Car carry OK without CHL?

[maestro]

From another forum where I asked this question and was told the law changed on 1 November 2005. The original poster was from TX, though he wasn't the one who answered the question:

He asks how long have I had my CHL and if I am aware of the chages this year. Now anyone that can legally own a gun can carry it in thier vehicle, without a CHL, you only need the license to carry a gun on your person.

1. Most TX laws go into effect on 1 September.
2. Can't find a thing searching here or the other forum to provide credence to this. Not that I'm the best searcher -- but I tried.

Is this really a change to CHL, or just a "clarification" of the traveling law? Can anyone help? Thanks.

[suXor]

Per current TX law as of 09/01/2005:

§46.15

(a) Sections 46.02 and § 46.03 do not apply to: (3) People traveling;

§46.15 (i)

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.


In other words, yes you may, it can be loaded, it must be concealed.

[maestro]

Thank you, sir, I have been traveling a lot lately and have not been able to keep up with the changes. I took my CHL course at the end of October, and no mention was made of this. They said the traveling law was still "unclarified." It still may be untested, but this helps.

[KBCraig]

Thank you, sir, I have been traveling a lot lately and have not been able to keep up with the changes. I took my CHL course at the end of October, and no mention was made of this. They said the traveling law was still "unclarified." It still may be untested, but this helps.

LOL -- exactly. When you took your class in October, the law had been "clarified", but no one is sure what the clarification means.

[ghentry]

Per current TX law as of 09/01/2005:
In other words, yes you may, it can be loaded, it must be concealed.

I don't believe it is really that simple. From what I recall from previous discussions on this issue, due to the opinions of several DA's (Harris County DA Chuck Rosenthal for example) you are very likely to be prosecuted and have to win in court.

It is far cheaper to acquire a CHL versus having to pay an attorney to defend you.

Here is quite a long thread on the topic.

http://www.texasshooting.com/TexasCHL_F ... ng&start=0

[EricS76]

Thank you, sir, I have been traveling a lot lately and have not been able to keep up with the changes. I took my CHL course at the end of October, and no mention was made of this. They said the traveling law was still "unclarified." It still may be untested, but this helps.

My girlfriend took her class in the middle of October, and they talked about it for 30 minutes or so. Her instructor basically said the law was a 'feel good' law, and it really didn't change anything from the previous law EXCEPT that the burden of proof was shifted from the defense to the prosecution. He talked about the Harris Co. DA who refused to even acknowledge the law had changed, and the assistant Bexar Co. DA was there to give a speach and said that they would review each case and if there was enough proof that the person was not traveling, Bexar Co. would prosecute. He said basically the change in the law has made them look closer at each case and they now must have a almost clear-cut case before they take it to court.

So basically, it makes it easier to get off the charges if a person were to get arrested, but there is still the chance that a person could get arrested. So technically, the statement "now anyone who can legally own a gun can carry one in their vehicle without a CHL" is not true.

The good news is that if you are truely "traveling", you shouldn't have a problem with the law, in it's new form or old form.

[txinvestigator]

My girlfriend took her class in the middle of October, and they talked about it for 30 minutes or so. Her instructor basically said the law was a 'feel good' law, and it really didn't change anything from the previous law EXCEPT that the burden of proof was shifted from the defense to the prosecution. He talked about the Harris Co. DA who refused to even acknowledge the law had changed, and the assistant Bexar Co. DA was there to give a speach and said that they would review each case and if there was enough proof that the person was not traveling, Bexar Co. would prosecute. He said basically the change in the law has made them look closer at each case and they now must have a almost clear-cut case before they take it to court.

So basically, it makes it easier to get off the charges if a person were to get arrested, but there is still the chance that a person could get arrested. So technically, the statement "now anyone who can legally own a gun can carry one in their vehicle without a CHL" is not true.

The good news is that if you are truely "traveling", you shouldn't have a problem with the law, in it's new form or old form.

Actually that was the opinion of the instructor, one I (as an instructor) don't share. The law is clear, if a person meets the requirments of the presumption, then the person IS traveling. A person traveling is under no more legal authority of being arrested than a person with a CHL. In fact, both travelers and CHL holders get their authority to carry from the same law, section 46.15 of the Texas Penal Code. and traveling is listed BEFORE CHL holders.

[ElGato]

I started to read the Nov./Dec. TSRA journal just a few minutes ago Granny is on the cover and in the legislative report this, "a member who lives in Houston left home with his handgun in a closed ammo box in the back floorboard of his car. He was on his way to visit his mother in Timpson, and he took his handgun to do some target pratice. Timpson is in rural northeastern Texas, not far from Nacogdoches and many counties away from Harris County and Houston.

