Texas GOP pushes through ‘campus carry’ as Legislature ends

AUSTIN, Texas (AP) — The Texas Legislature wound down Sunday by lifting a ban on firearms on college campuses after years of thwarted attempts, putting a final conservative stamp on new Republican Gov. Greg Abbott‘s debut that included tax cuts and a dramatic rise in border security spending.

The official last day for the Legislature is Monday. But that day is mostly ceremonial, and unlike the previous 14 years under Rick Perry, lawmakers are going home instead of being marched into a special session, where contentious issues such as abortion and immigration often reignited.

On Monday, Abbott will wrap up the session by publicly signing a bill that legalizes cannabis oil for epilepsy patients, which marijuana supporters consider a milestone in a state that has long rebuffed even the slightest relaxing of pot laws.

But the last major bill sent to Abbott was both a symbol of the Republican dominance flaunted over the last 140 days of the session and the most emotionally-charged issue when he took office — expanding gun rights.

Allowing concealed handguns in college classrooms, known as “campus carry,” had repeatedly stalled under Republican majorities in Texas since a student killed 32 people at Virginia Tech in 2007. But last-minute concessions that give skittish university leaders leeway to carve out “gun-free zones” finally won the support to push the bill through.

Guns brought into college classrooms must remain out of sight. But most everywhere else in Texas, openly carrying a holstered gun in public will become legal in September, another measure approved this session.

“The men and women of Texas who carry have been waiting to go to classrooms, but we have been asking them to put their weapons up,” said Republican state Rep. Allen Fletcher, a former Houston police officer who sponsored the bill.

The House passed the measure 98-47. Abbott is expected to sign the bill into law, which won’t take effect on campuses until fall 2016.

Loosening gun restrictions gives newcomers Abbott and Republican Lt. Gov. Dan Patrick, the powerful Senate leader who used big-money donors as a private sounding board for legislation, the bragging rights of succeeding where their predecessors failed. But it also provided extra cover with tea party voters who helped put them in office.

Republicans will leave Austin with a long list of conservative victories: the biggest Texas tax cuts in a decade, doubling spending on security at the border with Mexico and weakening the power of judges and public corruption prosecutors in liberal Travis County.

But other proposed crackdowns on immigration went nowhere, and efforts to defy the U.S. Supreme Court if gay marriage is legalized this summer fizzled. Both were craved by the most conservative bloc of Republican voters and lawmakers but drew defiance from outnumbered Democrats and business groups.

Watching those hot-button issues wither was of little consolation to Democrats, whose party was whipped on Election Day last November and then further pushed to the sidelines.

Health care was practically a nonissue, and public schools only received a small bump in funding despite billions of dollars in revenue that Republicans are leaving unspent. When Abbott made boosting pre-K his first education initiative and dangled an extra $130 million in front of schools — far less than what Texas cut from pre-K in 2011 while slashing the state budget to the bone — Democrats considered that figure as a starting point.

Instead, the bottom line never budged.

“Certainly the funds are there for a variety of those things. But the political will wasn’t there,” said Democratic state Rep. Chris Turner, who ran Wendy Davis‘ failed run for governor last year.

Abbott wields line-item veto power over the budget. The last time Texas had a new governor, Perry stunned lawmakers by vetoing dozens of bills in a show of power, though Abbott’s political style is more reserved than the bravado of his predecessor.

Gun advocates say there will likely be very few concealed weapons on campus because most students won’t qualify for one. Texas has about 850,000 concealed handgun license holders, all of whom must be 21 or older.


Texas legislators approve licensed open carry bill, sending it to Gov. Abbott

AUSTIN – Open carry in Texas is just a signature away from becoming law, as the House and Senate voted in rapid succession Friday to send the contentious bill to Gov. Greg Abbott.

The measure, opposed by most Democrats, would allow licensed Texans to openly carry handguns in belt or shoulder holsters. It passed the Legislature only after supporters agreed to strip an amendment that was fiercely opposed by police officials.

Abbott, a Republican, said emphatically on Friday that he would sign open carry into law.

“Open carry just passed in both the Texas House & Senate,” the governor wrote on Twitter after the votes. “Next destination: My Pen.”

The bill first passed the House on a 102-42 vote. The Senate then passed it to Abbott on a 20-11 vote.

The proposal, which would go into effect in January, would mark the most dramatic overhaul of Texas’ gun regulations in two decades.

