Texas Open Carry and holsters.... and vehicles...

[Texasgrillchef]

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a shoulder or belt holster by the license holder.
————
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) 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, 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

—————-

Here are several questions I have...

Obviously in Texas to legally open carry, the handgun must be holstered in a shoulder or belt holster.

however. While there is a long section that defines many aspects of weapons, ammo etc... there is no know definition given defining a belt or shoulder holster.

Second as I also see, no where is it defined or given that these holsters are required to be correctly attached to your body as well. Thus when in a vehicle, or water craft. You could as I understand it, still have your handgun holstered in a belt or shoulder holster and it be laying openly on the passenger seat, dash, your lap, or center console.

Theoretically, one could have the handgun holstered in either holster and have it attached or stuck on some other place of the body openly, partially or wholly visible and still be legal.

what is obvious as well is if a woman has it in her purse, in an outside pocket, or happens to have one of those see through purses, it would not be legal for her to do so, if any part of the gun were showing and it wasn’t in one of the required type holsters.

now raises my final question. alien gear makes a holster (we have several) that uses a shell for the handgun, then attaches to various different attachments depending on how one wants to use it. They have IWB, OWB, Shoulder, Molle, Ankle, Vehicle, Backpack, etc mounts.... the holster shell remains the same, how it attaches varies.

One could very easily claim the holster is both a belt and a shoulder holster no matter how it attaches or used.

I have allready brought this to the attention of my local Texas senator, and house rep, both Republicans, and they will introduce a bill to clear this issue up in the next session, by simply removing belt/shoulder and leaving “holster” in place. According to the senators staff though, their thought is that it doesn’t matter how the holster is used as long as the gun is in a holster. But that’s possible future law, not current law.

thoughts on legal issues of holsters in Texas as it applies to in a vehicle? Or on ones person for open carry? Yes all forms of open carry in Texas require an LTC. So let’s assume for the sake of this discussion everyone has their LTC.

 

[Frank Ettin]

.... there is no know definition given defining a belt or shoulder holster.....

In that case the words will be understood in accordance their normal, everyday meaning. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42: “...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...”

We all know what a shoulder holster and a belt holster are. And holster maker catalogs should help clarify matters.

....Second as I also see,...

No one cares how you see things. What matters is how a court is likely to see things. You need to do the necessary research into applicable court decisions.

... Theoretically, one could have the handgun holstered...

And your theorizing is just as worthless as how you see things.

....One could very easily claim...

One could claim all sorts of things. So what? You need to cite some legal authority suggesting that a judge might actually pay favorable attention to a claim.

......thoughts on legal issues of holsters in Texas as it applies to in a vehicle? ...

Again, random thoughts not backed up with legal authority don't really mean anything.

On the other hand, the Houston Police Department has some thoughts:

• 11. Can I open carry in a vehicle?
  
  Yes, as long as the handgun is in a shoulder or belt holster and you have a license to carry a handgun. If you do not have a license to carry a handgun, you must keep your handgun hidden from plain view.

  
  

• 21. What is a “belt holster” and what kind of holster would be a violation?
  
  The law does not define a “belt holster”; the law just states you must carry your handgun in a “shoulder or belt holster.” A “drop down” holster attached to your belt is considered to be a belt holster.

...

 

[Ed Ames]

thoughts on legal issues of holsters in Texas as it applies to in a vehicle?

My thought is that I’ve always been far more bothered by the gap in this:

inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.​

Does that mean legally you can put a gun in your pocket and carry it in public to your car, you can drive your car around town, you can then go home...but you can’t actually carry it back into your house? It says “en route directly to”, but it doesn’t have a similar statement about going directly from your car.

But it doesn’t seem to bother anyone else so I assume I’m being overly literal.

If you want a gun in a holster in your car in Texas, the gun needs to be out of plain view. Set a sheet of paper over it or put it in a quick-access lock box.

 

[Mr. Zorg]

When I took my LTC class the instructor made it pretty clear to me at least the less than well thought out carrying concealed with unintention breaking of concealment for example temporary extended body position vs effective open carry, and display or brandishing to my satisfaction. The first rule of concealment is to not break concealment.

