Concealed Carry in Texas and the Hobby

[BDD]

In conversations with other hobbyist, I have been told that if a hobbyist or provider in Texas has a permit to carry a concealed handgun and is caught up in a sting operation, the charge will be upgraded from a misdemeanor to a felony. I have heard this is true even if the hobbyist or provider is carrying a firearm or not.

Is this true? What are the legal consequences one would face in this type of situation.

A few things.

1. This is hypothetical. I know of no one this has happened to.

2. We all know that the best thing to do is to avoid such a sting. No need to point that out.

3. I am most interested in what ShysterJon has to say about this, as I respect his reasoned viewpoint of the law .... and I adore his avatar and the story behind it.

[cckid2006]

http://www.statutes.legis.state.tx.u....46.htm#46.035

Like most laws, not clear cut, but I think the key is if they are set-up in a hotel/motel that serves alcohol, you will probably lose your license. Hopefully SJ will comment.

[ShysterJon]

I THINK BDD is asking the following questions related to Texas laws governing the legal concealed carrying of handguns, and he can correct me if I'm wrong:

Questions

1. If a person with a concealed handgun license (CHL) is legally carrying a handgun when committing the offense of simple prostitution (which is a misdemeanor), can the charge be ungraded to a felony?

2. If a person with a CHL is arrested for prostitution but was not carrying a handgun at the time of the arrest, can the charge be ungraded to a felony?

I assume BDD mentioning a sting operation has no legal significance to his question. For example, it shouldn't matter to the analysis whether the CHL-holder is arrested for prostitution in a sting operation or otherwise. It also shouldn't matter whether the person arrested for prostitution is a hobbyist or provider.

Answers

1. No. There are offenses specific to CHL-holders, such as carrying a concealed handgun while in certain places, such as a polling place, amusement park, or business that derives at least 51 percent of its income from the sale of alcoholic beverages. (The places are listed in Texas Penal Code § 46.03 ("Places Weapons Prohibited"), and Texas Penal Code § 46.035 ("Unlawful Carrying of Handgun By License Holder"). But those statutes don't directly apply here.

I’m aware of only one Texas law that aggravates an offense only because the offender was legally concealed-carrying: Being "intoxicated." Penal Code § 46.035(d) states: "A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed." Penal Code § 46.035(g) states that concealed-carrying while intoxicated is a Class A misdemeanor (a Class A misdemeanor is punishable by up to one year in county jail and a $4,000 fine, or both.) So for example, if a CHL-holder was publicly intoxicated while concealed-carrying, the offense of public intoxication (a Class C misdemeanor) could be enhanced to a Class A misdemeanor.

The Texas Department of Public Safety website implies that there are other places where a CHL-holder is prohibited from concealed-carrying under Texas Penal Code § 46.02 ("Unlawful Carrying [of] Weapons"). THIS IS WRONG. Texas Penal Code § 46.15(b)(6) states: "Section 46.02 does not apply to a person who ... is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun." Moreover, § 46.03 specifically states that it DOES apply to CHL-holders (see § 46.03(f)), while § 46.02 obviously has no such language.

To me, the real question is, If a CHL-holder is concealed-carrying while commiting a crime (including prostitution), is the level of the offense enhanced, or would it be a separate offense? I think not. The DPS website states: "It is against Texas law to carry a concealed handgun if the person … is engaged in a criminal activity (other than a Class C traffic offense)." THAT IS A FALSE STATEMENT, ON ITS FACE. The statute, Penal Code § 46.02(a-1)(2)(A), states: "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 … the person is engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating." Again, § 46.02 doesn't apply to CHL-holders, but even if it does, it would only make it a crime for a CHL-holder to conceal carry while operating a motor vehicle or boat while engaged in another crime.

2. No. If there's no upgrade to a felony if a CHL-holder was concealed carrying while hobbying, it logically follows there'd be no upgrade if the CHL-holder wasn't carrying.

[ShysterJon]

Originally Posted by cckid2006

http://www.statutes.legis.state.tx.u....46.htm#46.035

Like most laws, not clear cut, but I think the key is if they are set-up in a hotel/motel that serves alcohol, you will probably lose your license. Hopefully SJ will comment.

I don't agree. CHL-holders are barred from businesses that derive 51 percent or more of their income from the sale of alcohol, not all businesses that sell alcohol. I doubt there's any hotel or motel that meets this criteria. But it's an interesting question whether a hobbyist in a strip club might get hit with two charges, prostitution and the unlawful carrying of a weapon.