Texas has long allowed the open carry of long guns, such as rifles and shotguns. But even with the state’s gun friendly reputation, it’s currently just one six states to not allow some open carry of handguns.

“Let’s boldly go where everyone has gone before us,” Sen. Craig Estes, the bill’s sponsor, said this week. “I don’t think it is anything bold or new, but it may take some people a little bit to get used to it.”

With the votes stacked against them – and a Senate filibuster not feasible – Democrats offered only token opposition Friday. But Sen. Rodney Ellis, D-Houston, made clear his view that open carry is “one of the worst things we could do in Texas.”

“Out of all the important issues, with all due respect, that we had to work on this session, this one is not one that I would put on any lists of the Top 100,” he said.


Open Carry Update

Open Carry Passes Texas Senate

Late on Friday, after hours of debate, the Texas Senate passed House Bill 910, sponsored by state Representative Larry Phillips (R-Sherman) & state Senator Craig Estes (R-Wichita Falls), on a 19-12 vote.  NRA-supported HB 910 removes the requirement that Concealed Handgun Licensees (CHLs) keep their handguns concealed and gives them the option of carrying them either wholly or partially visible in a belt or shoulder holster.  After having established a 20-year record of law-abiding and responsible behavior, Texas CHLs have earned this personal protection option that 43 states currently allow.  The Senate made changes to the measure, so it will now have to go back to the House for agreement on those amendments.  Your NRA-ILA will keep you posted on the progress of this important bill during this last week of session.  Thank you to Lt. Governor Dan Patrick (R), bill sponsor Sen. Estes and the other 18 Republicans who supported this measure.


Texas Law Shield Seminar in Austin Area

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May 25, 2015
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Attention Austin area Members, please join us this Thursday, May 28 for our Austin Seminar at the Ben Hur Shrine. Listen to experienced lawyers, firearms instructors, and experts in all different areas of legally owning and carrying firearms. We host seminars throughout the state, so if you’re not in the Austin area please come join your fellow members at a seminar in your area. A list of upcoming seminars and events can be found at gunlawseminar.com.

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Texas: House Approves HB 910, NRA-Backed Open Carry Legislation

NRA-ILA: Institute for Legislative Action

Texas: House Approves HB 910, NRA-Backed Open Carry Legislation

On Friday, the Texas House gave tentative approval to House Bill 910, NRA-supported open carry legislation sponsored by state Rep. Larry Phillips (R-Sherman), on a 96 to 35 vote.  HB 910 removes the requirement that Concealed Handgun Licensees (CHL) keep their handguns concealed and gives them the option of carrying them either wholly or partially visible in a belt or shoulder holster.  After having established a 20-year record of law-abiding and responsible behavior, Texas CHLs have earned this personal protection option that 43 states currently allow.

Opponents raised several “points of order” on the bill – procedural challenges used to temporarily derail it before debate got started – but they were overruled.  They unsuccessfully attempted to add gutting amendments to the measure, including moves to allow the four largest cities in the state to opt-out of the law, to require CHLs carrying openly to purchase liability insurance and conspicuously display their licenses somehow, to mandate the use of dual restraint holsters and to replace the current 30.06 signage requirements that apply to CHLs with far less adequate notice provisions.

HB 910 was given final approval by the House today on a 101-42 vote.  It now moves to the Texas Senate for consideration.  As we reported earlier, the Senate companion measure – Senate Bill 17, sponsored by state Senator Craig Estes (R-Wichita Falls) – has already passed the Senate.  It remains to be seen which chamber will take up the other’s bill first.  Your NRA-ILA will keep you posted regarding further action on either or both measures.

Also last week, the House Ways & Means Committee reported out House Bill 849, sponsored by state Rep. Chris Paddie (R-Tyler), state Rep. Dennis Bonnen (R-Angleton) and state Rep. Drew Springer (R-Gainesville), NRA-backed legislation creating tax-free weekends in late August and late October (before dove and deer seasons) on the sale of firearms, ammunition and hunting supplies.  On Tuesday, the Senate Finance Committee will consider Senate Bill 228, sponsored by state Senator Brandon Creighton (R-Conroe), another NRA-backed sales tax holiday bill covering similar items.  The sponsor is expected to present a committee substitute which would mirror the language in HB 849.

