Texas Criminal Law Updates Archive | HLAW

Texans love their guns and many folks in Texas are excited about the new “Open Carry” laws that were passed this year. Some people imagine a wild west where handguns are worn on the hips of everyone in town. Other are terrified that gun-related incidents will increase. Well, the new open carry laws do not come without their rules.

With the passage of House Bill 910, beginning January 1, 2016, Texans in possession of a concealed carry license (CHL) will be allowed to openly carry a holstered handgun. While “open carry” sounds simple enough, there is much more to it. This article explains some of the rules that Texans need to know if they plan to openly carry a handgun in 2016.

Who is eligible to openly carry a handgun?

Only CHL holders may open carry. Subchapter H of Chapter 411 of the Texas Government Code sets out the basic requirements for a person to be eligible to apply for a handgun license and openly carry a firearm.

To open carry in Texas, a person MUST:

1) Be a legal resident of the State of Texas for the preceding six months before applying for his or her handgun license;
2) Be at least 21 years of age*;
3) Have never been convicted of a felony;
4) Not be charged with the commission of:
• Class A or B Misdemeanor or equivalent offense
• the offense of Disorderly Conduct or equivalent; or
• a felony offense;
5) Not be a fugitive from justice for a felony, Class A or B Misdemeanor or equivalent offense;
6) Not be a chemically dependent person;
7) Not be incapable of exercising sound judgment with respect to the proper use and storage of a handgun;
8) Have not, in the prior five years before applying, been convicted of a Class A or B Misdemeanor or equivalent offense or of the offense of Disorderly Conduct or equivalent offense;
9) Be fully qualified under applicable federal and state law to purchase a handgun;
10) Have not been finally determined to be delinquent in making child support payments or collected by the attorney general;
11) Have not been finally determined to be delinquent in the payment of taxes or other money collected by the State;
12) Not be currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;
13) Have not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; or
14) Have not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174. (Perjury).

*The age restriction is lowered down to 18 for honorably discharged military veterans who meet all other qualifications.

What types of firearms can be openly carried in Texas?

Currently, under Texas Penal Code Section 46.03, a person cannot carry, either openly or by concealment, a handgun unless that person is on the person’s own premise or inside of a motor vehicle that is owned or under the person’s control (the weapon must still be concealed if carried in a vehicle under 46.03 (a-1)). There is no language in Texas Penal Code 46.03 regarding firearms other than handguns. Therefore, there are no laws prohibiting openly carrying rifles and shotguns (subject to the “where” restrictions to be addressed below). The exception to Texas Penal Code 46.03 is that the provision doesn’t apply to those in possession of a license issued under Subchapter H, Chapter 411 of the Texas Government Code.

In addition to carrying a concealed handgun under Subchapter H, the new House Bill 910 now grants the opportunity for Texans in possession of a concealed carry to openly carry a holstered “handgun.” A “handgun” is defined by Texas Penal Code 46.01 (5) as “any firearm that is designed, made or adapted to be fired by one hand.” Shotguns can be openly carried now in addition to holstered handguns as long as a person is in possession of a license granted under Subchapter H, Chapter 411 of the Texas Government Code.

How can handguns be openly carried?

Use a holster. Under Texas Penal Code 46.15(b) (6), a person carrying a valid CHL may carry a handgun either in a concealed manner or in a shoulder or belt holster. Under these new provisions, if the handgun is carried any other way, a person would be unlawfully carrying the handgun.

Where can handguns be openly carried?

In general, even if a person possesses a CHL, Texas Penal Code 46.03 strictly prohibits the carrying of a handgun or firearm from the following places:
1) School or educational institutions;
2) An election site during regular or early voting;
3) Government or court offices;
4) At a racetrack;
5) Airports (in the restricted section); or
6) Within 1,000 feet of premises of an execution site on the day of an execution.

In addition to the locations listed above, Texas Penal Code 30.06 prohibits individuals, and creates a criminal offense of trespass, for those who hold a license to carry a handgun when notified that their presence on the property with a handgun is expressly forbidden. To provide notice, a property owner must display written notice on the property that specifically complies with the notice requirements of Texas Penal Code 30.06.

