Updated 2015-11-05: posted a follow-up.
For those of you wishing to open carry a handgun in Texas come January 1, 2016, it’s critical you understand the law.
One issue that came up during the debates during the 2015 Texas Legislative session 84(R) on the open carry bill (HB 910) was issues of “stop and identify”, if a police officer could stop you to determine if you had a carry license or not. The drama of the debate no longer matters: what matters now is what the law currently says.
What does the law say? The law is silent on the matter.
That said, the bottom line is that yes, if a police officer sees you openly carrying a handgun, they can certainly stop and detain you for the purposes of determining if you are properly licensed.
How is this possible?
Prior to 84(R) HB 910, Texas Penal Code §46.02 Unlawful Carrying Weapons said:
Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (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-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters. (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. (b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor. (c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Under existing (pre-January 1, 2016) law, a police officer has the authority to stop someone they see openly carrying a handgun. Why? Because according to the above law, it’s against the law to do so. Simple enough.
With 84(R) HB 910, §46.02 changes:
(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
So what it means is this:
If a police officer sees someone openly carrying a handgun, the police officer has reasonable suspicion that a crime has been committed – namely, the possession of a handgun in plain view, in violation of Penal Code §46.02. Note the language in HB 910 adds to §46.02 the phrase “unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster”.
So yes, you can be stopped. Yes you can be detained. Yes the police officer can and will work to determine if you are able to legally carry (do you satisfy the “unless” clause). Yes, you might be disarmed by the officer.
And yes, per GC §411.205, if a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license. That doesn’t change with 84(R) HB 910.
So before you get your “rights” all up in a bunch, realize that this is how the law is.
And in speaking with lawyer and LEO friends of mine, there are many other legal cans of worms that are being opened due to the general notion of open carry AND specifically due to the way the current law is phrased. The more I hear and think about these things, the less I feel like open carrying and becoming the precedent-setter. A lot is going to have to be sorted out by the legislators and the courts in the coming years.
If you don’t want to be stopped, if you don’t want to get stuck in the legal mud, then don’t open carry. It’s simple. If you don’t like that this is how things are, then work with your legislators (and probably the TSRA) to get things improved.
If you do chose to carry, if you do get stopped, then realize it will be your opportunity to set the pace and tone for not just yourself, but every other gun owner. As I said before: be polite, be professional. In terms of your own interaction, you’re going to get further by being professional, polite, understanding, sympathetic, and polite (yes, polite said now three times for emphasis) – even if the cop is being a power-tripping asshole, that doesn’t mean you have to be. Be nice. Demonstrate good manners (say “please” and “thank you”, “sir” or “ma’am” doesn’t hurt either). If you’re nice, your interaction should go smoothly – if it doesn’t, then you being nice gives you the upper hand and will just magnify the other’s less than exemplary behavior. We’re all going to be scrutinized here, so live up to some high(er) standards. And hopefully if all early-day interactions go smooth and well, hopefully that will mean less interactions for us all as time goes on.
It’s your choice – you can be an asshole, or you can be an ambassador. Don’t ruin it for the rest of us. Don’t ruin it for yourself. Some people want to open carry to show off their gun. Well, remember that it’s not just your gun that’s openly carried, but also how you carry yourself that’s open for display to the whole world. Make us and make yourself proud.