Since 2009, Louisiana has annually celebrated a Second Amendment sales tax holiday in early September, putting retailers in East and Southeast Texas at a competitive disadvantage just as hunting seasons are beginning.  In addition to recognizing Texas’ similar commitment to our Second Amendment rights and sporting heritage, these measures would encourage more Texans to exercise those rights, purchase hunting licenses and engage in their favorite sporting activity.  The contributions that sportsmen make when they purchase equipment or licenses actually relieve taxpayers from a significant burden of financing state for wildlife habitat restoration and conservation efforts.  In the 2014 fiscal year, Texas was allocated $51 million from the U.S. Fish & Wildlife Service in Pittman-Robertson funds for such programs.


Texas: Senate Committee to Consider Campus Carry and Open Carry Bills this Week!

On Thursday, the Texas Senate Committee on State Affairs will consider two NRA-supported measures:

Senate Bill 11, sponsored by state Senator Brian Birdwell (R-Granbury), would remove restrictions in state law that prohibit law-abiding adult Concealed Handgun Licensees from protecting themselves on college and university campuses.

Senate Bill 17, sponsored by state Senator Craig Estes (R-Wichita Falls), a proposal removing the requirement that CHLs keep their handguns concealed and gives them the option of carrying them either wholly or partially visible in a belt or shoulder holster.  Note: SB 17 is identical to SB 346 introduced by Senator Estes; the language from SB 346 was re-filed this week and assigned a lower bill number by Lieutenant Governor Dan Patrick, signifying that this issue is of high importance in the Texas Senate.

Please contact State Affairs Committee members and urge them to support both SB 11 and SB 17.  Contact information for committee members can be found here.  Be sure to thank those Senators who co-authored each bill; a list of co-authors is available for Senate Bill 11 and Senate Bill 17.


Texas: Summary of Major Pro- & Anti-Gun Legislation Filed To Date in the Legislature

The Texas Legislature convened for its 2015 Regular Session on January 13.  Dozens of pro-Second Amendment measures were either pre-filed or have been introduced in recent weeks, along with a handful of sweeping gun control bills.  The filing deadline for legislation is not until March 13, and NRA-ILA anticipates that many more firearm- and hunting-related bills, both good and bad, will materialize between now and then.

Contact information for state Senators can be found at www.senate.state.tx.us and for House members at www.house.state.tx.us.  A list of Senate Committees was released late Friday and the House is still organizing itself, so the following measures have not yet been assigned to committee or scheduled for a hearing in either chamber.  NRA-ILA will keep you informed as to where these bills are referred and when they see action, but in the meantime, here’s a rundown of the major legislation we are tracking thus far in Austin that could affect Texas gun owners and sportsmen:

Campus Carry

Today, state Senator Brian Birdwell (R-Granbury), along with 19 Senate co-authors, and state Representative Allen Fletcher (R-Tomball) introduced Senate Bill 11 and House Bill 937, respectively, to remove restrictions in state law that prohibit law-abiding, adult Concealed Handgun Licensees (CHLs) from protecting themselves on college and university campuses.  You can expect to see the same misguided bias against these bills from some in the Texas media this session, but interestingly, a major newspaper in Nevada recently endorsed and strongly recommended passage of a similar measure filed in that state’s legislature.  From the editorial, entitled: “Law-abiding citizens shouldn’t be defenseless on college campuses”:

‘Bad guys don’t obey gun laws, on college campuses and elsewhere. Lawmakers who oppose campus carry proposals must acknowledge that gun-free zones essentially create defenseless target zones. Considering the president of the United States and college administrators claim there is a sexual assault crisis on college campuses, why would lawmakers deny women the ability to defend themselves?’  – Las Vegas Review Journal

To read the editorial in its entirety, please click here.

Open Carry

Numerous versions of open carry bills have been filed, which can best be broken down into the following categories:

Constitutional or Permitless Carry: House Bill 195, pre-filed by state Representative Jonathan Stickland (R-Bedford) and Senate Bill 342 by state Senator Don Huffines (R-Dallas) would remove the requirement that an individual obtain a Concealed Handgun License in order to carry a legally-possessed firearm openly or concealed in the State of Texas.

Open Carry for CHLs: House Bill 164, pre-filed by state Representative James White (R-Woodville), House Bill 910 by state Representative Larry Phillips (R-Sherman), and Senate Bill 346 by state Senator Craig Estes (R-Wichita Falls) would remove the requirement that CHLs carry their handguns hidden from plain view and allow them the option of carrying them wholly or partially visible in a belt or shoulder holster.  House Bill 106, pre-filed by state Representative Dan Flynn (R-Van), House Bill 291 by state Representative Dan Huberty (R-Kingwood) and House Bill 415 by state Representative Debbie Riddle (R-Spring) are similar to those bills, but they also specify that holsters used by CHLs have dual points of resistance.

