A Day in the Life of an Independent Program Attorney

While Texas Law Shield offers fantastic legal coverage, one of its assets is the preventative legal knowledge of its lawyers. It is much easier to get a quick answer from a lawyer than to have to ask for help in the courtroom! One of the downsides, however, is that when a member calls in to ask a question, only they receive the benefit of the answer. Texas Law Shield asked Independent Program Attorney and attorney at the law firm of Walker & Byington, Weston Ray, to write down the questions (and more importantly, the answers!) he received over the course of a given day. Here is “a day in the life” of one of your Independent Program Attorneys.

Q. I am a Texas resident driving up to Oklahoma. I have a Texas LTC. What are their laws on how I can carry?

A. Oklahoma does recognize your Texas LTC, so you will be able to carry while you are there. As a recognized permittee, you may carry a holstered handgun openly or concealed. If stopped by a police officer, you need to notify the officer that you have a handgun at the first opportunity to do so. Also, be aware that you are limited to carrying handguns that are .45 caliber or less.

Q. When you renew your CHL, is it true that you don’t have to go through the course again?

A. Per HB 48 (83rd Legislature), continuing education is no longer required for LTC renewal. License holders will simply apply online and submit the supporting documents for discounted fees or special conditions.

Q. My family is traveling to Nevada in our RV. Does Nevada recognize our Texas LTC? What do we do with our handguns and rifles that are in the RV?

A. Unfortunately, Nevada does not recognize your Texas LTC. However, you may have your loaded handgun in the vehicle if it is carried in plain view or concealed somewhere other than on your person. Long guns must be unloaded in the vehicle and not concealed on your person. Nevada defines unloaded as no live rounds in the firing chamber.

Q. I am a former LEO, graduated from Austin Police Academy in 1977. I then worked for the Travis County Sheriff’s Department I resigned from the TCSO for personal reasons. I did not officially retire so far as I know. I have never had the need to split hairs over did I just decide to end my law enforcement career and walk away, or did I retire?  Can you help me with this?

A. A Law Enforcement Officer may not have officially “retired” in the eyes of the employer, but may nevertheless qualify to receive pensions under plans such as the Texas Municipal Retirement System. Additionally, the former LEO may qualify under LEOSA to carry a firearm.

The intent of LEOSA is to allow not only active law enforcement officers, but former honorably separated officers to carry under LEOSA.

“QUALIFIED RETIRED LAW ENFORCEMENT OFFICERS” (OFFICERS WHO HAVE RETIRED OR SEPARATED FROM SERVICE): 18 USC 926C relates to officers who have separated from service. They are no longer active officers. Separation could be by reason of retirement but after the 2010 change to the law, it is no longer required that the separation be solely by reason of retirement. Note that an aggregate total of 15 years of employment as an LEO with an honorable separation will qualify.

Q. I am looking to sell my handgun. How old does someone have to be to buy it from me? The gentleman I have been talking to said that he wants to buy a gun as a gift for his father, is that illegal?

A. When it comes to private sales in Texas, a person must be at least 18 years old and a resident of Texas in order to purchase a firearm. It is not illegal to purchase a firearm as a gift for another person, however it is illegal to engage in what the government calls a “straw man purchase.” This is where you are buying a firearm for a third party where you are not the actual purchaser or transferee; in other words, someone can’t give you their money and tell you to buy a gun.

Q. The situation is that we frequently visit Oklahoma to go to casinos on Choctaw Nation property. I know my Texas LTC is honored in Oklahoma but, since we have no casinos in Texas, the legality of carrying there is unclear to me. Then there’s the question of whether tribal law has anything to say on the matter and, in either case, does it take precedence over state law? Can I carry on Choctaw Nation property just as I would elsewhere in Oklahoma? Can I carry in a casino? Can I carry in hotels and restaurants not part of but attached to a casino?

A. 21 O.S. Section 1277 prohibits the unlawful carry of a firearm in certain places such as any structure or building owned or leased by a city, town, county, state or federal governmental authority for the purpose of conducting business with the public. For purposes of this discussion, the Choctaw Nation would be considered a federal governmental authority. I’ll tell you in a moment why they likely fall into this category. Note that there are exceptions for parking lots set aside for the public use.

