Officer Fernandez Doesn’t Know Texas Law, Buda, Texas


And here we go again.  A stop for openly carrying a long arm in Buda, Texas, and Officer Fernandez tells the individual that he is being detained based on a number of calls, and that the individual has to identify himself or he will be arrested for Failure to Identify.

The thing is, the citizen knows the law better than the officer.

Then some fat, plainclothes deputy constable shows up and tells him that if an officer asks for identification, the citizen has to produce identification.  Of course, this is not correct in Texas.  If detained, you do not have to produce identification, you just can’t lie about your name, date of birth, or address.  Tex. Pen. Code Ann. § 38.02.

After getting out of the car, Officer Fernandez is no longer talking about arresting the citizen for failure to ID, but starts saying that if they keep getting calls, it is alarming the public and disorderly conduct.  Again, as we have noted before, it is not.  You have to have more than just phone calls, it has to be carried in a manner calculated to alarm.

Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun “displayed” on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm.

Grieve v. State, No. 05-07-00156-CR, No. 05-07-00157-CR, 2008 Tex. App. LEXIS 3756, at *9 (Tex. App.–Dallas 2008, no pet.) (not designated for publication).  The above link has the other cases on this issue.

The Buda PD phone number is 512-312-1001, the Chief of Police is Bo Kidd.


Another Example of Police in Texas not Knowing the Law – Corpus Christi


Here we go again, with Texas cops not knowing the law.  This time it is out of Corpus Christi and not only one, but two lieutenants are involved.  Here are the four videos of the incident.

Here the user shows that he is videotaping from his own property and that he is openly carrying a holstered pistol.  Texas is not an open carry state, but the statute that covers this is Unlawfully Carrying a Weapon, Tex. Pen. Code Ann. § 46.02.  This law states that: “A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not on the person’s own premises or premises under the person’s control….”  Tex. Pen. Code Ann. § 46.02 (Vernon).  At about 5:00 in part 1, the two officers approach and the user (Gloc361) advises them not to enter his property.  The officers then try to tell him that he can’t openly carry a pistol (at 5:26).  This is flat out incorrect.  See Johnson v. State, 269 S.W.2d 406 (Tex. Crim. App. 1954) (“Appellant had the lawful right to carry a pistol on his own premises and this right extended to every part thereof.”); Mireles v. State, 192 S.W. 241, 243 (Tex. Crim. App. 1917) (“Clearly, under the law and evidence, he was not guilty of violating the law in carrying said [weapon] on either the forty acres of tillable land that he had rented from Mr. Roberts nor in Mr. Roberts’ pasture, where he kept his team, and had the right to go to get them as a part of his rented premises….”).  A person can openly carry a handgun on his own property.

It appears that at about 1:00-05 in the second video that the officer makes a comment about notifying Child Protective Services, although the audio is not clear enough for me to be absolutely positive on this.  If she did mention that, then it is wrong on so many levels.  First, the lawful presence of firearms does not pose a danger to the child.  Second, using CPS as a threat for compliance is just vile.  At about 1:45 a third officer tries to tell him that he can wear the gun inside his house, but not outside.  Case law clearly doesn’t support that.  Mireles, 192 S.W. at 243.  In addition, “premises” is not limited to inside of a building.  See Tex. Atty. Gen. Op. No. H-185 (1973) (“The term ‘premises’ has attached to it various meanings, owing to the connection in which it is used, but, generally speaking, the term includes not only buildings, but the lot or land upon which the same are situated.”, citing Merch. & Mfgs.’ Lloyds’ Ins. Exch. et al. v. S. Trading Co. of Texas, 205 S.W. 352 (Tex. Civ. App.–Fort Worth, 1918)).

This is only 15 seconds, and really doesn’t cover much.

Here he talks to two different lieutenants.  The individual asks the lieutenant if he is violating the law.  The first lieutenant to talk to him will flat out not answer his question, but repeats what the other officer stated, that he could not be outside with a sidearm.  When pressed, the lieutenant states that it just “looks odd.”  Last time I checked, “looking odd” was not a violation of the penal statutes of the State of Texas.

At 3:52, Lt. Tim Brown walks up and states that the individual is creating a breach of the peace, causing alarm.  See Tex. Pen. Code Ann. § 46.02  Again, this is not correct according to case law in Texas.  A recent case in Dallas addressed this very issue, stating:

Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed.

Grieve v. State, 05-07-00156-CR, 2008 WL 2152890 (Tex. App.—Dallas May 22, 2008, no pet.).  See also Bedford v. State, 69 S.W. 158 (Tex. Crim. App. 1902) (if pistol was displayed in a threatening manner, calculated to alarm, it is an offense);Jones v. State, 01-98-00645-CR, 1999 WL 517135 (Tex. App.—Houston [1st Dist.] July 22, 1999, no pet.) (when subject grabbed victim and held her for a time, told her she was his and that she belonged to him, then pulled a knife from his pocket and opened it, he displayed it in a manner calculated to alarm); Biggerstaff v. State, 2 S.W.2d 256 (Tex. Crim. App. 1927) (speaking of the exhibition of deadly weapons or the semblance thereof in an angry and threatening manner calculated to alarm).Lt. Brown, without some evidence of a threatening display of the pistol, you can not show the elements of Disorderly Conduct.  Lt. Brown then compounds the error by demanding identification, and stating that he has the right to know who he is talking to on a police contact.  In fact, he doesn’t.  We discussed this in more depth at this post and this post, but unless he is arrested, he is under absolutely no obligation to identify himself to police.

