[ARCHIVED THREAD] - JAdams...a question (Page 1 of 2)
Posted: 10/11/2005 1:18:00 PM EDT
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If you pull over a guy for speeding. He's cooperative. Seems sober, has a concealed handgun license, gun is in the glove box, secure. You have him step out to get the ticket written, and you notice he has a sap/blackjack/leather slapper in his door panel. It's illegal to carry. He's not carrying it. It looks like he has it for protection in the event someone attacks him in the vehicle. Do you arrest him for possession of the sap? Do you care since it's just in his car? Ok, Same quetsions, only instead of a SAP, you see a big ole Kabar Marine combat knife in the door panel pocket. Arrest him? It's illegal to carry that knife, unless you're hunting. He's got a tie on and is driving home from work, just a bit too fast. Ok, same scenarios, no CHL. Any different? I carry a sap in my door panel. I want to know if I'll get a misdemeanor for having it in the car if I were to get stopped.... Thanks Coz_45 |
FWIW, You are carrying it while you are in the car, since it is "on or about your person". |
I think a good lawyer could beat that one...."on or about?" |
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I hate to yell you, but DevL and the others are correct. Last time I looked, PC 46.02 said that a person commited an offense if he "carried on or about his person...". Anywhere under your care, control, or custody normally qualifies as "about" With VERY few exceptions, anything inside your vehicle is considered to be considered in your "care, control, or custody." The U. S. Supreme Court has previously ruled that a peace officer can pat down anyone they interview to search for weapons only (Terry V: Ohio). They also have extended this search to include any area where you can lunge or reach, such as the unlocked compartments / area inside a passenger vehicle. If the peace officer happens to find illegal drugs while looking for weapons, you can bet you would be charged with that as well. Next, look at intent: was this carried inside the vehicle intentionally, knowingly, recklessly, or criminally negligently? If it was, there is your culpable mental state. I hate to be the bad guy on this, but if you are carrying an illegal weapon inside your vehicle, especially in an "unsecured" state, then you can, and probably will, be arrested. I personally have placed individuals in jail for just such offenses. Best idea is to leave the "illegal" stuff at home... Do I agree with these laws? Not entirely. But they are the laws, and they will most likely be enforced. |
Maybe if your lawyer is Gerry Spence. The Texas Court of Criminal Appeals ruled in 1916 in Wagner vs. Texas that a weapon is "about" one's person if the weapon can be reached without materially changing one's position. |
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On or about means just that, on or about. If you are in the car and your weapon is in the car, it is considered on or about. Now, if you are carrying a pistol under the license of a CHL, then it may be legal. You can certainly beat the rap, by paying me a shitload of money, but you ain't gonna beat the ride of the cop is a john-in-austin type. 
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Devl wrote:
this issue has been discussed at length on packing.org: http://www.packing.org/oldnews/article/?article=6680 that poster on packing.org says he has found the law exempts a CHL holder from 46.02 PC which states "a person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club." he makes the claim that if you are carrying with a valid CHL and you have your handgun in your possession (SA or NSA, accordingly), then by letter of the law you are exempt from the entire 46.02 law. it is a very interesting argument. i am a CHL instructor and will request a letter from TX DPS CHL Unit explaining this and asking for a written interpretation of the law. of course, i wouldn't want to be the guy making case law on this. however, the section states:
it appears that it is specifically allowing the CHL holder to be exempt only on the carrying of a firearm of the same category as listed on the CHL. either way i just faxed the letter off to the DPS, i'll let you know. i did speak to two cop friends of mine, they said that they would arrest for the unlawful carry of the club or illegal knife, and that the CHL does not afford an exemption to carry either weapon. it is convoluted wording, but the last statement above which states: "to carry a concealed handgun of the same category as the handgun the person is carrying" appears to be singling out the only part of 46.02 that you are exempt from (the handgun part). the bottom line at this point seems to be that at the very least, you're looking at getting arrested. 
