Changes In the Texas CHL Laws, Sept 97
During the most recent legislative session, the Texas Legislature passed two bills, HB2909 and HB311 which amended law relating to the concealed handgun license. Gov. Bush signed these two bills into law on 6/20/97. HB2909 was the main bill, and HB311 repeated sections of HB2909 and went into effect immediately. HB2909 will not go into effect until 9/1/97. Here's a partial summary of the changes to Article 4413 (29ee):
APPLICATION AND ELIGIBILITY
- Eligibility for a Texas CHL is extended to persons convicted of a disqualifying crime, but only those who have had their record expunged (eg. the conviction of the record removed), or have been pardoned for any reason.
- The mental illnesses that can disqualify a permit applicant are more precisely defined, and the DPS medical review board is given authority to evaluate applicants.
- Law enforcement agencies may designate third parties (who are qualified to take fingerprints) to do the fingerprinting for CHL applications.
- The background investigation must be completed within 60 days after receipt of the application materials by the DPS. DPS may conduct any further investigation it deems necessary, but only if there is a question about the application materials or the eligibility of the applicant. They cannot postpone it for an indefinite reason, and in any event, they may not delay completion beyond 180 days after receipt of the application.
- DPS is to investigate a written recommendation by an instructor to deny a CHL, and imposes a time limit of 45 days to make the determination, extending the 60-day limit for issuance as necessary to complete this aspect of the investigation.
- The minimum caliber allowed for the proficiency examination is now .32. The CHL application fee for instructors is now $100.
- If an instructor's permit is revoked, his or her instructor certification will also be revoked.
- For honorably retired peace officers, the head of the appropriate law enforcement agency must issue a sworn statement about the retiree/applicant, and DPS must investigate a negative recommendation.
- The law now provides for issuance of a CHL to active peace officers, with procedures similar to that for retired peace officers.
- Retired federal officers are now eligible, provided that they were eligible to carry a firearm while on-duty.
SUSPENSION AND REVOCATION
- The requirement for a CHL holder to carry their CHL with them at all times, even when not armed, had been removed.
- A CHL is only to be suspended (rather than revoked) if a person is charged with the commission of a crime which would render him/her ineligible for a CHL upon conviction. DPS is required to reinstate the CHL of anyone who had it revoked solely because they were simply charged with the commission of a crime. If the charge is still pending, they must leave the CHL on suspension, or completely reinstate it if the charge was dismissed.
- A CHL is suspended if the holder is charged with a Class A or Class B misdemeanor, any offense under PC 42.01 (Disorderly Conduct), or a felony. A CHL is reinstated if the CHL holder is cleared of the charge, or revoked if the CHL holder is convicted of the charge.
- Penalties for a number of infractions have been reduced:
- * 30-day suspension for failing to notify the DPS of a change in address, carrying a semi-automatic with a CHL limited to non-semi-automatic, or failing to return a previously issued license after modification.
- * 90-day suspension for failing to volunteer your CHL when armed if asked for ID by a peace officer or magistrate, but only for the first infraction. A second occurrence of this infraction is considered a Class B misdemeanor and will result in revocation.
- * 1-3 year suspension for a a second occurrence of a infraction that has previously resulted in a 30-day suspension
- * An earlier section specifies that a third occurrence of an infraction that previously resulted in a 30-day suspension, then a 1-3 year suspension, will result in revocation of a CHL.
ALCOHOLIC BEVERAGE CODE
- The requirements of posting a 'No Guns' sign is extended to brewpubs (Chapter 74), and gives the Texas Alcoholic Beverage Commission the responsibility for establishing rules (by 10/1/97) for determining if a particular business derives 51% or more of their income from alcoholic beverages for on-premises consumption.
- Those businesses must post a sign with a '51' in five-inch red letters, along with a further explanation in one-inch letters (in English and Spanish) that a CHL holder is prohibited from carrying a handgun on the premises. They are required to post the '51' sign until after the TABC has made the determination. They must also exclude armed CHL holders from their premises.