In the instances regarding travel to a personal vehicle or motor vehicle, if not legally carrying concealed, my solution would be to transport the firearm in a padded case, an inexpensive example with polymer shell has worked well for me between my house and a range for example before achieving my LTC. To me that could be an alternate choice where holsters and consideration of same wouldn't enter the equation AFAIK.

Be advised I have no formal legal training nor certification, this would simply be my choice in such temporary in transit situations and as such offered for consideration.

 

[jmorris]

Reminds me of a time when I was pulled over driving a car with out of State plates on it. It was otherwise “legal”, so I didn’t realize that in and of it self was a valid reason to pull someone over but... Anyway I handed the officer my license, CHL and insurance as well as the purchase information on the car (got it to go to matches in).

Once he noticed the CHL, he asked me if I had a firearm and I said yes. He then told me to get out of the car. At that point I informed him that if I exited the vehicle, my concealed firearm, would no longer remain concealed and at that point I was going to proceed very slowly with my hands in sight.

Once I am out, he says, “you’ve got a gun right there!” I told him that’s exactly what I told him before I took my hands off the steering wheel. He asked if he could have it and I told him he could but he would have to remove it from the holster. So he took the 1.5lb trigger SV and stuffed it into his pants, without checking condition of it. Then went and stuffed all ~280lbs of himself into the front seat of one of those little impalas. While I stood there, I glanced into the back seat and suddenly remembered I was going to a 3 gun match because of the AR and shotgun sitting in view, he never even noticed...

In any case I see the wording like they wanted to use “brandish” but also include behavior that could be perceived as threatening but not waving the firearm around.

 

[Ed Ames]

In the instances regarding travel to a personal vehicle or motor vehicle, if not legally carrying concealed, my solution would be to transport the firearm in a padded case, an inexpensive example with polymer shell has worked well for me between my house and a range for example before achieving my LTC.

The point is that under Texas law, there are many cases where you don’t need the case even if you don’t have a license.

For a concrete example: a person who does not have a license to carry and wants to go to a grocery store. They can conceal a gun while at home, on their walk out to the car, and on their drive to the store, all without breaking the law. Then they must disarm to go into the store, but the gun can be accessible in the car so long as it isn’t plainly visible (meaning leaving it on the seat with a sheet of paper over it is legal). They can rearm once they are back in their car, and can drive home, no license needed even if it’s in a holster on their person. However, the law doesn’t mention the walk from car to home. Once they are in their home they can carry again.

That little asymmetry bugs me. Walking exactly the same path, between the same two points, apparently changes between legal and illegal depending on which direction you face.

 

[bdickens]

Whole lot of overthinking going on here.

Guns don't generally raise eyebrows in Texas. No one is gonna care about you carrying one back and forth to your car as long as you're not pointing it at someone.

No legal definition of a holster is given because none is needed; everybody knows what a holster is.

 

[Texasgrillchef]

In that case the words will be understood in accordance their normal, everyday meaning. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42: “...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...”

We all know what a shoulder holster and a belt holster are. And holster maker catalogs should help clarify matters.

No one cares how you see things. What matters is how a court is likely to see things. You need to do the necessary research into applicable court decisions.

And your theorizing is just as worthless as how you see things.

One could claim all sorts of things. So what? You need to cite some legal authority suggesting that a judge might actually pay favorable attention to a claim.

Again, random thoughts not backed up with legal

On the other hand, the Houston Police Department has some thoughts:

...

In that case the words will be understood in accordance their normal, everyday meaning. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42: “...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...”

We all know what a shoulder holster and a belt holster are. And holster maker catalogs should help clarify matters.

No one cares how you see things. What matters is how a court is likely to see things. You need to do the necessary research into applicable court decisions.

And your theorizing is just as worthless as how you see things.

One could claim all sorts of things. So what? You need to cite some legal authority suggesting that a judge might actually pay favorable attention to a claim.

Again, random thoughts not backed up with legal authority don't really mean anything.

