally, this restriction only applies to those meetings that are required to be posted under the Open Meetings laws. Some government entities choose to make all committee meetings comply with the posting and notice requirements of the Open Meetings Act, even if those committees are advisory in nature and do not have to comply with the Open Meetings Act; however, the new law is unclear as to whether this will allow the government entity to bar weapons at those meetings However, the HL holder may only be prosecuted for attending a meeting while armed openly or concealed if appropriate signs are posted as required under sections 30.06 and 30.07 of the Penal Code. The HL holder could be armed when he goes in to pay his water bill, but not when he attends a council or board meeting, assuming the correct signs are posted. Places Weapons Prohibited: Section 46.03 of the Penal Code, Places Weapons Prohibited, states that a weapon cannot be carried into, among other places, the premises of a polling place during early voting and on election day and on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court. Accordingly, a HL holder may not carry a weapon into the court room area or court offices or into a public building being used as a polling place. The criminal trespass warning May 2015 2
from Ch. 30.06 of the Penal Code is not required for this provision to be effective. House Bill 910: As mentioned above, the legislature passed HB 910 which made many changes to the laws regulating the carrying of weapons, perhaps most notably that handgun license holders will now be authorized to carry their weapons openly. Section 44 of the bill added a new section to the Penal Code, 30.07 Trespass by License Holder with an Openly Carried Handgun, which addresses the newly approved practice of carrying a handgun which is not concealed. This new section also includes language that makes an exception for government buildings: (e) It is an exception to the application of this section that the property on which the license holder openly carries the handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under section 46.03 or 46.035. [Penal Code]. This language is almost identical to the language in section 30.06. It appears, from the exception language in 30.06 and 30.07 that the legislature intended to prohibit governmental entities from barring access to government buildings simply because the person held a HL and wanted to bring his or her handgun into the building while he or she conducted business (as long as the HL holder did not go into the room where there was a governmental meeting while armed). Signage Requirements: What about the signage requirements? Both 30.06 and 30.07 have very specific language for warning HL holders that entry with a weapon is forbidden. It would seem that if a proper notice sign was posted HL holders would commit an offense if they entered the government building while armed. Unfortunately this is not the case. The exception language found in section 30.06(e) and the newly minted 30.07(e) precludes arrest and prosecution of HL holders for trespass on government buildings while armed. So should government entities post trespass signs? The answer is an emphatic YES. The sign is required if a HL holder is to be successfully prosecuted under section 46.035, i.e. carrying a weapon into a government meeting. So what do the signs have to say? It should be noted that both businesses and governments will have to post both signs and the lettering and language should match exactly with what is required by statute. 30.06(c)(3) states in part: (3) Written communication means: May 2015 3
(A) a card or other document on which is written language identical to the following: Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun ; or (B) a sign posted on the property that: (i) includes the language described by Paragraph (A) in both English and Spanish; (ii) appears in contrasting colors with block letters at least one inch in height; and (iii) is displayed in a conspicuous manner clearly visible to the public. 30.07(c)(3) states in part: (3) Written communication means: (A) a card or other document on which is written language identical to the following: 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 ; or (B) a sign posted on the property that: (i) includes the language described by Paragraph (A) in both English and Spanish; (ii) appears in contrasting colors with block letters at least one inch in height; and (iii) is displayed in a conspicuous manner clearly visible to the public. It should be noted that both signs must be posted. The sign language should not be combined, as the statute expressly states the language must be identical to that found in the statute. SB 273: So what if the government agency or political subdivision purposefully or perhaps inadvertently prohibits a CHL holder from coming onto its property while armed? SB 273 established a civil penalty for any state agency or political subdivision that wrongfully excludes a concealed handgun license holder from its premises. The new law is found in section 411.209 of the Government Code and states that government entities may be subject to fines as follows: (b) A state agency or a political subdivision of the state that violates Subsection (a) is liable for a civil penalty of: (1) not less than $1000 and not more than $1500 for the first violation; and (2) not less than $10,000 and not more than 10,500 for the second or a subsequent violation. May 2015 4