The District is commanded by Capt. David Blackmon ( and the Chief is Chief Floyd Simpson (  Note that Corpus Christi is one of the few police departments in Texas that have a union contract, and they also have a unique rank structure of Officer, Sr. Officer, Lieutenant, Captain, Commander, Asst. Chief, and Chief.  There are no Sergeants.


Arrest for Failure to Identify in Houston

5 Comments–206701291.html

The above link is raw video of a clearly illegal arrest.  As I noted in a previous post, you cannot arrest for fail to identify based on someone refusing to provide their information while being detained.

In addition, there is no “fail to ID” exception to the requirement for a search warrant.  The deputies were clearly trespassing and clearly violating Jennifer Limon’s civil rights.

The Constable for Precinct One is Alan Rosen, 713-755-5200 (main number).  One of his sergeants, Sgt. J.C. Mosier, believes the same thing and told the TV station (KHOU) that they had to identify themselves.

Since the Constable’s Office clearly doesn’t know the law, you may also want to contact the Harris County District Attorney to ask why they aren’t looking at prosecuting the deputies for Official Oppression.  Their number is 713-755-5800.


Texas Failure to Identify Law, What it Says vs. What Police Think It Says


The Texas Failure to Identify law is fairly simple.  Why don’t police get it?  It states:

  • (a)  A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
  • (b)  A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    • (1)  lawfully arrested the person;
    • (2)  lawfully detained the person; or
    • (3)  requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
  • (c)  Except as provided by Subsections (d) and (e), an offense under this section is:
    • (1)  a Class C misdemeanor if the offense is committed under Subsection (a); or
    • (2)  a Class B misdemeanor if the offense is committed under Subsection (b).
  • (d)  If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
    • (1)  a Class B misdemeanor if the offense is committed under Subsection (a); or
    • (2)  a Class A misdemeanor if the offense is committed under Subsection (b).
  • (e)  If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

Tex. Pen. Code Ann. § 38.02.

OK, it is fairly simple.  If you are under arrest refuse to provide your name, date of birth, or residence address, you commit a Class C misdemeanor unless you have warrants outstanding, when it is a Class B misdemeanor.  If you are either under arrest or lawfully detained, it is an offense to provide a false name, date of birth or address.  The later is a Class B or A misdemeanor, dependent on whether you have outstanding warrants.

What is not an offense is refusing to provide your name, date of birth, or residence address when you are lawfully detained. See Dutton v. Hayes-Pupko, No. 03-06-00438-CV, 2008 Tex. App. LEXIS 6030, 2008 WL 3166324 (Tex. App.–Austin 2008, no pet.).  The court held that Deputy Derrick Dutton had arrested Sheryl Hayes-Pupko without probable cause since the law did not require her to identify herself while she was only being detained..  Dutton’s mistake of law did not provide a defense for the false arrest claim.

Unfortunately, this is not unusual for Texas.  Police officers in this state have an idea that they have the right to identify anyone at anytime for any or no reason.  The courts have repeatedly slapped them down on this.

  • “The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.  Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.”  Brown v. Texas, 443 U.S. 47 (1979).
  • “It is clear petitioner was arrested and convicted for his refusal to answer Officer Jennings’ question requesting that petitioner identify himself. This is impermissible even in the context of a lawful investigatory stop.” Spring v. Caldwell, 516 F. Supp. 1223 (S.D. Tex. 1981), reversed on other grounds 692 F.2d 994 (5th Cir. 1982).
  • “First, Officer Lowe obtained identification from each occupant of the automobile though he had no legal basis whatever for demanding them.”  Lewis v. State, 664 S.W.2d 345 (Tex. Crim. App. 1984).
  • “Moreover, the Supreme Court has previously dealt with a case in which Texas police officers demanded that an individual identify himself even though they had no reasonable suspicion that he had committed a crime. In Brown v. Texas, the Court [11]  ruled that Texas Penal Code Ann. § 38.02 (a), as enacted by the Texas legislature in 1974, was unconstitutional because it allowed an officer to stop and demand identification of an individual without any specific basis or belief that he was involved in criminal activity.” Weddle v. Ferrell, No. 3:99-CV-0453-G, 2000 U.S. Dist. LEXIS 2659, 2000 WL 256891 (N.D. Tex. 2000).
  • “Officers have the right to conduct an investigation of a driver following a traffic violation, but do not have authority to investigate a passenger without reasonable suspicion.”  St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) (holding that arrest of passenger for failure to identify not valid absent legal detention).

