Car carry OK without CHL?

[ThunderDownUnder]

The TX Legislature did a really poor job in passing HB 823.
But it was the best they could get , considering what the sponsors wanted.

Still:
No definition of 'traveling'

A handgun is still a "prohibited weapon".

Handgun carriers (non-CHLs) do not have to ID themselves to LEOs. CHLs do.

What does a handgun transporter/traveler do when they drive on a public street within 300' of school property ? Sounds like a 3rd degree felony to me.

What about when the handgun carrier (non-CHL)drives into a parking lot that has a no guns sign posted? Sounds like a Class A to me.

They would have been better off not making the change.

BTW, here is DPS's take.....

http://www.txdps.state.tx.us/administra ... veling.pdf

Not much there, but it does describe the situation.

[ElGato]

I am still going to go with the way I read it, You are traveling if you meet those five requirements, the meaning is the same to me with or without the words "presumed to be".

Of course I tend to try to keep things simple and what I think will not keep anyone from getting arrested.

Tomcat

[txinvestigator]

A handgun is still a "prohibited weapon".

No, it is not. The penal code (46.02) makes it unlawful to carry a handgun on or about your person under many conditions. Section 46.15 describes when 46.02 does not apply.

Handgun carriers (non-CHLs) do not have to ID themselves to LEOs. CHLs do.

Not really. A person lawfully carrying under a non-applicability other than under 46.15 (b) 6 is not required to inform a LEO he is carrying when simply asked to Identify himself. A CHL holder must present both his CHL and either a TExas DL or ID card IF a LEO demands ID.

What does a handgun transporter/traveler do when they drive on a public street within 300' of school property ? Sounds like a 3rd degree felony to me.

Where so you see that?

What about when the handgun carrier (non-CHL)drives into a parking lot that has a no guns sign posted? Sounds like a Class A to me.

Agreed. If a person is carrying under the traveling non-applicability and drives where there is a no guns sign posted, the person could be trespassing. That would then be a violation of one of the traveling presumptions and the person would be UCW.

[cxm]

Perhaps I was not sufficiently specific... though because we were discussing carry in a vehicle I didn't think what I was saying would be construed to be more general... and at least one person did not understand the point I was making... so let me try to be clearer.

Travel is not defined in statute. It is not well defined in case law. The new law establishes a presumption of travel to people in some many circumstances. That revision to the statue has not been generally interpreted by District Attorneys to be a blanket authorization to carry in a vehicle, rather several have indicated they will prosecute and let a court decide what the law means.

Should someone be arrested and prosecuted, it WILL cost them big bucks even if they win the case... and they will have a police record... PERIOD... no convictions, but a police record none-the-less.

It is not difficult to see how a hostile DA could get a conviction for illegal carry even with the new law. 0700 one morning. Someone is stopped for some minor offense or is involved in an accident. A handgun is discovered in the vehicle. There are no suitcases, no shaving kit nothing to indicate travel. The DA then puts the guy's boss on the stand who says... yeah Joe is very reliable... comes to work every day like clockwork at 0715. Yeah, the location of the wreck is 10 min from our plant... yes... he comes that route every day... Res ipso loquetor (hope my Latin spelling is still ok.)

A presumption that a person is traveling is refutable in court... and not all that difficult for a hostile DA.

Carry without a license is a bad gamble to me.

FWIW

Chuck

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.

[

[ThunderDownUnder]

TX....Gator ,

Clairifications:
RE: Prohibited. Sorry , that's my loose definition. Meaning that a handgun is generally prohibited to carry (as in a UCW charge) unless the old "defenses to prosecution/ does not apply" reasons come into play.
I usually tell folks who disagree with me on this point to slap a handgun in a holster on their hip and just walk into a movie theater, WalMart, or mall and see what happens. ( Don't do it, I'm being a smartass) Be sure to tell the arresting cops that you are an American and have II Amendment rights (they love to hear that part) ! ( Again, I'm a smartass). Or go for a felony and have a non-CHL carry a handgun ( as in a lady with a handgun in her purse) into restaurant that sells or serves alcohol. (Go for the felony!)

