Introduction
Ok, for folks willing to put in the skull sweat, the following is an example of how reading the language of one statutory provision might conflict with other laws and how courts often address the conflict by seeking to harmonize the law to the best of their belief of what the legislature intended.
I) Interpreting the Statutory Language
a) The Statute TPC § 46.01
We start with the infamous muzzle loading black powder/antique/replica provision in Texas law. At the beginning of each chapter of law and usually government regulations, terms that are to be used are usually defined in modern statutes. Our statute is found in Texas Penal Code: Title 10: Offenses Against Public Health, Safety, and Morals. Chapter 46 of the Texas Penal Code addresses offenses committed with weapons. In the interest of brevity, I am omitting definitions other weapons such as clubs, daggers, explosives, etc.
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm
"Sec. 46.01. DEFINITIONS. In this chapter:
(1) omitted
(2) omitted
(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter
and that is:
(A) an antique or curio firearm manufactured before 1899;
or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
(4) omitted
(5) "Handgun" means any firearm that is designed, made, or adapted to be fired with one hand."
(6-20) omitted”
Now, let us see how the definitions in one section of a statute may or may not carry over to another portion of that same statute. Later, we will examine how other statutes in the Texas statutes and caselaw may not have the same definition at all and how courts have to often resolve apparent conflicts between different statutory provisions that were passed at different times.
In the next section of the Texas Penal Code (TPC), we find our first offense that can be committed by someone carrying a weapon unlawfully.
TPC. Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person
a handgun; and
(2) is not:
(A) on the person's own premises or premises under the person's control; or
(B) 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-1-3) are omitted as they distinguish a different offense as well as defining premises and vehicles.
As an exercise in interpretation, a felon owns a replica antique firearm which is also a handgun, let’s say a Colt 1851 Navy Cap and Ball revolver. To make things simple, we assume no cylinder conversion kit is available to change it to centerfire as an aftermarket accessory. In addition, the forbidden felon, John Wesley Hardin, was walking along the side of the public road carrying the firearm in his hand. A Texas Ranger, John B. Armstrong, see Hardin walking along the road with a firearm in his hand. The Ranger stops and arrests Mr. Hardin for a violation of § 46.02 listed above because he is carrying on his person a handgun (albeit obsolete as it may be) and is not present on his own premises or inside/directly en route to a motor vehicle or watercraft in this exercise.
Hardin’s defense lawyer argues that the charges should be thrown out as Hardin was carrying a handgun that was not a firearm according to TPC § 46.01(3.b) “a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.”Prosecution counters that the legislature has distinguished between handguns and firearms in § 46.01 by having separate definitions with separate purposes in mind for a firearm in definition 3 which includes the exception but definition 5 specifies that a handgun is a firearm designed to be able to be fired with one hand. You are the judge and you have to make up your mind what the law says.
So, there are two possible interpretations to this. One would be that all black powder replicas under definition 3 are not firearms period; and thus any subsequent reference to it in the criminal code also would exclude any handgun this is a replica under definition 3. However, the state could contend that if the legislature wanted to treat all blackpowder replicas or antiques the same, they would have included the same exceptions for antiques and replicas in definition 5 of handguns. The legislature did not. Thus, a judge will make a ruling and possibly then an appeal to a district court of appeal, and in Texas, there is a separate Court of Criminal Appeals that is Texas’s criminal law court of last resort.
As a result, judges facing uncertain language in a statute usually investigate other provisions in the code where the legislature has treated firearms and handguns or they turn to caselaw where some court has illuminated the language. Sometimes, a court will actually look beyond the borders of its state to federal or other state court decisions.
But as sometimes happens, in the present hypothetical case of Hardin v. State, it makes the language murkier. If one considers offense (a-1) which is omitted above, the legislature regulates the means of carry of handguns and also includes language indicating that the legislature: a) forbids using handguns for criminal purposes, b) forbids criminal gang members from carrying them, and also c) forbids persons banned from carrying firearms (felons). Thus, the same problem in differences in interpreting statutory language arises for the quizzical judge. Did the legislature of Texas intend to treat handguns separately from other firearms? And, does this prevent someone from using the antique/reproduction/muzzleloading handguns when they could possess such in a longarm? To do this, a trial judge must determine what the law means in order to apply the law to the case facts in the case on trial.
II) Applying Case Facts to the Statute in Question.
a) The Case:
For example, let us examine a recent case to demonstrate. Generally, the older the precedent, the more likely that subsequent decisions have undercut the original court ruling as precedent. If you have access to legal databases, Lexis uses Shepard’s citation guide while Westlaw has its KeyCite system to determine the relative worth of the precedent found.
