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Galveston Criminal Defense Attorney Discusses New Texas Open Carry Law

By: Mark Diaz June 23, 2021 no comments

Galveston Criminal Defense Attorney Discusses New Texas Open Carry Law

Texas New Open Carry Law

Some people call it constitutional carry, some people call it open carry, I’m going to stay out of the politics of it, I don’t know why gun legislation needs to be a political topic. I just want to talk about the actual legislation. 

It appears that Texas has decided that anyone who’s 21 years or older, and not otherwise legally prohibited, will now be able to carry a gun in a holster, or concealed, without any type of training. 

Without any assurance that they have any knowledge of guns at all. I’m not a big fan of this legislation. You’re still going to be prohibited in the same places you were before; government buildings, schools, all the same prohibitions that existed. 

One change though now is that, when you go into a private business, it’s no longer enough for that private business to merely have a sign telling you that guns aren’t allowed. They now have to verbally tell you that they don’t allow possession of weapons inside their establishment. 

I suspect that’s probably going to end up falling by the wayside. There are going to be too many businesses where it’s impossible to have someone standing at the front, telling every single customer that guns aren’t allowed inside. So I guess you’re going to start seeing people carrying guns while you’re out grocery shopping, I’m not sure. I guess time will tell with that. 

My son and I go deer hunting every deer season. Because I was born in 1972, I had to take a hunter safety course to legally get a hunting license. My son, who is now 19, also had to take the hunter safety course. So to hunt, I have to go through a safety course, take a test, pass it and pay a fee to the state of Texas. Then I can legally hunt. 

Now, when you turn legal drinking age in Texas, you’re free to just go buy a gun for your birthday and strap it on your hip. That just seems contrary to common sense to me. I’m also licensed to carry a handgun. When I initially got my license, I had to pay a fee to the state of Texas, go through an extensive background check, take a course, pass a written exam, and then pass the shooting proficiency exam so that I could legally carry a handgun. It was not an issue for me. 

It was not anything that I thought was over-burdensome or heavy-handed. I’ve been around guns since I was a kid just like my son. I know gun safety. It’s not an issue. But that’s not the person I’m concerned about. I’m concerned now, about anyone who doesn’t have a criminal background, any person who turns 21 who doesn’t have any of those prohibiting factors can just go buy a gun and carry. 

They may not have ever shot a gun in their life, but now they can walk around the mall possibly. If they don’t have someone at the entrance, tell them that they can’t just walk around with a gun. It makes very little sense to me. This was legislation that came out and was then passed by the House and Senate and sent to the governor’s desk for signature. 

Some of the proponents of it said silly things like a lot of people don’t have the time and the money to get a permit. Well, the money that it costs to get the license to carry is not even a quarter of what a gun costs to purchase. So I have a problem with it. They don’t have the time, they don’t have the money to get a permit, but they have the money to buy the gun that you’re now just going to let them carry. 

This is where we are. I do not think a lot of law enforcement agencies were in favor of this legislation. Being a licensed carry holder, if I’m encountered by the police for any reason when I give them my ID, I’m also supposed to give them a license to carry. Now that no longer exists. 

So this is going to put officers in a situation where every stop they make, they have to wonder if this person is armed. Again, we didn’t do any legislation regarding people that shouldn’t have guns, we just decided to let everyone have a gun unless they’re legally prohibited. I guess this is becoming the trend. 

There are now 20 states that have this type of legislation with open carry. I’ve not dug down on statistics of what happened when the other states initiated that. What happened to their shooting rates, crime rates, these types of things. If you watch the local news, there was a carjacking in Houston this week in which the victim actually shot his attacker, maybe we’ll start to see more of that. 

People defending themselves isn’t necessarily a bad thing. That’s not what I’m concerned about. It’s like I said, everyone can wear a gun on their hip like we’re in the wild wild west again. We’re just going to have to see where this legislation leads us. For those of you that are going to carry, you need to make sure that if you’re going to travel, let’s say you’re going to take a vacation to Florida, you’re going to need to check each pass-through state along the way to find out about their laws regarding gun carrying and transport

For instance, Oklahoma and Texas are pretty much identical. You can travel freely between Texas and Oklahoma with your weapon and not have any issues. I do not think that’s the case if you went to New Mexico. I think you could run into some problems if you did that in New Mexico from Texas.

I think now we’ve got 20 states in the union that allows open carry like Texas does. That means the rest don’t. You’ll want to know exactly what the rules are if you’re going to travel with your weapon. That’s about all I have to say about that. Maybe I’ll do another live video in the future after it takes effect. We’ll see what it does. 

Opinion On Polygraph Examinations

Another thing that I had several questions about on the internet, I mean, on either Facebook or by email, was about polygraph examinations. From the defense side, I can’t think of a time I’ve ever told the defendant to go take one issued by the police. They’re not admissible in court. And so they’re not going to help us, they’re usually only going to hurt us in defense of a case. Even though they’re not admissible in court. 

A lot of police agencies use them as an investigative tool, and will then hold it against you even though it can’t be used in court. Then the prosecutor, if they don’t like the answers you are giving, will start indicating that you gave false answers. They’re going to hold it against you, even though again, it’s not admissible in court. 

On the flip side of the coin, I’ve had cases where I thought I could sway the prosecution by getting my client a polygraph test. When you try to do that, as a defense attorney 99% of the time, the prosecution responds; “Well they’re not admissible in court so I don’t care.”. I’ve had a client pass a polygraph exam. 

The whole point of the thing is, they only hurt. The police officer or whoever’s giving you the examination, they’re trying to get you to fail. Then they want to use that against you to try and pressure you into confessing or giving them more evidence or whatever it is. I know that they are used quite a bit when people are on probation for sex offender offenses. They, many times as a condition of probation, are required to submit to polygraph examinations. 

If you fail one, the state wants to use that to somehow revoke your probation or punish you. Since you’re on probation, and if it’s a condition, you don’t have the option of rejecting. So it’s just a strange situation. It all stems from them not being admissible in court. If they were admissible, then they would carry a lot more weight, and they would get a lot more juice. 

Why aren’t they admissible? Because basically, they’ve been determined to be scientifically unreliable, as far as the results go. That being said, why would you do it? If you’re offered a polygraph by a police agency, I would say don’t do it. At that point, you’ve already talked to the police too much. You need to stop and say I want my lawyer here before we discuss anything else.

If you are facing weapons charges or any other kind of criminal charges in Southeast Texas call the Galveston criminal defense lawyers at TexasCriminalJustice.com.

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