On the other hand, the Houston Police Department has some thoughts:

• 
  

...

One needs to have a correct understanding of the law, or someone might end up in violation.

So that’s why I was thinking even possibly incorrectly that as long as the gun is holstered The holster does not have to be attached to the body. Or am I incorrect?

 

[Texasgrillchef]

Whole lot of overthinking going on here.

Guns don't generally raise eyebrows in Texas. No one is gonna care about you carrying one back and forth to your car as long as you're not pointing it at someone.

No legal definition of a holster is given because none is needed; everybody knows what a holster is.

Well in Texas going back n forth between your car, or watercraft is legal, with or without a LTC.

The difference is if your driving down the road, on a motorcycle, or in a convertible, with your gun laying on the passenger seat, or hanging off your handle bars. If it isn’t in a belt or shoulder holster your in violation of the law.
In certain locations that could be an issue, in other areas no one would care including the police.

Texas law does clearly & specifically define that for openly carrying a handgun it MUST be in a belt or shoulder holster. It does not say if it must be on your belt or shoulder though. Openly carrying in an ankle holster is not legal.

However there are now holsters that are just generic holsters that can be adapted to use anywhere, ankle, chest, Belt, appendix, etc... How the holster is attached, is based on its mount it gets mounted too.
Check out AlienGear shapeshifter holsters.... Thus the said holster may or may not be a shoulder or belt holster.

 

[Frank Ettin]

...Texas law does clearly & specifically define that for openly carrying a handgun it MUST be in a belt or shoulder holster. It does not say if it must be on your belt or shoulder though....

And how do you know this? Can you cite legal authority supporting it? Are you sure that a Texas judge applying the law hasn't reasoned that the legislature intended by the language in the statute that a gun carried in a belt holster is worn on one's belt and that a gun carried in a shoulder holster is worn on one's shoulder?

You need to stop guessing.

 

[CapnMac]

The guidance from the Texas AG on this issue (and, of course, I cannot now find it at the AG's web site) matched up with the HPD guidance. (To my knowledge several Departments set their polices per the guidance--but YMMV.)

All the published material all specifies that Open Carry requires a holster and the LTC--but the current language of Title 4, Subtitle B. Law Enforcement and Public Protection, Chapter 411 , Department of Public Safety of the State of Texas, Sub-chapter H, License to Carry a Handgun, no longer specifies that (a detail the Texas State Law Library seems to have missed). The original HB.910 waxed on incessantly about holstered carry, but the current Title do not so require.
Even turning to Title 7. Offenses Against Property, Chapter 30. Burglary and Criminal Trespass, specifically, Sec. 30.07. Trespass by License Holder with an Openly Carried HANDGUN, we find, down in the text:

(f) It is not a defense to prosecution under this section that the handgun was carried in a shoulder or belt holster.

 

[JohnKSa]

TX Penal Code <46.035 (a)> clearly specifies that a handgun that is not concealed must be carried in a belt or shoulder holster.

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.035

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a shoulder or belt holster by the license holder.​

That section, independent of any other TX law, makes it a crime to openly carry a handgun unless it is carried by a license holder in a belt or shoulder holster.

The original HB.910 waxed on incessantly about holstered carry, but the current Title do not so require.

The fact that it isn't also mentioned in 411 doesn't mean anything at all. Section 46.035 (a) clearly states that if a license holder isn't concealing their handgun, it is required, by law, that the gun must be "carried in a shoulder or belt holster" or the license holder is committing a crime.

Even turning to Title 7. Offenses Against Property, Chapter 30. Burglary and Criminal Trespass, specifically, Sec. 30.07. Trespass by License Holder with an Openly Carried HANDGUN, we find, down in the text:
(f) It is not a defense to prosecution under this section that the handgun was carried in a shoulder or belt holster.

Right. What that is saying is that if you are charged with violating 30.07 (trespass by a license holder openly carrying), you can't claim that you were legally carrying because you had the gun in a shoulder or belt holster. In other words, the trespass violation under Penal Code 30.07 will stand even if you were in compliance with Penal Code 46.035 (a).