The case at hand is
Lovett v. State, 523 SW 3d. 342 (Court of Appeals of Texas, Fort Worth (2017)). In this case, an self proclaimed 2A "activist" named Lovett was involved in a dispute during a Terry stop with a police officer along with another armed activist. Apparently, the "activist" pair started filming the police (probably with a cell phone camera but not in the appellate record) when they were making an arrest of drug suspect. These activists showed up at multiple places where the police had stopped someone to film the ensuing search/arrest and these activists did so while armed.
b) Lovett v. State Case Facts:
The case facts from the appellate court read as follows:
“As the two officers were then about to leave and go back across the street, a black Chevy Avalanche pulled up behind them in the parking lot. A passenger, Kory Watkins, got out with an AK-47 on his back; Lovett, the driver, emerged with a deadly weapon holstered on his hip. Officer Kemp instructed them both to put their weapons in the vehicle. Watkins complied. Lovett did not.”
According to Officer Kemp, the situation had become chaotic by this time, and the two videos (both recorded by the police-filming activists) corroborate his testimony that many people were now yelling. Someone loudly accused the police of “tyranny.” Despite the provocations, the two officers were unperturbed and professional. After Officer Kemp gave Lovett two or three warnings to put his weapon away, Officers Kemp and Deary calmly arrested him without incident or resistance. Lovett was the only person at the scene who refused to put his weapon back in his vehicle. *346 Lovett’s pistol remained holstered, and from the videos it appears that the officers did not relieve him of it even while in the process of placing him under arrest.
Throughout the roughly 50 seconds between Lovett’s arrival and his arrest, he was passive and—but for non confrontationally refusing Officer Kemp’s directive—cooperative. Lovett can be seen on video in a T-shirt bearing one of the many now-ubiquitous twists on the British stiff-upper-lip slogan from World War II; his read “Keep Calm and Film the Police.”
During the guilt–innocence portion of the trial, Lovett put on one witness, Charles Osborne, who is a former Marine and a weapons expert. When shown Lovett’s weapon, he described it as a “remake of a Colt 1851 in .44 caliber originally designated as a Colt Navy.” Under the penal code, it was considered a black-powder revolver—and thus not a “firearm”—but as Osborne acknowledged, it could still kill someone—and thus was a “deadly weapon.” According to Osborne, the pistol was a military firearm used during the civil war; killing was what it was designed to do.”
On the videos, one person can be overheard repeatedly invoking penal code sections 46.01 and 46.02(3)(B) and telling Officers Kemp and Deary that both the first pistol the officers encountered and the one that Lovett carried holstered on his hip were “pre-1899 black-powder pistols” and therefore not firearms under the statute. The officers declined the activists' offer to let them inspect the first pistol, and when Lovett arrived, the officers ignored the activists' attempts to persuade them that Lovett’s pistol, even while holstered, could still be identified as a “pre-1899 black-powder pistol.”
Osborne agreed that only a firearms expert would be able to tell at a glance that Lovett’s weapon was a statutorily excluded black-powder pistol as opposed to one using rim-fire or center-fire ammunition. Osborne also acknowledged that if he was working perimeter duty while on military assignment and someone showed up with a weapon like Lovett’s, it would “look like a firearm” or “like a deadly weapon” to him. But regardless of whether Lovett’s pistol was a black-powder replica or an antique gun of some other sort, both Officer Kemp for the State and Osborne for the defense agreed: it could be deadly.”
c) The Resolution of the Lovett Case:
The court boiled down the facts to this: Lovett refused repeatedly to comply when the police officer asks him kindly to put his blackpowder revolver away in the vehicle and Lovett persisted in his refusal because he believed that Texas statute §46.01 made his pistol a replica of an antique under the law and not a firearm. Thus, Lovett was arguing that §46.01 as a statute made him immune from having to disarm from a police officer during an investigatory stop.