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Damn dude...why you got to ask so many questions in so many twisted ways. It's too late and I'm too tired to make a true response so I'll keep it simple. Fuck em all...they all going to jail. |
Is this for real? I can carry an Auto knife since I have a CHL and a handgun? Whats the logic behind this???????? YES!!!!!! |
Coz and others.... At the Hun farm, or some other place convenient, I can do a small session on knife defense. A 5 1/2 legal knife can be a great weapon....without having to play gotcha with the law. On another topic.... This is a great tool for digging your car out of the Texas snow.... This is a great tool to get out of your car in case of an accident....  Back to my original point....If ya'll are interested in improvised weapons, we can do a session on that also. There are a lot of ways to defend yourself in your car without playing with the strange Texas illegal weapon laws (e.g., illegal bowie knife) Jeff |
LOL...Houston is a harder place for me to visit my folks, now... 
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Great idea, Jeff....Get to the Hun farm or monthly dinner when you can. |
FredM wrote:
Well, according to two police officers I spoke to last night regarding the matter, no you cannot. According to the CHL instructor class txinvestigator just took on his recertification for his instructor's license, no, you cannot. according to a few AR15.commers, the law is ambiguous. HK940 says you can. i do not know if HK940 is an attorney, and if he would be willing to represent you in court if in the event he is an attorney if you got arrested and charged. the logic is in the ambiguous wording of 46.02 PC that states a person in possession of a valid CHL and the appropriate pistol (SA or NSA) is exempt from either all or part of 46.02. 46.02 lists "clubs, prohibited knives, and handguns" as being prohibited. the big question is, does the CHL allow complete or only partial protection from arrest/prosecution of 46.02 PC? i am a CHL instructor. i submitted a fax to DPS/CHL Unit last night requesting written clarification on this matter. |
Don't misrepresent the position because you do not agree with it. The law is not ambiguous, it clearly states that 46.02 does not apply if you are carrying a valid license and a valid handgun. BTW FREDM, an auto knife is a prohibited weapon, not an illegal knife, so you would be in violation of 46.05 if caught with it. |
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I threw the damn thing to the back compartment (unreachable) in my SUV. Because, even if I, being a CHL holder, am legal under the law, I'd rather not get busted and go to jail. So, that takes me from able to slap a disgrunteld bad guy on the bridge of his nose with a sap, thus ruining his day and his shirt from the blood, to shooting the bastard and killing him. Makes perfect sense. 
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Prohibited weapon? I don;t think so. Its the same as a Bowie knife. |
By "auto" I thought you meant "automatic" which is essentialy a switchblade. If it was a Bowie knife you should have just said Bowie knife. |
yeah i meant a switchblade. Its the same as in they are both illegal knives. Legal to own, illegal to carry. |
No, they are not the same, which was my point. A switchblade is defined under § 46.05. PROHIBITED WEAPONS, while a Bowie knife is defined under § 46.01. DEFINITIONS (6). Different weapons, different rules for own/carry. |
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I really don;t have time to re-hash this: 1. Read the statute. 2. Apply the statute in the way it reads. Since no one here has tried that, why don't we doi it as a class exercise. Now, for the lawyers here: Can anyone cite the method in which a statute is interepreted? |
Any comments? How about someone post the relevant statues in quotes so we can read them with this in mind? |
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I can make a pretty "ordinary English" reading that 46.02 does not apply if you are carrying a concealed handgun and have your license, but that it DOES apply if you are carrying an illegal knife, a concealed handgun, and your license. But I'm neither an attorney or a legislator, and don't really care that much since I don't carry illegal knives with me (nor has my CHL arrived yet!). |
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Another exemption is if you are a unifirmed security officer and you are going to or from or are in commission of you duties as a security officer. It does not say you can have a gun and club as a security guard but not knife. It says the statute no longer applies. THat means security guards can carry guns AND clubs. You must not know how to read if you cant see that it states THE LAW DOES NOT APPLY. Nowhere does it say that it applies ONLY to handguns. Nowhere does it say secuity guards can only carry a club but not a piston or pistol but not club or one but not the other. It says THE ENTIRE LAW does not apply. That is the LETTER OF THE LAW. There can be no "DPS official interpretation" its just the law and DPS has no power to interpret that law. It does not matter what they say. We discussed this at the meeting last night and switchblades are NOT illegal knives. They are another type of "prohibited weapon" as was already stated. |
This is why attys exist. Nowhere in plain English does the law say that. PLease quote me the expemtion you are reading. I dont see it. Also explain how a security guard can carry a gun and a club without a special exemption. Or does that only apply to guns, or to clubs, or to either, etc... ALSO how come its legal to carry a hunting knife if you are hunting with this exemption AND a gun (neither of which is specified as gun/knife but not club) etc. |
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I don;t see what is unclear in this case. READ: non-app;licability. Please, read it out-loud. SECTION 46.02 DOES NOT APPLY IF. . . . Now, what is unclear about this? Please, tell me as I am all ears. Specifically, ask yourself what PART of 46.02 DOES NOT APPLY IF . . . Well, it says that 46.02 DOES NOT APPLY. That means that the WHOLE of 46.02 does not apply. If the legislature wanted only a SPECIFIC part of 46.02 to NOT APPLY, they would have said so. WHEN: Now, what conditions MUST EXIST for 46.02 to not apply . . . .