(c) Each day of a continuing violation of Subsection (a) constitutes a separate violation. These violations will be investigated by the office of the Attorney General. Sovereign immunity is expressly waived for these violations. Again, SB 273 is effective September 1, 2015. Government entities who violate the law regarding access by HL holders may be given time to correct the problem before a fine is assessed. Summary: Local governments cannot flatly prohibit a person with a handgun license from entering a government building while armed, regardless of whether the weapon is concealed or carried openly. Local governments can prohibit a person with a handgun license from attending a meeting of the governmental entity while armed, but only if the entity has posted signs that are identical to the language in the statutes. The meeting restriction means that the CHL holder went into the actual room or rooms where the meeting was being held and that the meeting was one that was required to be posted and open under the Open Meetings laws in Texas. The charge would not be criminal trespass; rather, the charge would be Unlawful Carrying of Handgun by License Holder. Court of Criminal Appeals QUESTIONS ABOUT THE DEFENDANT S NAME AND PHONE NUMBER THAT WERE ASKED IN A CUSTODIAL INTERVIEW DID NOT FALL WITHIN THE BOOKING EXCEPTION TO THE MIRANDA RULE Defendant was arrested in Illinois on an Illinois warrant. Texas investigators arrived 14 hours later and asked the defendant for his name and phone number. He gave the information. The Texas investigators used the responses to connect defendant with a Texas homicide. The trial court suppressed the interview information. The state appealed and the appellate court reversed, holding that the questions were part of the booking questions exception to Miranda. The defendant appealed to the court of criminal appeals and that court reversed, affirming the trial court s suppression order. There was a murder in south Texas. There was a fingerprint recovered at the crime scene. It was matched to an individual who had several names and had been arrested several times in the Chicago area. A call to Chicago law enforcement revealed the defendant had an active DWI warrant out of Illinois. Texas investigators contacted the US Marshal s office in Chicago and asked them to arrest the defendant on the DWI warrant, but also asked them to not mention anything about the Texas case to the defendant. May 2015 5
The defendant was arrested on the Illinois warrant and the Texas investigators traveled to Chicago to interview the defendant. They did not tell him they were from Texas and did not advise him of his Miranda warnings. They asked the following: name, address, phone number, whether he had a cell phone, how long he had been in the US and whether he was living with anyone. The defendant provided answers to the questions, including a cell phone number. The detectives explained at trial that they wanted the cell phone number to see if it was located in Texas on the date of the murder. Cell phone records showed the phone was in Austin on the date of the murder and that it hit cell towers close to the crime scene. The issue before the court was whether the questions asked during the interview were subject to the Miranda requirement or they fell within the booking exception to Miranda. The court outlined the issue: As a practical matter, a question that seeks to elicit biographical data may be deemed not interrogation under either of two theories. First, such a question may be deemed not interrogation because it does not meet the general test for interrogation, i.e. it does not meet the should know test. That is, a court could decide that a particular question about biographical data was so innocuous that its tendency to produce an incriminating response was not something the police officer should have known. Second, a biographical question may be deemed not interrogation under the booking (or administrative ) exception. That is, a court could decide that a particular question about biographical data was a routine administrative inquiry. The court pointed out that simply because a question is biographical in nature it is not automatically excluded from Miranda considerations. It depends upon what the officers knew at the time of the questions. In other words, was it a situation where the officer should know that the response is likely to incriminate the suspect. The court explained this in the context of this case: [O]n the present record, [defendant s] name and phone number had incriminating value in themselves and did not simply lead to other incriminating evidence. **** The record also shows that the detectives were seeking to obtain [defendant s] cellphone number, which could link him, through cell tower data, to a location and time that was close to the murder. Not only should the detectives have known, but, at least with May 2015 6
respect to [defendant s] phone number, they did know, that the questioning was likely to lead to an incriminating response We conclude that [the detective s] questions about [defendant s] name and phone number satisfied the should know test for what constitutes interrogation. The court next addressed whether the responses were admissible as part of the booking or administrative exception to Miranda. The court noted that the circumstances in which a question is asked is relevant to whether the question reasonably relates to an administrative concern The court reviewed the facts of this case: [Defendant] had already been booked by Illinois authorities. By contrast, when the Texas detectives questioned him, the state of Texas had not exercised any formal authority or control over him [he had not been arrested Ed.]. [Defendant] had not yet been detained under the authority of the Texas offense, he was not informed the detectives were from Texas, and he was not informed that the detectives were connected with a Texas murder investigation. Moreover, the detectives did not suggest any administrative need for the questions they asked, nor did they point to any standardized or routine policy or procedure that they were following. There was no showing on this record that the questions were in any way connected with the filling out of an administrative form. We conclude that the circumstances surrounding the interrogation show that the questions were not reasonably related to an administrative purpose. The responses to the interview questions should have been suppressed. State v. Cruz, NO. PD-0082-14 (Tex. Crim. App.5/13/2015) Commentary: An interesting case. Officers should note that it does not signal the demise of asking biographical questions without first reading the Miranda warning. The court simply determined that since the detectives knew ahead of time that a name and cell phone number would be incriminating in and of themselves, the detectives could not claim this was simply a booking question situation. May 2015 7