Before he got out of Harris County, he was in an accident and the attending law enforcement officer searched his vehicle, found the handgun in the closed ammo box, and the man was arrested and charged with a Class A misdemeanor. He did not have a CHL."

Alice Tripp goes on for several more paragraphs about the fact that this should not have happened and of course we know she's right. I don't know what we can do about it.

I guess we have our test case.

Tomcat

[txinvestigator]

I started to read the Nov./Dec. TSRA journal just a few minutes ago Granny is on the cover and in the legislative report this, "a member who lives in Houston left home with his handgun in a closed ammo box in the back floorboard of his car. He was on his way to visit his mother in Timpson, and he took his handgun to do some target pratice. Timpson is in rural northeastern Texas, not far from Nacogdoches and many counties away from Harris County and Houston.

Before he got out of Harris County, he was in an accident and the attending law enforcement officer searched his vehicle, found the handgun in the closed ammo box, and the man was arrested and charged with a Class A misdemeanor. He did not have a CHL."

Alice Tripp goes on for several more paragraphs about the fact that this should not have happened and of course we know she's right. I don't know what we can do about it.

I guess we have our test case.

Tomcat

I wonder when the accident happened? Why would a LEO search a vehicle involved in an accident? Was the driver charged with another crime?

[Charles L. Cotton]

I don't know what we can do about it.

One thing is vote for anyone that runs against Chuck Rosenthal when he's up for re-election. Unfortunately, I think he's not up for re-election until 2008.

BTW, Rosenthal's contention that his public diatribe against HB823 was merely his attempt to help Harris County citizens keep from getting arrested is as bogus as his position on HB823. He was clearly trying to intimidate citizens and keep them from utilizing the new law. If he wants to help citizens, then publically announce that the Legislative intent behind HB823, as set forth in the official House Journal, is crystal clear and his office will not accept UCW charges. If he were to do that, then no arrests would be made by agencies in Harris County and citizens would truly be protected..

During the battle of San Jacinto, the Texans' battle cry was "remember Goliad; remember the Alamo." Our battle cry should be "remember Rosenthal; remember CLEAT."

Regards,
Chas.

[cxm]

The difficulty here is the fact carry without a license is still a crime... it should n't be... but it is...

That said the new law does not do nearly as much as people think if they are caught carrying without a license. The officers can (and in some counties have been told they should) arrest the person carrying without a license.

At this point the carrier gets cuffed, gets a ride to the county jail, booked and has to post bond (For one I would not want to do that anywhere... but particularly not in Dallas, Harris or Bexar Counties... you could literally be in for days until they get around to the paperwork for you to bond out... I don't think I look good in Orange)

So now the carrier bonds out (after paying 10% of the bond to the Bondsman...which he keeps)... has to hire a lawyer to go to court and assert the "traveling" defense. The DA may or may not make much of a fight... if they roll over the case is dismissed... if not you get to pay the lawyer more while the DA tries to send you to jail. All very expensive.

Say the case is dismissed... now a record check on you now shows an arrest for illegal carry.... no conviction, but the arrest stays there. AND you get to pay your attorney $200-$300 an hour for an arrest record. If the case is not dismissed out of hand... then the price goes WAY up.

So other issues aside, which is cheaper? Around $250 you get a CHL and can LEGALLY carry. For $2,000 to $10,000 you can get an arrest record... and may be the the LIBs poster boy for sending someone to jail for carry.

Which do you prefer?

V/r

Chuck

Actually that was the opinion of the instructor, one I (as an instructor) don't share. The law is clear, if a person meets the requirments of the presumption, then the person IS traveling. A person traveling is under no more legal authority of being arrested than a person with a CHL. In fact, both travelers and CHL holders get their authority to carry from the same law, section 46.15 of the Texas Penal Code. and traveling is listed BEFORE CHL holders.

[stevie_d_64]

One thing is vote for anyone that runs against Chuck Rosenthal when he's up for re-election. Unfortunately, I think he's not up for re-election until 2008.

Our battle cry should be "remember Rosenthal; remember CLEAT."

I tried to make some sense of all this, and have resided myself to fall into this camp...Time for a new "Chuck"...

But one thing still remains...Be careful what we wish for...

But certainly, he needs to be shown the door in 2008...