One cannot carry a firearm, under the authority of the Oklahoma SDA, in a Casino owned by any governmental authority.

One cannot carry a firearm in any building owned or leased by a recognized Native American Tribe that is used by the tribe for the purpose of conducting business with the public:  this includes the Choctaw Nation. Therefore, the hotels and restaurants that are attached to the casino, if also owned by the Choctaw Nation, would be prohibited areas for the carrying of a firearm.

The analysis of carrying firearms at a Native American owned casino should proceed as follows: Is the Choctaw Nation a governmental entity that is recognized through treaty with the United States; the answer is yes; or does it function as a governmental entity to the extent that Oklahoma recognizes the Choctaw Nation as a governmental entity; the answer is yes.

Oklahoma recognizes the Choctaw Indian Nation as a governmental entity in at least the following capacity:

  1. The Choctaws are allowed by the State of Oklahoma to issue license plates for cars; the Choctaws are allowed to own and operate Indian Smoke Shops for the sale of tobacco products and the Choctaws are allowed by statute to manage the collection of sales taxes related to tobacco; the Choctaws, by virtue of being a state recognized federal authority are able to obtain a gaming license to conduct gaming operations in the State of Oklahoma; the Choctaw Nation has its own jurisdiction, laws and police force on “Indian Land, reservations, casinos, parking lots and real estate owned by the tribe”.
  2. In order to sue the Choctaw Nation, a suit must be initiated under the Oklahoma Government Tort Claim act for any civil wrong.

Thus, by inference for purposes of hypothetical discussion, The Choctaw Nation is a federal governmental authority recognized by the State of Oklahoma and the United States Government.

Q. I am going on a trip through Oklahoma, Arkansas, and Missouri. What are the requirements for notifying law enforcement that I am armed?

A. In Oklahoma, you must provide your license at the request of an officer. Section 1272 states “The person shall be required to have possession of his or her valid handgun license and a valid Oklahoma driver license or an Oklahoma State photo identification at all times when in possession of an authorized pistol. The person shall display the handgun license on demand of a law enforcement officer; provided, however, that in the absence of reasonable and articulable suspicion of other criminal activity, an individual carrying an unconcealed handgun shall not be disarmed or physically restrained unless the individual fails to display a valid handgun license in response to that demand. Any violation of the provisions of this subsection may be punishable as a criminal offense as authorized by Section 1272 of this title or pursuant to any other applicable provision of law.”

In Arkansas, when you are in possession of a firearm and a law enforcement officer asks to see your license, you must provide them notice that you have a firearm and a concealed carry license. Arkansas – AR Rule 3.2(b) In any official contact with law enforcement, if the licensee IS in possession of a handgun, when the officer asks the licensee for identification (driver’s license, or personal information, such as name and date of birth), the licensee shall notify the officer that he or she holds a concealed handgun carry license and that he or she has a handgun in his or her possession.

In Missouri, you must provide your license at the request of a law enforcement officer. 571.121. 1. “Any person… shall carry the concealed carry permit or endorsement at all times the person is carrying a concealed firearm and shall display the concealed carry permit and a state or federal government-issued photo identification or the endorsement or permit upon the request of any peace officer. Failure to comply with this subsection shall not be a criminal offense but the concealed carry permit or endorsement holder may be issued a citation for an amount not to exceed thirty-five dollars.”

Q. What is the deal with Post Offices? I thought firearms could only be prohibited from the building itself?

A. Post offices are a little different from your typical business in that they are government property regulated by federal laws. The statute states that firearms or other deadly weapons are prohibited on postal property which includes not only the building, but all property surrounding the building where a post office is located. This includes the parking lot, as well as the sidewalks and walkways.

Q. I have a non-violent felony conviction from 30 years ago, can I do anything to get rid of that?

A. Unfortunately, the only avenue for restoring your firearm rights would be to receive a pardon. The Governor of Texas possesses the authority to grant pardons under Article IV, Section 11 of the Texas Constitution. The process involves completing an application which is available from the Texas Board of Pardons and Paroles. Once properly submitted, the file of any applicant eligible for clemency will be reviewed by the Board of Pardons and Paroles. Please note that receiving a pardon is a very rare occurrence.