Lovett got charged with disorderly conduct (TPC § 42.01 (8)) with a firearm and also interfering with a police officer's official duties by refusing to disarm ( TPC § 38.15 Interference with Public Duties). He was convicted of both provisions at trial--appealed and won a reversal of his disorderly conduct involving a firearm. The Court reasoned that as Lovett never touched the holstered Peacemaker nor made any attempt to make a threatening movement toward it, he did not display a deadly weapon/firearm in a manner calculated to cause alarm. We will return to the disorderly conduct charge in Lovett’s case later. Lovett’s second conviction was sustained as the court held that a Peacemaker was still
a deadly weapon and police are allowed to secure such, regardless of antique status, during an investigatory stop for their own safety. Note that the text of TPC § 38.15 Interference with Public Duties, does not include any language about firearms,
"(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:
(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;"
As this statute contains nothing about firearms, antique or other, Lovett must argue that his refusal to disarm did not interfere with a peace officer performing a duty and exercising authority granted by law. For the appellate court, it was an easy call, the court had numerous precedents that permit a law enforcement officer during an investigatory stop to briefly detain, question, and even disarm someone for the duration of the stop. Even the U.S. Supreme Court has blessed such duties constitutionally with Terry v. Ohio, 392 U.S. 1 (1968). Thus, to the court, the factor that Lovett was carrying a replica which was not a firearm under 46.01 and its provisions was irrelevant to interpretations of statute 38.15 which only requires the state to prove a) that the officer was engaged in an investigatory stop, and b) the officer had requested that Lovett disarm and that officer was exercising an authority granted by Texas laws to disarm individuals for the duration of the investigatory stop. As Lovett's own witness testified, a replica or antique cap and ball revolver is still a deadly weapon. Thus, we can see that provisions and definitions of one section of statutes, can have no effect on other statutory provisions found elsewhere.
III) Other Texas Statutes—Add More Ambiguity
a) Different terms used in different parts of the code.
The more that I examined the firearm statutes (not just antique/replica issues) in Texas; the greater the ambiguity that I saw. Texas Code addresses the following terms in its laws; pistols, handguns, centerfire, rimfire, antiques, replicas, shotguns, firearms, and deadly weapons. The terms are not consistent across the statutes and thus substantial risk exists as to what the courts might interpret a particular statute and whether a definition of a firearm in one instance will apply in a different statute. For this, one would need to examine the caselaw where the court has addressed some of this ambiguity using concrete case facts rather than statutory abstractions.
For example, courts have
held that a defendant has the burden of proof that the firearm is indeed an exception (e.g. antique) to the general language of firearms and that it is not altered nor a replica capable of firing centerfire/rimfire ammunition. Case authority for these are
Cantu v. State, 802 SW 2d. 1 (Court of Appeals, San Antonio, 1990); and
Hutchings v. State 333 SW 3d 917 (Court of Appeals, Texarkana, 2011)); in addition also see
McIlroy v. State, 188 SW 3d. 784 (2006).
In addition, different provisions scattered throughout the code regarding local government authority to regulate discharges of firearms appear to differentiate between firearms and firearms that use centerfire or rimfire. This appears similar to the language allowing local government regulation involving government offices, parks, public meetings, political events, athletic/cultural events, etc. as well as states of emergency. In a similar fashion, the 30.06 signage regarding carry might also be applicable.
Where it gets sticky is that Texas courts, as a general principle will interpret laws harmoniously and to give substantial effect to the legislature's wishes so that a definition in the criminal code of a firearm might or might not apply to other parts of Texas code. The laws allowing local governments to regulate discharges is an example,
§ 229.002 Vernon's Texas Code Annotated (VTCA),
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 after 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 10 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 50 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.
This would appear to distinguish possible blackpowder antique/replica muzzle loaders in section 1 versus modern weapons in section 2 in the code by requiring greater distances for center and rim fire rifles and pistols. Obviously, whoever wrote this statute had no idea about the legendary reach of sniper quality Whitworth muzzleloading rifles.
Someone briefly perusing statutes for mentions of "firearms" can also observe, § 42.12. Discharge of Firearm in Certain Municipalities, numerous examples in Parks and Wildlife Code including local firearm discharge laws under that provision, and Texas Penal Code definitions § 1.07 regarding deadly weapons,
TPC § 1.07 reads in part:
" (17) “Deadly weapon” means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. (see for example, Garner v. State, 864 S.W.2d 92 (Court of Appeals, Houston, 1993). Notice, this case definition is what the court in the Lovett case used as Lovett’s own expert witness had to testify that the replica was a deadly weapon designed to kill. Thus, it fits TPC § 1.07 (17) “Deadly weapon” definition.
Thus, the interpretation of a firearm/not-firearm in § 46.01 in the Penal Code which excepts muzzleloaders, antiques, and replicas from certain firearm regulations in that section of law, should not be assumed to apply to other areas of the code mentioning firearms or related terms such as pistol, deadly weapon, etc.
c) Observation of a Court Interpreting a Statute:
I will conclude with
Texas v. Ross, 573 S.W.3d 817 (Court of Criminal Appeals 2019). The State of Texas is seeking to reverse lower court rulings that held TPC § 42.01 Disorderly Conduct “(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;” was unconstitutionally vague.