- For businesses that derive less than 51% of their income from the sale of alcoholic beverages for on-premises consumption must post a sign that gives notice that possession of a weapon is unlawful unless you are a CHL holder. They are not required to exclude armed CHL holders from their premises.
RECIPROCITY AND NON-RESIDENT LICENSES
- DPS is required to establish the procedure for recognizing an out-of-state CHL in Texas and begin any necessary negotiations for mutual reciprocity by 12/1/97.
- * If your state does not issue a CHL, you may apply for a Texas CHL. However, you must meet all eligibility requirements imposed on Texas residents by Article 4413(29ee), except for the residency requirement.
- * If you have a valid CHL from another state and the eligibility requirements meet or exceed the requirements imposed by federal law for receiving a handgun, and that state also recognizes a Texas CHL, your CHL will be honored in Texas.
- * There is no provision for applying for a non-resident Texas CHL if your state does not meet the federal eligibility requirements. This will probably affect only those states with discretionary CHL policies.
- * There is no requirement that your out-of-state CHL be issued by your state of residence.
NOTE: since this was originally written there have been other changes regarding reciprocity. Email us for current information as the list of states that have reciprocity with Texas continues to change and expand.
CRIMINAL TRESPASS AND 'NO GUNS' SIGNS
- A new section (PC 30.06) of Criminal Trespass law applies only to the CHL holder when armed. It isn't explicitly clear that this new law supersedes PC 30.05, but it is reasonable to expect a judge/jury to interpret it as such after reviewing the history of the enactment of these laws and the Texas Attorney General's opinions on the issue. PC 30.06 is essentially the same as PC 30.05, except that it mandates that written notice take a specific form. It must contain specific wording in both English and Spanish and be printed in block letters at least 1-inch high. Due to the required wording and size the sign will be about three feet wide, and two feet high. Because of this, many people currently posting 'No Guns' signs will probably decline to post this sign mandated as of 9/1/97.
- An interesting point to consider is that this new law prevents a CHL holder from being prosecuted for Criminal Trespass past a generic 'No Guns' sign, but it does not exempt non-CHL holders -- including 'peace officers'. On the other hand, a sign meeting the requirements for PC 30.06 does not apply to non-CHL holders.
- A long list of exceptions from 'defenses to prosecution' are moved from Penal Code 46.02 to a section of 46.15 entitled 'Nonapplicability'.
- A few more classes of people were exempted from both PC 46.02 and PC 46.03: on-duty parole officers, on-duty community supervision and corrections department officers, judges with CHLs.
- The Texas Attorney General published an opinion that the definition of premises in PC 46.035 did not extend outside that provision of law. In PC 46.03, there was no definition of premises, and therefore it defaulted to a general legal definition that encompassed everything out to the property line. As a result, carry of a handgun in your car while picking up your kids in a school parking lot was a third-degree felony. This section extends the definition of 'premises' in PC 46.035 to be operable in PC 46.03 as well, and therefore resolves this problem.
- This extension of the definition of 'premises' does not apply to private property where bans are instituted by the owner. A property owner may ban the possession of firearms by anyone or everyone all the way out to their property line, as long as they meet the requirements in PC 30.06 for providing notice. HB 311 made a nearly identical change to this provision of law, and those changes were effective 6/20/97.
- Another change was added at the last moment on the floor of the Senate just before passage that has an enormous effect. The specified subsections refer to a hospital/nursing home, an amusement park, a church/synagogue, and a 'meeting of a government entity', respectively. If the owners of these premises choose to not provide notice of the prohibition against carry of handguns by CHL holders in the same manner mandated by PC 30.06, then the prohibition does not apply. That means that a CHL holder cannot be prosecuted for the offense.
- Section 31 of Article 4413(29ee) requires that hospitals and nursing homes post a sign which duplicate the requirements in PC 30.06. However, there is no penalty for failing to do so. There is no requirement at all for amusement parks, churches/synagogues, or government meetings. So, aside from the implied civil liability for negligence in failing to post a sign (if a CHL holder were to injure someone), the choice now rightfully belongs to the owner of these premises.