[BDD]

Thanks ShysterJon.

[skbinks]

Originally Posted by ShysterJon

But it's an interesting question whether a hobbyist in a strip club might get hit with two charges, prostitution and the unlawful carrying of a weapon.

Seems to me that more money is spent on lap dances, etc, then on booze in a strip club. I know when I used to go to them I'd spend at least 75% on other than booze.

Yes, I know that money probably doesn't count. It's just something "I" thought was a funny way to look at it.

[MrThom]

I really don't know the legalities of it, but think it best not to be carrying while drinking, or hobbying.

[cabletex7]

edit: in response to skbinks post

^^^Lap dances are income for the strippers, not the club. Strippers are generally independent contractors. Most clubs require some payment for the privilege of dancing but this is a nominal amount. Plus doubt most of it even gets reported. BTW, this is not the same as stripper tips to the managers which go directly to the manager. So, I would expect drinks make up the bulk of the income.

BTW OP and SJ, interesting question and answer. Thanks.

[Lechertoo]

Originally Posted by ShysterJon

I don't agree. CHL-holders are barred from businesses that derive 51 percent or more of their income from the sale of alcohol, not all businesses that sell alcohol. I doubt there's any hotel or motel that meets this criteria. But it's an interesting question whether a hobbyist in a strip club might get hit with two charges, prostitution and the unlawful carrying of a weapon.

The business has to post the 51% sign. Be sure and look for it, if it is posted leave the gun in the car.
Depending on where the sign is posted, the entire hotel would not be off limits just the bar area.

[cckid2006]

Originally Posted by ShysterJon

I don't agree. CHL-holders are barred from businesses that derive 51 percent or more of their income from the sale of alcohol, not all businesses that sell alcohol. I doubt there's any hotel or motel that meets this criteria. But it's an interesting question whether a hobbyist in a strip club might get hit with two charges, prostitution and the unlawful carrying of a weapon.

Forgot about the 51%. Would not apply for hotels and you pose an intriguing questions about SCs especially since most clubs post none allowed! Can they prosecute if you packing in the SCs? After further review, I see where your coming from - illegal carry. Did think it was for sure you would lose your license.

[cckid2006]

Originally Posted by Lechertoo

The business has to post the 51% sign. Be sure and look for it, if it is posted leave the gun in the car.
Depending on where the sign is posted, the entire hotel would not be off limits just the bar area.

Did not see that requirement in the statute - maybe a another stupid TACB rule.

Their regulations are total arbitrary and go way beyond the statutory requirements, but who has the money to contest them? The business that needs the permit?

Not likely if you want to stay on business.

[ShysterJon]

Originally Posted by cckid2006

Forgot about the 51%. Would not apply for hotels and you pose an intriguing questions about SCs especially since most clubs post none allowed! Can they prosecute if you packing in the SCs? After further review, I see where your coming from - illegal carry. Did think it was for sure you would lose your license.

Yes, it's an offense for a CHL-holder to conceal-carry in a business that has posted a sign barring the carrying of handguns if the sign contains the language in the statute.

[ShysterJon]

Originally Posted by cckid2006

Did not see that requirement in the statute - maybe a another stupid TACB rule.

Their regulations are total arbitrary and go way beyond the statutory requirements, but who has the money to contest them? The business that needs the permit?

Not likely if you want to stay on business.

No, it's not a TABC rule. It's in Penal Code Section 46.035(b)(1):

"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, regardless of whether the handgun is concealed, on or about the license holder's person on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code."

[cckid2006]

Originally Posted by ShysterJon

No, it's not a TABC rule. It's in Penal Code Section 46.035(b)(1):

"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, regardless of whether the handgun is concealed, on or about the license holder's person on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code."

I was responding to the poster's assertion that the specific notice posted be posted to make the CHL in violation of the law. I didn't see the specific language in the "statute." Typically, those requirements are written into the rules propagated by the agency trying to incorporate the statute. So I think technically they are considered part of the law after a comment period in the Texas Register and adoption by the agency, but they can still be challenged on appeal to the courts which usually takes at least 5 years.

BTW - I'm not an attorney, I've just been involved in the rule writing process.

[seduceme2night]

Why would you want to carry in a SC? Nothing good can ever come from that.