Q. Does my IWB holster qualify as an open carry holster?

A. The only requirement that the statute lays out is that if you choose to open carry, the handgun must be in a belt or shoulder holster. The truth is that the law is very vague on what constitutes a proper belt or shoulder holster. The legislature hasn’t defined anything at this point. That being said, based on a logical interpretation of the law and suggestions given out by DPS, we believe that an IWB holder should be fine.

Q. My husband is testifying in court today; can he take his gun?

A. He will not be able to take his firearm with him while he is testifying in court. The law in Texas Penal Code 46.03 prohibits carrying a firearm, whether or not you have a license, inside of a courtroom.

Q. What can I do if someone tries to snatch my purse?

A. In Texas, if someone tries to steal the purse off of your shoulder, this is considered robbery. Under Texas Penal Code 29.02 robbery occurs when, in the course of a theft, a thief intentionally, knowingly, or recklessly causes you bodily injury or intentionally or knowingly threatens or causes you fear of bodily injury or death.

Texas law provides that a person is justified in the of use deadly force when and to the degree the person reasonably believes deadly force is immediately necessary to protect themselves from the commission or attempted commission of robbery.

Q. Can I take my firearm to a state park in Oklahoma?

A. Yes you may. Oklahoma Statute 21-1277 provides: if you have a recognized permit, you may carry a concealed handgun onto any property designated by a city, town, county or state governmental authority as a park, recreational area, or fairgrounds; provided, nothing in this paragraph shall be construed to authorize any entry by a person in possession of a concealed or unconcealed handgun into any structure, building or office space which is specifically prohibited by other subsections.

Q. Can I carry in Texas State Parks?

A. Yes, you may carry in any Texas State Park. In 1998, the executive director of the Texas Parks and Wildlife Department issued an executive order stating that the carrying of a concealed handgun in state parks by an LTC holder is governed by the laws concerning concealed handguns and that “nothing in the Public Hunting Lands Proclamation or State Parks Proclamation prohibits a person from possessing a concealed handgun.”

Q. My apartment just put up 30.06 and 30.07 signs. Can I no longer have a gun in my apartment?

A. These signs will only prohibit carrying a firearm in the common areas of the complex. You are not prohibited from having firearms in your personal apartment (unless that is stipulated in your lease). Additionally, you can transport firearms from your apartment to your vehicle, since this is not an action authorized under the License to Carry, but rather something that is permitted under Texas Penal Code 46.02. Even if it is stipulated in the lease that you are not allowed to have firearms in the apartment, that is an issue for the civil courts, where the punishment would be eviction; not going to jail.

Q. I like to take walks from my apartment. With 30.06 and 30.07 signs posted, would I be legal to conceal carry from my apartment to outside of the apartment complex if I use the sidewalk to parking lot to public street route?

A. Unfortunately there is not a very clear answer in this situation because we have little to no case law on 30.06 and 30.07. For the sake of discussion, this is partially dependent on where the signs are located, as well as how your apartment complex is set up. The problem is that the law allows you to move directly in between your home and car. If the signs are on the doors to the building, then you should be okay. However, if the signs are posted on the gate at the entrance to the property, it is possible that you would be in violation of the law when you left your apartment to walk in the parking lot and out to the street, not en route to your car. Essentially, if you want to go for a stroll and the gate into your strolling area has a properly posted sign, you may want to start looking for a new apartment complex!

Q. Can I carry a firearm in a commercial vehicle?

A. This is a common question. There is no law that prohibits you from carrying a firearm for personal protection in a commercial vehicle. You should look for a company policy that prohibits carry in company vehicles, as violating this policy can be grounds for termination. Additionally, be aware while you will not be violating any laws in Texas by having a loaded concealed firearm in your vehicle, you must follow the laws of the states though which you travel if you venture outside of Texas.

We hope you enjoyed this peek behind the scenes; your Independent Program Attorneys want to arm you with the knowledge you need to defend yourself from the law, so don’t be shy about calling and asking a question!