A sticky thread may be in order for us to always remember this...@ years is a lonnnnggg time...

Just a suggestion...

Maybe one that allows additional "well established" anti-2A officials and or candidates to be given a place of notoriety, and remain fresh on our minds...

[EricS76]

My girlfriend took her class in the middle of October, and they talked about it for 30 minutes or so. Her instructor basically said the law was a 'feel good' law, and it really didn't change anything from the previous law EXCEPT that the burden of proof was shifted from the defense to the prosecution. He talked about the Harris Co. DA who refused to even acknowledge the law had changed, and the assistant Bexar Co. DA was there to give a speach and said that they would review each case and if there was enough proof that the person was not traveling, Bexar Co. would prosecute. He said basically the change in the law has made them look closer at each case and they now must have a almost clear-cut case before they take it to court.

So basically, it makes it easier to get off the charges if a person were to get arrested, but there is still the chance that a person could get arrested. So technically, the statement "now anyone who can legally own a gun can carry one in their vehicle without a CHL" is not true.

The good news is that if you are truely "traveling", you shouldn't have a problem with the law, in it's new form or old form.

Actually that was the opinion of the instructor, one I (as an instructor) don't share. The law is clear, if a person meets the requirments of the presumption, then the person IS traveling. A person traveling is under no more legal authority of being arrested than a person with a CHL. In fact, both travelers and CHL holders get their authority to carry from the same law, section 46.15 of the Texas Penal Code. and traveling is listed BEFORE CHL holders.

Actually, it's the opinion of the Bexar County assistant DA too.

"the assistant Bexar Co. DA was there to give a speach and said that they would review each case and if there was enough proof that the person was not traveling, Bexar Co. would prosecute."

He said that case law has established guidelines for what traveling is and isn't. The new law did not define traveling, so the case law guidelines are still used to define traveling. He said the law made it harder to get convicted, but the fact remains that you can still be arrested, go to jail, bond out, possibly go to court, and pay all the fees and charges associated with that. So it's not right in my opinion to tell people they will be fine carrying a weapon in their vehicle all the time. We'd like it to be that way, but it's bad information that could lead to the person going to jail.

[stevie_d_64]

Another one (Bexar Co.), that needs to learn a new word...

When will they ever learn...


"Mess with the bull, you get the horns!"

"Don't tug on Supermans cape..."

"Don't spit into the wind..."

[txinvestigator]

The difficulty here is the fact carry without a license is still a crime... it should n't be... but it is...

NO, its not.

The penal code lists MANY times where "carry without a license" is not a crime.

Section 46.15, which is in its entirety below, clearly shows that the law making carrying a handgun on or about your person DOES NOT APPLY to a person who is; on his own premises or premises under his control, traveling, engaged in a lawful sporting activity in which the handgun is commonly used, is a commissioned security guard and is performing guard duties, possesses a CHL, and others.

These are ALL listed as having section 46.02 not applicable. Carrying a handgun while traveling is no more illegal than carrying one with a CHL. A person with a CHL COULD be arrested if the officer wanted to be a jackass. Same as a person who meets the presumption of traveling.

The issue is many sworn to uphold the law have decided that their own personal belief is what they will enforce, rather than the law.


Text
§46.15. Nonapplicability.

(a) Sections 46.02 and 46.03 do not apply to:

(1) peace officers, including commissioned peace officers of
a recognized state, or special investigators under Article 2.122,
Code of Criminal Procedure, and neither section prohibits a peace
officer or special investigator from carrying a weapon in this state,
including in an establishment in this state serving the public,
regardless of whether the peace officer or special investigator is
engaged in the actual discharge of the officer's or investigator's
duties while carrying the weapon;

(2) parole officers and neither section prohibits an officer
from carrying a weapon in this state if the officer is:

(A) engaged in the actual discharge of the officer's duties
while carrying the weapon; and

(B) in compliance with policies and procedures adopted by the
Texas Department of Criminal Justice regarding the possession of a
weapon by an officer while on duty;

(3) community supervision and corrections department officers
appointed or employed under Section 76.004, Government Code, and
neither section prohibits an officer from carrying a weapon in this
state if the officer is:

(A) engaged in the actual discharge of the officer's duties
while carrying the weapon; and

(B) authorized to carry a weapon under Section 76.0051,
Government Code;

(4) a judge or justice of the supreme court, the court of
criminal appeals, a court of appeals, a district court, a criminal
district court, a constitutional county court, a statutory county
court, a justice court, or a municipal court who is licensed to carry
a concealed handgun under Subchapter H, Chapter 411, Government
Code; or

(5) an honorably retired peace officer or federal criminal
investigator who holds a certificate of proficiency issued under
Section 1701.357, Occupations Code, and is carrying a photo
identification that:

(A) verifies that the officer honorably retired after not
less than 20 years of service as a commissioned officer; and

(B) is issued by the agency from which the peace officer
retired or, for a federal criminal investigator, by a state law
enforcement agency.