 

[Mr. Zorg]

The point is that under Texas law, there are many cases where you don’t need the case even if you don’t have a license.

For a concrete example: a person who does not have a license to carry and wants to go to a grocery store. They can conceal a gun while at home, on their walk out to the car, and on their drive to the store, all without breaking the law. Then they must disarm to go into the store, but the gun can be accessible in the car so long as it isn’t plainly visible (meaning leaving it on the seat with a sheet of paper over it is legal). They can rearm once they are back in their car, and can drive home, no license needed even if it’s in a holster on their person. However, the law doesn’t mention the walk from car to home. Once they are in their home they can carry again.

That little asymmetry bugs me. Walking exactly the same path, between the same two points, apparently changes between legal and illegal depending on which direction you face.

My point being, why push it when there are simple alternatives to how a firearm is transported to a motor vehicle or watercraft outside one's own garage? Your rebuttal to my post doesn't have any element of why to not choose an alternative.

 

[Texasgrillchef]

And how do you know this? Can you cite legal authority supporting it? Are you sure that a Texas judge applying the law hasn't reasoned that the legislature intended by the language in the statute that a gun carried in a belt holster is worn on one's belt and that a gun carried in a shoulder holster is worn on one's shoulder?

You need to stop guessing.

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a shoulder or belt holster by the license holder.

That part bolded.... does specifically say belt/shoulder holster. now as far as being attached to your person.... you are correct that a judge could view that as being a requirement..

However.... as a lawyer would you not file an appeal because the law does not specifically state that? Is it not possible that a judge or jury could find un our favor too?

Many questions remain on laws, and thats why so many appeals are filed, some upheld, some overturned.

 

[JohnKSa]

Does that mean legally you can put a gun in your pocket and carry it in public to your car, you can drive your car around town, you can then go home...but you can’t actually carry it back into your house? It says “en route directly to”, but it doesn’t have a similar statement about going directly from your car.

No, it doesn't mean that at all. Since it is not a crime to carry a handgun "on <your> own premises or premises under <your> control" there's nothing preventing you from carrying from your car to your house unless you decide to park somewhere off your own premises.

Is it not possible that a judge or jury could find un our favor too?

What you're asking, in effect, is: "If someone beats the living hell out of me with a lead pipe and leaves me unconscious, is it not possible that I could recover fully and not show any effects from the severe beating?"

Sure, it's possible. But who in their right mind would go through that just to find out if it's true? And there's really no way to know for sure what the outcome would be without trying it.

You can try it and see what happens. If you're right and you go to court but get acquitted, it will cost you a lot of time, a lot of money--and you might get your name on a case that everyone cites when they talk about TX open carry with a holster. If you're wrong, you will never get a license to carry in TX ever again, and it's possible you might even lose your right to own firearms for the rest of your life. That's besides any fines and jail time you could incur.

In other words, if you really can't carry openly with a belt or shoulder holster as one would normally interpret that phrase, AND you really can't conceal AND you really need to carry, then it might make sense to do what you're talking about. Otherwise, I can't imagine what would make it worthwhile to take that kind of a risk.

 

[Texasgrillchef]

TX Penal Code <46.035 (a)> clearly specifies that a handgun that is not concealed must be carried in a belt or shoulder holster.

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.035

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a shoulder or belt holster by the license holder.​

That section, independent of any other TX law, makes it a crime to openly carry a handgun unless it is carried by a license holder in a belt or shoulder holster.The fact that it isn't also mentioned in 411 doesn't mean anything at all. Section 46.035 (a) clearly states that if a license holder isn't concealing their handgun, it is required, by law, that the gun must be "carried in a shoulder or belt holster" or the license holder is committing a crime.Right. What that is saying is that if you are charged with violating 30.07 (trespass by a license holder openly carrying), you can't claim that you were legally carrying because you had the gun in a shoulder or belt holster. In other words, the trespass violation under Penal Code 30.07 will stand even if you were in compliance with Penal Code 46.035 (a).