Once again, please explain, in plain english where there is a limiting factor that limits the non-applicability of 46.02. In short, the legislature, who could have narrowed the nonapplicabilty of 46.02 to concelaed handguns, didn't limit the non-applicability of 46.02 to handguns. They stated, CLEARLY, that 46.02 DOES NOT APPLY IF . . . Now, am I saying that you can avoid the ride to jail and an indictment? Nope. Am I saying tha tI think you can beat the raop. Hell yes. Am I saying that I would take your case for free . . .Hell no. |
I'm reading:
as protecting you from prosecution if you are carrying a handgun. I don't see how it protects you from prosecution if you are carrying a knife. There would simply be no reason for the legislature to pass a law that says "you can carry an illegal knife, but ONLY if you have your gun". The reason you can carry the hunting knife while hunting is that it IS a tool that's used for hunting, and thus falls under exemption (4). The exception for the security guard basically says you can carry any of the weapons while you are working (that's why it doesn't specifically say gun). |
Since everyone seems to have passed over your question, i'll answer it. Yup, when you alter something into a weapon, or USE it as a weapon in an unaltered state, it's original definition no longer applies. Ask me about the guy that converted a flounder gig into some sort of ninja weapon sometime. He wrapped it in electrical tape and fastened a solid brass ball (skull crusher) to the top, Then tried to pretend he was going fishing when we found it.. (4 hours from the coast) As for security guards, I'd be very careful with that. There are laws in other areas that cover the training, certification and arming of security guards. Face it guys. This should have been covered in your CHL class. A CHL allows you to carry the handguns listed. Period. |
keep in mind the Spetsnas shovel is balanced and therefore an illegal knife because it is a hand instrument designed to cut or stab another by being thrown. but is it a club or a knife? i think if i were on a jury i would say it's a club until you sharpen it. when it has cutting edges "under the law" it becomes a knife. you need to measure from the tip of the shovel to the "foot rest" to determine how long the cutting edge is. if you sharpen both sides i guess it would be a double bladed knife i.e. a "dagger"? you can chop with it so you could call it a "tomahawk". so we are back at club again. PC §46.01. DEFINITIONS. In this Chapter: (1) "Club" means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following: (A) blackjack; (B) nightstick; (C) mace; (D) tomahawk. (6) "Illegal knife" means a: (B) hand instrument designed to cut or stab another by being thrown; (C) dagger, including but not limited to a dirk, stiletto, and poniard; (D) bowie knife; (E) sword; or (F) spear. (7) "Knife" means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument. |
And what law classes led you to believe you could read into the law instead of READING the law? I mean we all know that Constitutional Rights only apply to white men right. I mean after all its what was intended and it does not matter if they never said white men only... we are supposed to "read between the lines" because thats how the law works right? WRONG! You need learn to READ THE LAW. Laws are stated... clearly. Nothing is EVER implied. It is either STATED or it is NOT STATED. It is not stated that only certain sections apply due to the use of certain objects in those activities because that is not the case. In other laws we have certain exemptions like "is exempt from subsection whatever..." instead of the entire law. I actually took this question to the Law professor at my Criminal Justice department and he stated. "When the law says 'does not apply' that means the entire law, not part of it." He was actually supprised to see that written that way but said there is "...NO OTHER WAY TO INTERPRET IT." |
Does it really matter whether its a club or knife? Both fall under the same law and have the same punishment. Even Surefire flashlights are illegal clubs in the state of Texas if they have a strike bezel. Hell ANYTHING becomes a club once you strike someone with it. The only exception I have ever found is a loaded fist (roll of dimes) which is not brass knuckles because you make contact with the fist and not the dimes. |
