Open Carry Confusing for Police, Businesses and Public, Senators Hear

Continued uncertainty over the provisions of a new state law allowing the open carry of handguns may prompt future legislative tinkering, Texas lawmakers said Tuesday.

"The public is still very confused, and the more we can do to inform the public, the more they understand 'can I' or 'can't I' or 'do I' or 'don't I,' the better it is for everyone," said state Sen. Jane Nelson, R-Flower Mound, speaking at a hearing of the Senate State Affairs Committee as the panel heard testimony from law enforcement, business owners, gun safety advocates and Second Amendment rights groups.

The open carry law took effect New Year's Day, allowing roughly 826,000 handgun license holders to carry their weapons openly in a hip or shoulder holster. There have been no major incidents related to the law reported to date. But local officials and business owners are still struggling to interpret some of the law's requirements.

State Sen. Joan Huffman, the Houston Republican who leads the committee, said she called for Tuesday's hearing to "lay it all out there so there is an understanding that there is confusion."

Whether police officers can ask those visibly carrying guns to present their permits is among the areas of uncertainty.

So far, it has largely fallen to individual district attorneys and police chiefs to determine proper procedure under the law. 

Justin Wood, a prosecutor with the Harris County District Attorney’s Office, told the panel that local officials had interpreted the law to allow police officers to ask for a license while engaged in a “consensual conversation” with someone carrying a handgun. If the person refused, Wood said, that might then constitute probable cause for the officer to check if the person was unlawfully carrying the firearm.

State Sen. Brian Birdwell, R-Granbury, was troubled by that approach.

"Simply the presence of the weapon is not a reason to believe it is unlawful," he said. "There comes a point at which this feels like harassment."

Senators also heard concerns about a requirement that businesses give “effective notice” in oral or written communication to customers if they prohibit firearms. 

Some people have taken that provision to mean they must be verbally told by a business that they are not permitted to carry their firearms, said Al Flores, the general counsel for two Tex-Mex restaurant chains in the Houston area.

"We’re finding that the first line of defense is often that host who greets that open-carry holder," he said. “That’s already an intimidating situation — let alone having someone having a few drinks and having a bartender or server say 'We can no longer serve you.' That presents a confrontational scenario that we are trying to avoid."

As the panel concluded, Huffman asked senators to continue collecting information from their constituents so that lawmakers could prepare to make “any little tweaks” to the measure during the 2017 legislative session.