Right to Hunt and Fish Constitutional Amendments

As previously reported, legislation has been filed to amend the state constitution and establish an individual Right to Hunt & Fish: House Joint Resolution 61, pre-filed by state Representative Trent Ashby (R-Lufkin) and Senate Joint Resolution 22 by state Senator Brandon Creighton (R-Conroe).  These important measures would ensure that future wildlife management decisions are based on sound science to protect the Lone Star State’s hunting heritage for generations to come.

Clarifying or Repealing Prohibited Locations for Concealed Handgun Licensees (CHLs)

House Bill 226, pre-filed by state Representative Ryan Guillen (D-Rio Grande City) and Senate Bill 273 by state Senator Donna Campbell (R-New Braunfels) would impose civil fines on state agencies, cities or counties that improperly post 30.06 signs prohibiting CHLs from public property which is not off-limits to them under the Texas Penal Code. These bills are an effort to provide much-needed clarity for license holders.

House Bill 308, pre-filed by state Representative Drew Springer (R-Gainesville) would remove all restrictions on where CHLs may lawfully carry that currently exist in the Penal Code, and Senate Bill 311 by state Senator Campbell would repeal the criminal prohibition on carrying in certain locations listed in Sections 46.03 and 46.035 that are considered private property or privately-owned businesses.

Second Amendment or Sportsmen’s Sales Tax Holiday

House Bill 206, pre-filed by state  Representative Jeff Leach (R-Plano), House Bill 712 by state Representative Drew Springer (R-Gainsville) and Senate Bill 228 by state Senator Brandon Creighton (R-Conroe) all create sales tax holidays for firearms and/or hunting supplies to be held one weekend a year around the start of hunting season.  These bills are modeled after popular tax-free weekends held annually in both Louisiana and Mississippi for gun owners and sportsmen.

Anti-Gun Legislation Filed To-Date

State Senator Rodney Ellis (D-Houston) has filed a laundry list of deeply flawed gun control measures.  You can expect to see more anti-gun bills filed on the House side before the deadline to introduce legislation passes:

  • Senate Bill 256 bans the possession or transfer of so-called “large capacity magazines”;
  • Senate Bill 257 creates a criminal offense for failing to report a lost or stolen firearm to a law enforcement agency within 48 hours;
  • Senate Bill 258 restricts the private transfers of firearms at gun shows; and
  • Senate Bill 259 criminalizes the private transfers of firearms – even between neighbors, friends, co-workers and certain family members – and establishes an immense new state bureaucracy to implement such new restrictions.

While these are the major pro- & anti-gun and hunting bills filed for the 2015 session, this is by no means an exhaustive list.  You can search for specific bills on particular subjects of interest to you at http://www.legis.state.tx.us/search/billsearch.aspx.  Rest assured that NRA-ILA is tracking all measures affecting your rights and we will continue to report on their progress as the session moves ahead. 



Understanding the Castle Doctrine

From Texas Law Shield,

Catchy terms like “Stand Your Ground” and the “Castle Doctrine” have become common topics of dinner table discussions in recent months. With the media frenzy over the Trayvon Martin case, a nationwide debate over “Stand Your Ground” laws has surfaced. The media acts very authoritative when they glibly throw around the terms “Stand Your Ground” and “Castle Doctrine.” However, these are not legal terms or standards when it comes to Texas law. You will not find the words “stand your ground” or “castle” anywhere in the Texas Penal Code. So what do these terms mean? In this newsletter, we are going to explain Texas’ laws that are loosely called the Castle Doctrine and Stand Your Ground.

What is the Texas Castle Doctrine?

The “Castle Doctrine” is a concept that comes from the philosophy that every person is the King or Queen of their home. Thus, there is never a need for the monarch of the kingdom to flee the castle before using force against an unlawful intruder. Texas Penal Code §9.31 (governing the justified use of non-deadly force) and §9.32 (governing the justified use of deadly force) are our state’s version of the Castle Doctrine. Just proving that everything is bigger in Texas, our law extends the “Castle Doctrine” beyond your residence to include your occupied vehicle and workplace.