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Final note: Theoretical: Why would they allow you to carry illegal knives and guns ONLY when you can carry your pistol? Because, they do NOT want you to carry illegal knives and clubs in certain ares like 51% establishments, places with 30.06 signs, parks, etc. This makes banning the clubs and knives easy to do without writting redundant laws or having to amend current laws. Personally I do not think the spirit of the law intended illegal knives and clubs to be carried (I could be wrong) however the LETTER of the law MUST be followed when it is less restrictive and not more restrictive. Otherwise we would not have had the neutered AR15s during the ban. Those complied with the LETTER of the law. |
it matters only in the mechanics of the trial and how the attorneys can wrangle the jury to their side. |
John-In-Austin,' 1. Please cite where in the statute it says that the non-applicability only applies to carrying handguns as I don;t see where the law actually says that. I am not talking about your cop spidey sense that you can arrest anyone for anything or a prosecutor spidey sense that you can indict a Ham sandwich. |
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Here are some more legal questions if anyone wants to play: Can a District Court Judge who is a CHL carry a illegal knife? Is a District Court Judge who is a CHL in violation of UCW if he does not have his CHL on him while carrying? Can a Municipal Court Judge who is a CHL carry a handgun into a polling place on election day? Can a Retired Peace Officer who meets HR218 carry an illegal knife? The answers may surprise you... |
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This law debate is great. However, I'd probably get arrested for having the damn sap, so I threw it in the back of the SUV. I would have to get out of the vehicle and go around to the back and open the back hatch to acquire it. I would think that would take care of it being "on or about. Does the average Sheriff, PD, DPS officer know the law does not apply to CHL holders? That is the question... |
Nope. you will go to jail.  |
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I find this thread fascinating. Reading the law, it is plain as day to me that ALL of 46.02 is out the window if you have your CHL and pistol. I don't understand why or how DPS can interpret it differently. When I tried to bring it up to my CHL instructor during my last renewal class, I was stonewalled. I discussed the issue with a local prosecutor buddy, and he read it the other way -- it only applies to pistols, not knives or clubs. I'm still trying to bring him around to seeing it my way. Johninaustin has effectively caricaturized the fact that most LE either don't agree with this exemption, or aren't aware of it. For that reason, actually excercising this legal caveat might win you a trip to the pokey and a bunch of legal headaches. But I think if it ever came down to it, they'd have trouble getting a conviction once a judge really read the law. But I'm not a lawyer, or a judge, or a LEO, so what do I know? |
There is a reason they leave the litigation to litgators. CXops generally don;t know or simply don't care. Its the old pass the buck: Call the DA let him make adecision on it. |
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One of the big prblems for people like John-In-austin is that neither he nor anyone else can point to 1. the part of the statute that makes only a portion of 46.02 non-applicable 2. A riule of interpretaiton that tells us to interpret the statue in any way other than the plain english meaning of the words 3. Becasue the non-appicability section that makes n46.02 not apply to a CHL holder says that when carrying a handgun 46.02 doesn't apply, that in an of itself limits the non-applicablity to handguns only. 4. Or some ofther thing. John-In-Austin takes the position that he is cop, hear him roar and that he must me right. Other people take the position that since their CHL instructor said it, it must be so. I am simply asking for someone to give a reason that the non-applicability statute doesn;t vitiate 46.02 under the conditions statedin the non-applicability portion. It says what it says and it says it fairly clearly. |
Considering your conservative view on the new definetion of the Traveling clause this seriously has me thinking you might be right. |