This case is also an example of another part of the Texas Penal Code where firearms and other deadly weapons would include a black powder replica/antique. In the Lovett case above, he was successful in getting the first part of his conviction of disorderly conduct under § 42.01 (8) set aside on appeal. However, it was because Lovett showed no signs of trying to access or touching the holstered Colt. If he had, his conviction would have been upheld whether the court treated it as a deadly weapon or as a firearm.
In the
Ross case, the majority opinion used a dictionary to define the statutory phrase, "calculated to alarm". They first defined alarm and then what calculated meant in defining alarm. Not surprisingly, the dictionary definitions, and the reasonable person standard make an appearance so that the court construed the language as meaning an action by the person with the firearm that was designed to cause alarm in the average reasonable person. Remember, the Lovett court regarded the fact that the defendant in the case made no moves toward the firearm as if to draw, did not touch the firearm which was holstered, or any other action that could be construed as alarming to the average person. That is why the Lovett court reversed the appellant's (aka defendant) conviction in the case. However, the case facts in
Ross differ.
The Ross court then addressed whether or not the law conflicted with the section of the Texas Penal Code that allows licensed carry, § 46.035. The court addresses the alleged conflict between laws below:
“For the reasons that follow, we do not perceive any tension between our reading of Section 42.01 (a)(8)and the right of law-abiding Texans to openly carry their firearms. Section 46.035 generally defines how a person may, if properly licensed, openly carry a handgun in a public place. Under Subsection (a), a person who is properly licensed under Subchapter H, Chapter 411 of the Government Code commits an offense if he carries a handgun on or about his person and “intentionally displays the handgun in plain view of another person in a public place.”It is an exception to the offense that the handgun was “carried in a shoulder or belt holster by the license holder.”
The basic idea is that a civilian may openly carry a handgun in a public place only if (1) he is properly licensed to do so, and (2) the handgun is carried in a shoulder or belt holster. Because keeping the handgun in a shoulder or belt holster is described as an exception to this offense, we can fairly deduce that all that is required for someone to “display” a handgun under Section 46.035 is for him to carry the handgun on or about his person in plain view of another. If a license holder carries a handgun in plain view of another by keeping it in a shoulder or belt holster, he is “display[ing]” the handgun, but his conduct does not violate Section 46.035 because it falls within the statutory exception.
On the other hand, if a license holder openly carries a handgun in a public place in a leg or ankle holster, he is “display[ing]” the handgun, and he may not avail himself of the exception; barring some other defense or exception, this person's conduct violates Section 46.035. But that is all he has done—“display[ed] a firearm.”
By comparison, Section 42.01(a)(8) does not say that a person commits an offense if he merely “displays a firearm in a public place.” By its terms, Penal Code Section 42.01(a)(8) requires an additional something else—it requires displaying plus “a manner calculated to alarm.”
Thus, the Ross court's majority concluded that no conflict existed. In this case, however, several justices dissented and argued in part that a conflict could very well exist and that conflict would make part of one statute vague. The dissenting justices believed that the majority opinion incorrectly interpreted the statute. This highlights that even learned justices can differ on how to interpret the wording of a statute and how that statutes may conflict with one another.
The lesson is that even judges differ on close matters of interpreting statutes without clear guidance that often comes from court precedents. One cannot then simply read the statute and be done with it. A student of the law, aka a lawyer, consults court cases, law reviews, dictionaries, and even history of laws, in order to construct a meaning of what the bare bones of the statute actually mean.
IV. Summary,
It is easy to lose the forest for examining one tree too closely. It is the same with the law. Thus, the statute is the beginning of the interpretive process of what it means, but that statute exists in a code, and the legislature enacted those various parts of the code at different times with different people. So, a courts must take the statute and give it meaning in a concrete case with facts. The courts must also try to give effect to what the legislature had as a goal when passing the statute and harmonize that particular statute with the other parts of the law and the U.S. and Texas Constitutions. U.S. courts, seldom, if ever, revisit statutory rulings because if the legislature feels that the courts got it wrong, they can simply pass a new statute the codifies what the legislature wanted in the first place. So a statutory interpretation is often a patchwork of court decisions with definitions and understandings that do not appear in the plain statute (unless you spring for the more expensive annotated versions that are in commercial databases). So, one should always read the statute first, but then seek additional ways to understand what the text means before risking one’s life and liberty on an erroneous interpretation.
I end with a quote from Lewis Carroll that is somewhat relevant,
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” (Lewis Carroll (aka Charles L. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934).