With the new Open Carry law, those that wish to prohibit others from carrying a handgun on their premises, must also post a notice in accordance with section 30.07 of the Texas Penal Code.  This notice is in addition to the 30.06 sign.

Conclusion

The term “open carry” has been loosely thrown around as new legislation has been debated and ultimately passed regarding openly carrying handguns. It is important to remember that “open carry” isn’t a free-for-all regarding handguns. “Open Carry” is still highly regulated and a person considering openly carrying a handgun should be familiar with all of these new laws and regulations, so that they do not end up needing our services.

Luke Williams is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas.

Barnett Howard & Williams PLLC
500 Main Street, Suite 610
Fort Worth, Texas 76102
www.bhwlawfirm.com

Tarrant County Veterans Court Programs | Fort Worth Criminal Defense Lawyers

Texas has more military veterans than any other state. In the wake of the recent wars in Iraq and Afghanistan, many have difficulty transitioning from military service to civilian life. Some veterans suffer from PTSD or Traumatic Brain Injuries and others fall into addiction. Plagued by these ailments, some Texas veterans find themselves in the criminal justice system.

Recognizing a need, Texas has led the nation in addressing veteran criminal issues through special courts. Beginning in 2009, these court were designed to provide treatment and accountability for veterans in an effort to keep them out of the criminal justice system. There are currently 20 veterans courts in the state.

Under current law, which created the veterans courts programs, only veterans who suffer from an injury received while serving in a combat zone or other similar hazardous duty area are eligible to participate in a veterans court. Some veterans that have suffered similar injuries the occurred outside of a combat zone are not eligible despite the fact that the struggle for rehabilitation remains the same.

This has been a point of frustration for Fort Worth criminal defense attorneys who regularly handle cases involving Texas veterans.  We were often met with opposition when trying to admit a veteran to the specialty court program.

New Legislation Expands Veterans Court Eligibility

S.B. 1474, which takes effect on 9/1/15, broadens the eligibility for veteran participation in these special courts. The bill would provide the courts with more flexibility over who was admitted into the program by removing the requirement that any illness or injury have occurred "in a combat zone or other similar hazardous duty area." There is also another provision that gives courts discretion to admit a veteran if he/she does not fit any of the other categories. Finally, the amendments allow a veteran who is being supervised by a veterans' court program to transfer counties to another program if desired. These are all good changes that will help veterans and make these specialty courts worthwhile.

See the 2015 Veteran's Court Update.

Legislative Changes to Texas DWI Laws | Fort Worth DWI Defense Attorneys

DWI Update:  Some clients want to see their DWI video.  Some don't.  Some want to take it home and show their friends and some want to dig a deep hole and bury it away forever.  Since the passing of the Michael Morton act, regardless of their clients' wishes, criminal defense lawyers could not provide a copy of the DWI video without first obtaining a court order or prosecutor permission.  This all changes on 9/1/15.

This past legislative session, the Texas legislature passed House Bill 3791 which amends Chapter 2 of the Texas Code of Criminal Procedure by adding the following paragraph:

Art. 2.139. VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES.

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;

(2) the arrest;

(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or

(4) a procedure in which a specimen of the person's breath or blood is taken.

Now (beginning 9/1/15) DWI defendants are entitled to receive a copy of the DWI video (if they want it).  There is no clarification regarding whether the defense attorney, or the DA may provide the copy, but at a minimum it may come from the police agency.

DWI Trial Lawyers | Free Consultations

Barnett Howard & Williams PLLC practices DWI defense in Fort Worth, Texas.  Our office is located in Sundance Square in downtown Fort Worth.  Call (817) 993-9249 for free consultation of your DWI case.

Changes to Texas Theft Laws | Fort Worth Theft Crimes Attorneys

• Theft Under $50 Theft Under $100
• Theft $50 - $500 Theft $100 - $750
• Theft $500 - $1,500 Theft $750 - $2,500
• Theft $1,500 - $20,000 Theft 2,500 - $30,000
• Theft $20,000 - $100,000 Theft $30,000 - $150,000
• Theft $100,000 - $300,000 Theft $150,000 - $300,000

The new values for these offenses will apply to all offenses committed on or after September 1, 2015.  For offenses that pre-date 9/1/15, that theft offenses will remain under the old statutory scheme.