(b) Section 46.02 does not apply to a person who:

(1) (As added by L.1997, chap. 1221(4). See other paragraph (1)
below.) is in the actual discharge of official duties as a member of
the armed forces or state military forces as defined by Section
431.001, Government Code, or as an employee of a penal institution
who is performing a security function;

(1) (As added by L.1997, chap. 1261(28). See other paragraph
(1) above.) is in the actual discharge of official duties as a member
of the armed forces or state military forces as defined by Section
431.001, Government Code, or as a guard employed by a penal
institution;

(2) is on the person's own premises or premises under the
person's control unless the person is an employee or agent of the
owner of the premises and the person's primary responsibility is to
act in the capacity of a security guard to protect persons or
property, in which event the person must comply with Subdivision (5);

(3) is traveling;

(4) is engaging in lawful hunting, fishing, or other sporting
activity on the immediate premises where the activity is conducted, or
is directly en route between the premises and the actor's residence,
if the weapon is a type commonly used in the activity;

(5) holds a security officer commission issued by the Texas
Board of Private Investigators and Private Security Agencies, if:

(A) the person is engaged in the performance of the person's
duties as a security officer or traveling to and from the person's
place of assignment;

(B) the person is wearing a distinctive uniform; and

(C) the weapon is in plain view;

(6) is carrying a concealed handgun and a valid license
issued under Article 4413(29ee), Revised Statutes, to carry a
concealed handgun of the same category as the handgun the person is
carrying;

(7) holds a security officer commission and a personal
protection authorization issued by the Texas Board of Private
Investigators and Private Security Agencies and who is providing
personal protection under the Private Investigators and Private
Security Agencies Act (Article 4413(29bb), Texas Civil Statutes); or

(8) holds an alcoholic beverage permit or license or is an
employee of a holder of an alcoholic beverage permit or license if the
person is supervising the operation of the permitted or licensed
premises.

(c) The provision of Section 46.02 prohibiting the carrying
of a club does not apply to a noncommissioned security guard at an
institution of higher education who carries a nightstick or similar
club, and who has undergone 15 hours of training in the proper use of
the club, including at least seven hours of training in the use of the
club for nonviolent restraint. For the purposes of this subsection,
"nonviolent restraint" means the use of reasonable force, not intended
and not likely to inflict bodily injury.

(d) The provisions of Section 46.02 prohibiting the carrying
of a firearm or carrying of a club do not apply to a public security
officer employed by the adjutant general under Section 431.029,
Government Code, in performance of official duties or while traveling
to or from a place of duty.

(e) The provisions of Section 46.02 prohibiting the carrying
of an illegal knife do not apply to an individual carrying a bowie
knife or a sword used in a historical demonstration or in a ceremony
in which the knife or sword is significant to the performance of the
ceremony.

(f) Section 46.03(a)(6) does not apply to a person who
possesses a firearm or club while in the actual discharge of official
duties as:

(1) a member of the armed forces or state military forces, as
defined by Section 431.001, Government Code; or

(2) an employee of a penal institution.

(g) (As added by L.2003, chap. 795(1). See other subsection (g)
below.) In this section, "recognized state" means another state with
which the attorney general of this state, with the approval of the
governor of this state, negotiated an agreement after determining that
the other state:

(1) has firearm proficiency requirements for peace officers;
and

(2) fully recognizes the right of peace officers commissioned
in this state to carry weapons in the other state.

(g) (As added by L.2003, chap. 421(1). See other subsection (g)
above.) For the purpose of Subsection (b)(2), "premises" includes a
recreational vehicle that is being used by the person carrying the
handgun, illegal knife, or club as living quarters, regardless of
whether that use is temporary or permanent. In this subsection,
"recreational vehicle" means a motor vehicle primarily designed as
temporary living quarters or a vehicle that contains temporary living
quarters and is designed to be towed by a motor vehicle. The term
includes a travel trailer, camping trailer, truck camper, motor home,
and horse trailer with living quarters.

and 46.15 (i)§46.15 (i)

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.