Inside your “castle,” under certain circumstances, Texas law presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself against an intruder who enters your occupied habitation, vehicle, or place of business or employment. What are the circumstances that will give you this important legal presumption? The first is where an individual unlawfully and with force, enters or attempts to enter your occupied habitation, vehicle or place of business or employment. The second situation is if an individual unlawfully and with force, removes or attempts to remove you from your occupied habitation, vehicle, or place of business or employment. If you are ever confronted with either of these situations, Texas law will presume that you acted reasonably and were justified in using force or deadly force. Therefore, in order for you to be convicted of any crime, a prosecutor would have to overcome this presumption in order to prove that you did not act reasonably. Overcoming this presumption is nearly an impossible task in a court of law.

With regard to using force or deadly force to defend your “castle,” the Texas Penal Code specifically uses the word “habitation,” not the words “building” or “property.” Texas has a very limited definition of what qualifies as a person’s habitation. The “Castle Doctrine” does not cover your entire piece of property. The legal term “habitation” is defined by Texas Penal Code §30.01 as “a structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.” This means structures that are detached from where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.

Turning to the subject of vehicles, Texas Penal Code §30.01 defines a vehicle “as any device, in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.” This is a very broad definition and appears to include anything that carries people or property from one place to another, including cars, trucks, boats, airplanes, golf carts, etc. The important point to remember is that you or someone else must be occupying the vehicle to be given the presumption of reasonableness under Texas Penal Code §9.31 and §9.32.

What About People Who are Only Trespassers?

Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use force, not deadly force, that is reasonably necessary to prevent or terminate another’s trespass on your land.

You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force, not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law. Only if the trespasser is committing other acts where the law states that you are justified in using deadly force would you be allowed to discharge your firearm legally.

For example, if you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.”

What if a Trespasser Starts Committing Other Property Crimes?

What about defense of property? The use of deadly force to protect property is contained in Texas Penal Code §9.42. This section of the law lays out a couple of scenarios where you are justified in reasonably using deadly force to protect your property. The first is if someone is committing trespass or interference with your property and you must reasonably use deadly force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime. If someone is unlawfully on your property and attempting to commit any of these crimes, you will gain the legal justification for using deadly force.

The second scenario is the law of recovering your property by using deadly force. Texas has a 3-prong test that, if met, gives a justification in using deadly force to recover stolen property. This test is as follows: (1) force is necessary to prevent or terminate another’s trespass on land or unlawful interference with the property, (2) deadly force is reasonably necessary to prevent another who is immediately fleeing after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and (3) the person reasonably believes that the property cannot be recovered by any other method or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. We as lawyers cannot stress enough that under this scenario, while the law may allow you to use deadly force – It Is Most Likely A Very Bad Idea!

As you see, criminal trespass alone is not one of the crimes listed in Texas Penal Code §9.42 or even as part of the “Castle Doctrine” under §9.31 or §9.32. A mere criminal trespass may, however, evolve into one of the above crimes where you may be justified in using deadly force to protect your property. Let’s take another example, if someone decides to sit on your lawn, you holler at them from your bedroom window to “get off my property.” If the trespasser refuses to leave, you are almost certainly not justified in using deadly force to remove him. But if that person sitting on your lawn gets up and charges towards your bedroom window with a firearm and a crow bar, you will very likely be legally justified in using deadly force to protect yourself and your home. His actions of charging you with a weapon make him more than just a trespasser under Texas law.
Criminal Prosecution Even If You Were Justified.

Just because Texas law affords you a legal justification for using deadly force when someone attacks you or enters or removes you from your occupied habitation, vehicle, or workplace, does not mean you are immune from being arrested or criminally prosecuted – even if you are completely in the “right” as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a get out of jail free card, or an “I get to skip the entire legal process” card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved. You just dont know.

Does Texas Have a Stand Your Ground Law?

The term “stand your ground” law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.32(c) states that in defending yourself or another person, you have no duty to retreat if: (1) you have a legal right to be at the location where deadly force is used, (2) you did not provoke the person against whom deadly force was used, (3) and you were not engaged in criminal activity at the time deadly force was used. The statute is better classified as a “no duty to retreat” law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable “escape route” or that you should have had to “fall back” before justifiably using deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!

In order to receive the “no duty to retreat” protection from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force. As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker’s use of deadly force. If you are anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is designed to protect you when “trouble finds you, but not when you go looking for trouble.”