The New Value Ladder

The Texas Penal Code uses a standard value ladder in cases of theft and many other property and economic crimes to determine the grade of an offense. On September 1, 2015, HB 1396 changed the standard value ladder for theft in Texas—this is the first time this has happened since 1993. Under the value ladder, as the value of property lost increases, the seriousness of the crime increases. Below are the updated values:

• Under $100 is a Class C Misdemeanor;
• $100 or more, but less than $750 is a Class B Misdemeanor;
• $750 or more, but les than $2,500 is a Class A Misdemeanor;
• $2,500 or more, but less than $30,000 is a State Jail Felony;
• $30,000 or more, but less than $150,000 is a Third Degree Felony;
• $150,000 or more, but less than $300,000 is a Second Degree Felony; and
• More than $300,000 is a First Degree Felony.

The change in law also includes a savings clause. This clause provides that the change in law applies only to an offense committed on or after the effective date of the article. As such, an offense is committed before the effective date of the article if any element of the offense occurs before the effective date. This savings clause is an important factor when dealing with aggregate theft.

What is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts are combined to determine the grade of the offense. Tex. Penal Code § 31.09. Pursuant to Section 31.09 of the Texas Penal Code, aggregate theft may be considered as one offense—it is a sum of all its parts. The Court of Criminal Appeals has held that the State need only prove beyond a reasonable doubt that the defendant unlawfully appropriated enough property to meet the aggregated value alleged. Since the value alleged will determine the grade of offense charged, applying the correct statute is essential.

How Does the New Value Ladder Apply to Aggregate Thefts?

The Court of Criminal Appeals has held time and time again that we are to interpret statutes in accordance with their plain meaning unless the language is ambiguous or the plain meaning would lead to absurd results. Thus, applying the plain meaning of the savings clause found in Section 31.09, the former law’s penalties apply to the offense of aggregated theft if any element of a continuing theft was committed before the effective date of the new law. The Court of Criminal Appeals held that this “interpretation does not lead to absurd results because one could reasonably conclude that the legislature intended for the old penalties to attach to a scheme or continuing course of conduct that was begun before the effective date of the new law.” Dickens v. State, 981 S.W.2d 186, 187-88 (Tex. Crim. App. 1998). Thus, if a defendant is being charged with aggregate theft and any element of their charge occurred before September 1, 2015, former law will apply to determine the grade of the offense.

Theft Crime Defense Lawyers | Fort Worth Criminal Defense Firm

The Fort Worth criminal defense attorneys at Barnett Howard & Williams PLLC handle all ranges of property crimes from simple shoplifting to armed robbery and everywhere in between. If you are under investigation for a property or theft offense or have already been charged, contact Barnett Howard & Williams PLLC today for a free consultation of your case at 817.993.9249.

Years ago, I was employed as an assistant district attorney in a DA's office out in West Texas. From time to time, I would oversee the grand jury and the presentation of felony cases for indictment. At the first of every month, the county would summon potential jurors from a random selection process to serve on the grand jury. The first fourteen (twelve to serve as grand jurors and two as alternates) who were not disqualified by statute were seated on the grand jury.

Those fourteen citizens were always different. Different ethnicity. Different gender. Different religions. Different socio-economic status. Most importantly, different political parties. The goal was to create an impartial jury of peers to review the evidence in criminal cases and determine whether probable cause existed for indictment.

You can imagine my surprise when I moved to the DFW area and discovered jurisdictions here which used the other method of selecting grand jurors.

Article 19.01 of the Texas Code of Criminal Procedure allows the "pick a pal" method wherein judges can hand pick "jury commissioners" who individually select citizens to serve on the grand jury. As you can imagine, there has been a serious influence of politics on the grand jury process a result of this practice. It's hard to have an impartial grand jury when everybody comes from the same political party and economic sector of society.

Fortunately, House Bill 2150 was signed into law last month. On September 1, 2015, the "pick a pal" process will no longer be an option. Instead, the newly revised Article 19.01 will require all jurisdictions to apply the random selection process to the grand jury selection process.

This change is long overdue. An accused's right to an impartial jury should be the same at the grand jury as it is at trial.