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Texas Gun Laws Contain Some Curious Loopholes (No Pun Intended)

Texas Gun Laws Contain Some Curious Loopholes (No Pun Intended)

The law in Texas governing firearms is an intricate web of who, what, when, where, why, and how. For example, different laws apply to a person who is licensed to carry a handgun and a person who is not, to handguns and long guns, to times when certain events are occurring and when they are not, to buildings and parking lots, to firearms which are carried in the actual discharge of certain official duties and those which are not, and to concealed and openly carried handguns.

Frankly, a flow chart for determining whether a person carrying a firearm is breaking the law or not would look like a Chutes and Ladders game board on steroids. The law is so complicated, in fact, that at one time, bailiffs were prohibited from carrying firearms into the courtrooms of the judges they were assigned to escort. You’ll be happy to know that the Texas Legislature has since fixed that. However, the law is still complicated enough that someone intending to prohibit certain persons from possessing firearms in or on their property may unwittingly prohibit other persons from possessing firearms in or on their property—such as certain police officers. Let’s take a closer look at how this can happen.

Federal law generally permits a qualified law enforcement officer who carries proper identification to carry a concealed firearm; however, this law does not supersede or limit any state law that permits private individuals to prohibit or restrict the carrying of concealed firearms on their property or that prohibits or restricts the possession of firearms on any state or local government property. Texas has both types of the state laws excepted from this Federal law. Specifically, section 46.02 of the Texas Penal Code essentially prohibits a person from carrying a handgun off of their own property.

Conversely, section 46.03 prohibits a person from carrying a handgun onto certain other properties, such as schools, polling places, and courts. Police officers—or “peace officers” as they are referred to in the law—are specifically excepted from both section 46.02 and section 46.03. However, if a peace officer happens to also be a person licensed to carry a handgun, as many peace officers are, then section 46.035 of the Texas Penal Code applies to them. Section 46.035 prohibits a license holder from carrying a handgun onto certain properties such as hospitals, amusement parks, and churches, but some such properties must give the license holder effective notice that carrying a handgun is prohibited for the prohibition to apply. Thus, if a property owner gives effective notice intending to prohibit the carrying of handguns by ordinary license holders, they may be inadvertently be prohibiting police officers from carrying handguns if they are also license holders.

Similarly, sections 30.06 and 30.07 of the Texas Penal Code authorize private property owners to prohibit license holders from carrying concealed and openly carried handguns, respectively, on their private property by giving effective notice. Again, if a private property owner gives such notice, then they may be inadvertently prohibiting license holding police officers from carrying handguns on their property, in addition to ordinary license holders.

Perhaps the law prohibiting police officers who are also license holders from carrying handguns in certain places needs a quick fix from the Texas Legislature like the fix they provided for bailiffs to be able to carry handguns in their courtrooms. On the other hand, perhaps the laws prohibiting license holders from carrying in certain places should just be repealed altogether, since crime rate data indicates that license holders commit fewer crimes than police officers do. Alas, it is not for me to decide. Molon Labe.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.

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