Texas Open Carry Laws – Failure to ID
A question our office routinely encounters regarding Texas Open Carry laws is whether a Texas License to Carry (LTC) holder is legally required to present their LTC upon request by law enforcement or a magistrate. The answer, though definitive, is complex with legislative history and potential legal pitfalls, especially since Texas Open Carry laws took effect in 2016.
First, there is technically no legal penalty if you do not present your LTC to law enforcement upon demand. See Texas Gov’t Code Sec. 411.205. Upon reading the statute, one obvious omission is the penalty for failure to display an LTC. There is not an error and no other accompanying statute exists to clarify the penalty.
In 2009, the 81st Texas Legislature amended Tex. Gov’t Code Sec. 411.205 in H.B. (House Bill) 2730 to eliminate the criminal penalty requirements. Before September 1, 2009, an LTC holder could be charged with a Class B misdemeanor for failing to display their LTC upon demand by law enforcement. Additionally, the 81st Texas Legislature removed the LTC suspension requirement for failing to display an LTC in Tex. Gov’t Code 411.187(a). Essentially, the criminal and administrative penalties for failing to display an LTC upon demand by law enforcement were removed effective September 1, 2009.
So, you may be asking, why keep the requirement to display an LTC in the Government Code? Simply put, it is quite unusual to keep a statute on the books without any enforcement or penalties. However, looking through the Texas Penal Code, the potential unlawful carrying of a weapon charge serves as another reminder that LTC holders should ALWAYS carry their LTC when carrying a weapon either concealed or open. However, it is now more important to do so since Texas Open Carry laws took effect in 2016. While the current state of technology allows law enforcement to readily determine whether an individual has a current LTC or not, failing to ID if approached by law enforcement may present a host of issues and amplify an already tense situation for a lawful LTC holder.
Conceptually, let’s say that an LTC holder is walking down a public street open carrying their handgun in a proper belt/shoulder holster. Do Texas Open Carry laws indicate that they be approached by a police officer to identify?
Yes, the LTC holder can be approached by law enforcement due to an officer’s development of reasonable suspicion or a call regarding the LTC holder from a third party. It is important to note that, as of 2017, no amendments to the open carry statutes are in place that allows law enforcement to approach an individual open carrying to inquire about their status as an LTC holder without reasonable suspicion or a complaint. Remember, just because a specific statute isn’t on the books doesn’t mean that the member of law enforcement approaching you knows all the current Texas Open Carry laws and all of their amendments.
Back to our scenario, let’s say the officer approaches the LTC holder, says he received a complaint from a third party regarding the LTC holder and demands the LTC holder present their LTC and driver’s license (as required under Tex. Gov’t Code Sec. 411.205). If the LTC holder decides to argue the validity of the detention and refuse to ID, matters can go poorly for the LTC holder very quick.
Looking to Tex. Penal Code Sec. 46.02, an individual can be charged with unlawfully carrying a weapon (UCW) if they intentionally, knowingly, or recklessly carry a handgun on or about their person and they are not on their own property, or in their vehicle and/or directly enroute to their vehicle. However, LTC holders need not worry about the UCW charge, as Tex. Penal Code Sec. 46.15(b)(6) offers nonapplicability of Sec. 46.02, if the LTC holder is 1) carrying their LTC, and 2) a handgun either concealed or openly in a belt/shoulder holster. However, for Sec. 46.15(6) to apply, the police officer must be able to confirm that the individual actually has an LTC.
The problem with the LTC holder in our scenario stems from his/her reticence to give any identification at all to the police officer. If the LTC holder continues this course of action, the police officer will likely charge the LTC holder with a Class A misdemeanor for UCW because he could not affirmatively identify that the LTC holder had an active LTC.
If the LTC holder insists on not providing identification after the police officer places him/her under arrest for UCW, the LTC holder can be subsequently charged with Failure to ID under Tex. Penal Code Sec. 38.02(a).
(Texas Open Carry Laws) Relevant Statutes:
Texas Government Code
Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license.
Added by Acts 1997, 75th Leg., ch. 165, Sec. 10.01(a), eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 9.17(a), eff. Sept. 1, 1999.
Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 12A.02, eff. September 1, 2009.
Texas Penal Code
Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.
(a-1) 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:
(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Sec. 46.15. NONAPPLICABILITY.
(b) Section 46.02 does not apply to a person who:
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;