Disqualifications for No Retreat Protection

There are multiple situations where your conduct may potentially disqualify you from the Texas “no duty to retreat” provision. In order to receive Texas Penal Code §9.32(c)’s “no duty to retreat” protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute’s protection.

Disqualifying Under Texas Penal Code §9.31

If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the “no duty to retreat” protection in the legal system:

1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).

2. You will not be justified in using force to resist arrest or search being made by a police officer. Even if the arrest or search is ultimately proven to be unlawful.

3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

4. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “no duty to retreat” protection. Unlawful carry of a weapon includes:

a. a non-CHL holder carrying in places other than their premises, vehicle or watercraft;

b. having a handgun in plain view;

c. engaging in criminal activity while carrying a weapon; or,

d. carrying a weapon by a person who is a member of a criminal street gang.
Qualifying Under the No Duty to Retreat Statute

As we discussed earlier, the first thing that must be satisfied to receive the no duty to retreat protection is that the person had a legal right to be in the location where deadly force was used. What does the law mean that you “have to be in a location where you have a legal right to be?” The best way to address this topic is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if a person enters or remains on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the no duty to retreat statute.

If you satisfied the location test, you cannot have provoked the other’s use or attempted use of force. You can’t start the fight and claim justification, however, there are several exceptions to this rule. (Yes, an exception to the exception.) If you abandon the encounter or clearly communicate your intent to abandon and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.

A very similar scenario recently played out in a district court in Harris County. The accused was convicted of murdering his neighbor in a conflict that started with a noise complaint. The accused videotaped the entire confrontation. If you watch the last couple of minutes of the video, it appears that the accused was justified in discharging his firearm after three men charged him. However, the previous approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor’s property, and taunting the neighbors by flashing his pistol. Thus, the accused did not qualify for the “no duty to retreat” statute. In fact, the prosecutor in that case told the jury that “self-defense was never meant to protect the one that started the fight.” The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.

Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense, at the time deadly force was used and claim self-defense. I would advise refraining from any criminal activity.

As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises and many lawyers’ careers, so obviously this article is only a brief overview. I hope, however, this newsletter provides you with a better understanding of both of these legal topics, and if you have any questions about Texas firearms laws, do not hesitate to contact us. Contact Concealed Carry Austin to become a Texas Law Shield member.

Michele Byington
Texas Law Shield, LLP


How Flipping The Bird Can Land Texas Gun Owners In Jail!

If you carry a gun in your car, some practical advice, don’t flip the bird!

The collective experience of our members has taught us that often all it takes to get arrested, and possibly charged with a crime, is the mere allegation from another driver that they believed someone might have had a firearm during a traffic altercation.

There have been numerous occasions where our members have been involved in a traffic incident (i.e., both drivers flipping each other off), and the other driver (sometimes in fits of rage and paranoia) calls 911.

This driver then proceeds to make vague allegations and speculation. For example: “He pointed something that looked like a gun!”, “She put an object on the dashboard to intimidate me!”, or “I think they may have a gun!”

To make matters worse, 911 operators often ask leading questions, possibly resulting in even more inaccuracies when the report is transmitted to the police (remember the information the police officer often has to initially work with on the scene can be inaccurate, incomplete, or just plain wrong).

As a matter of standard procedure, the police will often be dispatched. In our experience, if the police pull someone over under these circumstances and the driver does in fact have a legal firearm in their possession after this exchange of “roadway pleasantries,” they will very often be arrested with little or no evidence.

If you have a gun, keep your cool. We have seen cases that were clearly incidents of people overreacting, calling 911 and conveying false allegations. But the falsity of these allegations can only be shown after an investigation, lots of grief, and involvement in the criminal justice system.

These types of 911 calls can result in an arrest for what amounted to bad manners. Our legal system can be far from perfect. So, our message is simple: Don’t allow yourself to get sucked into the legal system just because you got angry in traffic. If you carry a gun, don’t flip the bird!

It can happen to you. Even if you have done nothing wrong, the legal fees of such an incident can skyrocket into the tens of thousands of dollars. That is why over 80,000 smart Texas gun owners have chosen to invest in Texas Law Shield’s Firearms Legal Defense Program.

Be Safe!

The Texas Law Shield Team

P.S. No matter how good a driver you are, you can be the victim of someone’s road rage. Don’t let someone else’s road rage cost you thousands of dollars. Get protected! Ask me how to get Texas Law Shield.