But the interesting note is no where does it say that the holster has to be connected
to ones body.

if one can openly carry in a
vehicle, it still has to be in a belt or shoulder holster. In many vehicles it is impossible to keep some handguns in your belt or shoulder holster and still safely drive your vehicle.

I did ask a Denton County Sheriff department deputy tonight. He said they have no official policy. but for him, if the gun is holstered and on the center console or passenger seat of the vehicle. AND they have their LTC. He doesnt or wont say/do anything. Outside of other issues...

 

[Texasgrillchef]

My point being, why push it when there are simple alternatives to how a firearm is transported to a motor vehicle or watercraft outside one's own garage? Your rebuttal to my post doesn't have any element of why to not choose an alternative.

Texas law simply states that one does not need a LTC to carry a weapon openly or concealed on their own property, or proeperty under their control, as well directly enroute between their property and their vehicle or watercraft. Texas law does not specify how one is required to carry that firearm between the vehicle/watercraft and property under their control or where given permission.

Usually though a vehicle will be on your own property so your safe there. watercraft maybe different, unless ur on your own private pond on your property.

 

[Mr. Zorg]

Texas law simply states that one does not need a LTC to carry a weapon openly or concealed on their own property, or proeperty under their control, as well directly enroute between their property and their vehicle or watercraft. Texas law does not specify how one is required to carry that firearm between the vehicle/watercraft and property under their control or where given permission.

Usually though a vehicle will be on your own property so your safe there. watercraft maybe different, unless ur on your own private pond on your property.

And you also haven't chosen to post a reason to choose to push it when reasonable alternatives are available, whether you choose to acknowledge that or not, which you should have understood if not before your post, at least when you chose to use the forum "Quote" or "Reply" feature to copy it into your own post.

 

[JohnKSa]

In many vehicles it is impossible to keep some handguns in your belt or shoulder holster and still safely drive your vehicle.

"Many vehicles"? I hardly think that's accurate. Maybe there is some weird situation where that could be true although I can't think of what it would be. But whatever--let's assume there really is such a situation--it doesn't matter because we know for certain that it doesn't have to be on your person if it is concealed. It could be in a glove box, in a closed center console, or in saddle bags on your motorcycle, or in a bag on the seat next to you or down in the door pocket where it's not visible.

He said they have no official policy. but for him, if the gun is holstered and on the center console or passenger seat of the vehicle. AND they have their LTC. He doesnt or wont say/do anything.

Again, "if you really can't carry openly with a belt or shoulder holster as one would normally interpret that phrase, AND you really can't conceal AND you really need to carry, then it might make sense to do what you're talking about. Otherwise, I can't imagine what would make it worthwhile to take that kind of a risk."

I guess you could talk to every police officer in every area where you go and get them to all sign something saying under what exact circumstances they wouldn't mess with you. Or you could just carry it on your person in a belt or shoulder holster openly--or if that's "impossible" you could conceal it.

 

[Frank Ettin]

...That part bolded.... does specifically say belt/shoulder holster. now as far as being attached to your person.... you are correct that a judge could view that as being a requirement..

However.... as a lawyer would you not file an appeal because the law does not specifically state that? ...

You really don't get it.You don't understand how the law works. You can generally not simply stop at the statute. Case law often clarifies the meaning and application of a statute, and decision of courts of appeal.

I'm going to cut this off now before with go further down the rabbit hole.

I suspect that you really have no idea how to go about legal research. The following resources could help you learn how to do it.

1. https://www.law.cornell.edu/wex/legal_research
   
   
2. http://www.lexisnexis.com/documents/LawSchoolTutorials/20120619103358_large.pdf
   
   
3. https://www.nolo.com/legal-research
   
   
4. https://hirealawyer.findlaw.com/choosing-the-right-lawyer/legal-research.html
   
   
5. http://lawlibguides.luc.edu/firstyearlegalresearch/researchstrategy

I suggest that before you start another one of these threads you take some time to learn something about legal research and how it's done. Then perhaps you can come to the table better prepared to participate constructively in a serious discussion.