Yet we still see police officers demand identification in Texas and threaten arrest (or actually make arrest) on Failure to Identify when in fact, no offense has occurred.

Examples of idiotic reasoning by officers:

At 1:40 the officer claims that he “automatically” has reasonable suspicion when someone fails to identify themselves.

Here, the lady was basically arrested because she was filming.  The charge was failure to identify, but she was never asked for ID.

Alice Police Officer Nick Juarez arrested this individual because he refused to identify himself.  Note that there was no suspicion of criminal activity, and Juarez made a statement that he didn’t want to appear on Youtube.  How’s that working for you?


Are Police in Bell County, Texas Violating Citizen’s Rights?


A while back I came across a disturbing video from Belton, Texas.  Then just a few days ago, a reader sent me a link about another disturbing video from Temple, Texas.  Both cities are in Bell County, Texas, and share a common border.  Let’s discuss the videos one by one.

Belton Police threaten citizen with illegal arrest.

Officer J. Thomas is talking to a concealed handgun license holder on February 5, 2013 at the Bell County Office of Emergency Management.  The building has a no concealed handgun sign at the door, but the sign does not comply with Texas law.  First, the sign does not properly state the notice as required by Tex. Pen. Code Ann. § 30.06.  Second, the statute prohibits a governmental body from prohibiting concealed carry in its buildings, Id. § 30.06(e), with limited exceptions such as jails, etc.

In any event, the citizen did not carry into the building, erring on the side of caution.  Towards the end of the discussion, Officer Thomas demands the citizen’s identification and when the citizen correctly points out that he does not have to provide identification (at 3:20 in the video).  The officer clearly does not understand the law for failure to identify, Tex. Pen. Code Ann. § 38.02.  The elements of the offense are simple:

  • A person who is arrested refuses to provide his name, address, and date of birth to a peace officer.
  • A person who is arrested provides a false or fictitious name, address, and date of birth to a peace officer.
  • A person who is lawfully detained provides a false or fictitious name, address, and date of birth to a peace officer.

It is not an offense to refuse to provide identification when lawfully detained.  See St. George v. State, 197 S.W.3d 806 (Tex. App.–Fort Worth 2006), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007); see also Brown v. Texas, 443 U.S. 47 (1979) (police may not stop and demand identification without reasonable suspicion of a crime).  In addition, there is no criminal penalty for refusing to provide a concealed handgun license when not carrying.  There used to be, but the legislature removed the criminal penalty.

At 3:45, Officer Thomas stated that he was a Texas peace officer and requested identification, and that was all he needed to do in the State of Texas.  This is an incorrect statement, and could subject the officer to civil claims under 42 U.S.C § 1983 for violation of civil rights, as well as criminal charges of official oppression, Tex. Pen. Code Ann. § 39.03.

A complaint was filed on March 6, 2013, and the citizen received a letter on April 13, 2013 stating that the officer broke no law.  This is obviously incorrect.  The Chief of Police of the Belton Police Department is Gene Ellis (, 254-933-5840) and the City Manager is Sam Listi (, 254-933-5818).

Temple Police arrest decorated veteran for “rudely” carrying a rifle.

Army Master Sergeant C.J. Grisham was arrested for openly carrying a rifle while hiking down a country road with his 15-year old son.  Basically the video and the linked articles tell the story better than I could, so my comments will be brief.  At about 0:45 in the video, MSG Grisham tells the officer that he will do everything that the officer asks him to do, right after the officer has said that he needs to check and see if Grisham is entitled to carry the rifle.  This is another version of the “I don’t know you, you might be a felon” line that courts have already held is unlawful.  See United States v. Black, 707 F.3d 531 (4th Cir. 2013) (holding that where firearms carry is legal, an officer must have reasonable suspicion of a crime to detain an individual, and that assuming a person is a felon is not the default view).

The officer says that he can stop anyone for “rudely displaying” a gun.  Unfortunately, this is not correct.  In Texas, it is legal to carry a rifle or shotgun openly.  A person may not carry the firearm in a manner “calculated to alarm.”  Tex. Pen. Code Ann. § 42.01(a)(8). The fact that someone called the police is not sufficient to show that it was a manner calculated to alarm, Grieve v. State, Nos. 05–07–00156–CR, 05–07–00157–CR, 2008 Tex. App. LEXIS 3756, 2008 WL 2152890 (Tex. App.–Dallas 2008, no pet.) (not designated for publication).

One of the key statements comes at 3:25, when the police sergeant states that “they don’t care what the law is.”  At another point, the sergeant says that police are exempt from the law.

Even more egregious is the fact that the police would not let the 15-year old son out of the police car until he answered all of their questions, after Grisham told his son not to talk to the officers.

The Chief of Police is Gary Smith (, 254-298-5500) and the City Manager is David Blackburn (, 254-298-5600).

In addition, other locals officials are:

  • County Attorney: James E. Nichols,, 254-933-5135.
  • Chamber of Commerce President:  Stephanie O’Banion,, 254-939-3551.

According to KCEN-TV, the Temple Police are no longer commenting on the matter.

HT:  andrew

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