Put Down Your Phone But Keep Your Sword in Your Hand

Originally published by Drew York.

Co-author: Skyler Stuckey

After finishing his weekly rehearsal for an upcoming Robin Hood performance at his local theatre, Wiley Enferee walked into his local Mega-Mart at his wife’s behest to buy a gallon of milk.  Not thinking, Wiley walked into the store still carrying his sword on his hip.  Wiley quickly found the milk and paid in the self-checkout line, but not before concerned shoppers notified store employees, who quickly called the police.  One store employee, Sam Aritan followed Wiley into the parking lot.  Wiley left before the police arrived, but Sam jotted down his license plate and told officers which way Wiley went.  Officers quickly found Wiley in his car, and noticed he was swerving and looking down.  The officers pulled Wiley over and placed him under arrest.  Wiley explained that the sword was just a prop and he’d forgotten to take it off.  The officers let him go but wrote him a ticket for texting while driving.  Wiley is upset that he ended up with a ticket when he was just minding his business.  Should Wiley put up a legal fight?

 

New Texas Laws Starting September 1 

Texas lawmakers passed a large slate of new legislation this spring, with several laws going into effect this September. The laws touch on a variety of issues, but the two laws that may have the most visible effects are HB 1935, the new “location-restricted” blade law, and HB 62, the texting-while-driving ban. Here’s a quick look at the ins and outs of these new laws and how they might affect your day-to-day.

HB 1935

Previously, it was illegal to carry a knife with a blade over 5.5 inches in length[1] in public in Texas. HB 1935 is designed to remove restrictions on the open carry of long knives and other blades by those over 18 years in age. It, ultimately, does several things:

• Removes the total restriction on carrying blades over 5.5 inches in length in public, as well as the total restriction on carrying swords, bowie knives, and spears.[2] Instead, it creates a new category of weapon in Texas Penal Code Chapter 46.01(6), the “Location-restricted knife” that is defined as a “knife with a blade over five and one-half inches”.[3]
• Makes it a crime for an adult to intentionally, knowingly, or recklessly carry a location-restricted knife in any of the following locations:
  • On the premises of a school or educational institution, including grounds or buildings on which a school-sponsored event is occurring, or a vehicle of a school or institution, unless it is pursuant to written regulations or authorization from the school;
  • a polling place on the day of an election or during early voting;
  • the premises of a government court or office used by the court, unless pursuant to written regulation or authorization of the court;
  • to a racetrack;
  • in or into the secured area of an airport;
  • within 1,000 feet of a location used for executions on the day that a death sentence is set to be carried out, if the person received notice that such carrying was prohibited;
  • to a business that derives 51 percent or more of its business from the sale or service of alcoholic beverages (blades and Budweiser don’t mix);
  • to a high school, collegiate, or professional sporting event or interscholastic event, unless the person is a participant in the event and the location-restricted knife is used in the event (so the fencing team is safe);
  • to a correctional facility (wouldn’t want to give the inmates a weapon);
  • to a hospital, mental hospital, or nursing home, unless the person has written authorization from the facility administration;
  • to an amusement park (you try riding the Texas Giant with a broadsword);
  • to a church, synagogue, or other established place of religious worship.
• Makes carrying a location-restricted knife to a school or university a third-degree felony, while carrying it to any of the other above-listed locations is a Class C misdemeanor.
• Makes it a Class A misdemeanor to sell, rent, lease, or give a location-restricted knife to anyone under 18 years of age.
• Clarifies that HB 1935 does not apply to an individual carrying a location-restricted knife if the knife is to be used in a historical demonstration or in a ceremony in which the knife is “significant to the performance of the ceremony.” Thus, you can take the sword to a battle reenactment without fear of going to jail.

HB 1935 does not contain any “open” or “concealed” language in regards to how a blade may be carried; it is as legal to carry your sword on your hip as it is in a bag or under a jacket. Notably, Texas is not alone in having a law to allow long blades in public, both Montana and Oklahoma have similar legislation on the books.

HB 62 – No Texting in Traffic

If you are used to driving with your iPhone in hand, you may need to get used to storing it in the glove box. HB 62 bans the use of cellular devices to send messages while a vehicle is moving. Texas joins 46 other states and the District of Columbia by enacting such a ban. Violations of the new law will be considered misdemeanor offenses, and will typically carry a fine between $25 and $99, with fines between $100 and $200 for repeat offenders. No points against a driver’s license will be assigned for violations of the law.

The law, as written, only bans the “reading, writing, or sending [of] electronic messages”[4] by a vehicle’s driver on a “wireless communications devices” while the vehicle is in motion. It does not, on its face, ban the use of a smart phone to search its internet browser for restaurants, stores, or other destinations, browsing streaming music applications, or dialing phone numbers.

Additionally, it is a defense to any prosecution under the new law if the driver was using the cell phone in conjunction with a hands-free device to navigate using GPS or a phone’s map applications, to report illegal activity, summon emergency help, or enter information to an application that provides updates on traffic conditions (such as Waze), to read a text or email that the person “reasonably believed concerned an emergency”, if the phone is affixed to the vehicle to relay information in the course of occupational duties (such as an Uber or Lyft driver), or to activate a function that plays music.

Tilting the Scales in Your Favor

Wiley’s tale teaches an important lesson: be prudent.  Whether what you’re doing is right or wrong, you should think ahead about the potential risks involved because you might be able to avoid an unexpected hassle and headache out of the situation.

Many thanks to Skyler Stuckey at Gray Reed for researching and summarizing the two new laws. 

 

[1] It was also illegal to publicly carry a throwing knife, a dagger, dirk, stiletto, poniard, bowie knife, sword, or spear under Texas Penal Code Chapter 46.01(6). All of those restrictions have been removed under HB 1935.

[2] Tomahawks and trench knives (or any knife that incorporates “knuckles”), however, remain illegal to carry under Penal Code Sections 46.01(1)(D) and 46.05(2), respectively.

[3] Based on judicial precedent in Texas, the 5.5 inches is measured from the hilt of the knife (or where the hilt would normally be if one does not exist) to the point of the blade.

[4] The statute defines an “electronic message” as data that is “read from or entered into a wireless communication device for the purpose of communicating with another person.” This would seem to cover texts and emails, but exclude from the statute any information being entered into the phone, even if typed, that was not meant to communicate, such as typing in a website, using navigation services, or making notes.  

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today http://ift.tt/2hCF2de
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