RE: LEO ID of someone with a handgun.
I think we are talking semantics here and my too brief statement was misunderstood. My point is that if a LEO makes contact with a CHL, if the CHL is carrying a handgun, when the LEO asks for ID, proof of Finc. Respons./insurance at a traffic stop, the CHL must display the CHL or face possible suspension.
The point I was attempting to make is that a non-CHL/traveler would not be required to tell the LEO that they are carrying a handgun/firearm in the car. And most LEO's usually don't ask the average person if they have any weapons in the car. My police friends see this as a "reverse standard".
I have to agree. This has caused a number of LEO's to warm up to the idea of CHLs.

RE: The topic of the gun-free drug free school zone and UCW comes from 46.11 and definitions in Health and Safety code 481.134.
Basically, if a UCW takes place within 300 ' of school property, activities, etc. then the Class A UCW gets bumped up to a 3rd degree felony.
This is mentioned on page 38 of the the DPS CHL Laws book 2003-2004 edition.

http://www.txdps.state.tx.us/ftp/forms/ls-16.pdf

Sure you could make the current traveling arguement, but there are ADA's in Harris, Travis, Dallas, Collin and Denton counties just waiting to get a test case in a weapon-free school zone. Trust me, please.

As I constantly tell a friend, you can read the laws until your eyes bleed and it doesn't mean that a prosecutor will interpret the law the same way, and not seek an indictment.


J

[txinvestigator]

TX....Gator ,

Clairifications:
RE: Prohibited. Sorry , that's my loose definition. Meaning that a handgun is generally prohibited to carry (as in a UCW charge) unless the old "defenses to prosecution/ does not apply" reasons come into play.

I see what you mean now; however, prohibited weapons are a different part of the PC, and are illegal to even possess.

RE: LEO ID of someone with a handgun.
I think we are talking semantics here and my too brief statement was misunderstood. My point is that if a LEO makes contact with a CHL, if the CHL is carrying a handgun, when the LEO asks for ID, proof of Finc. Respons./insurance at a traffic stop, the CHL must display the CHL or face possible suspension.
The point I was attempting to make is that a non-CHL/traveler would not be required to tell the LEO that they are carrying a handgun/firearm in the car. And most LEO's usually don't ask the average person if they have any weapons in the car. My police friends see this as a "reverse standard".
I have to agree. This has caused a number of LEO's to warm up to the idea of CHLs.

This I agree with.

RE: The topic of the gun-free drug free school zone and UCW comes from 46.11 and definitions in Health and Safety code 481.134.
Basically, if a UCW takes place within 300 ' of school property, activities, etc. then the Class A UCW gets bumped up to a 3rd degree felony.
This is mentioned on page 38 of the the DPS CHL Laws book 2003-2004 edition.

Yep, just like UCW where alcohol is served/sold is a felony rather than a class A. And just to be accurate, UCW within a gun free school zone is the next class higher, on this case a State Jail Felony. And it has to be proven that the person knew he was within 300 feet of the premises of a school.

Sure you could make the current traveling arguement, but there are ADA's in Harris, Travis, Dallas, Collin and Denton counties just waiting to get a test case in a weapon-free school zone. Trust me, please.

I have not heard statements from any other than Harris County, but your advice of caution is right on.

[Kyle Brown]

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.

A "feel good" law? Where on earth did that idea come from? It sounds like this particular instructor quoted Rep. Keel's legislative assistant BEFORE said assistant learned a very valuable lesson.

For years, many Texas courts "defined" traveling. Finally, this new law describes the circumstances under which a citizen will be presumed by a jury to be traveling. It is just that simple. Heck, you could even bet your boots on it.

[EricS76]

Kyle,
A "feel good" law means it's a law that makes both sides "feel good" about it, but really doesn't change much. In this case, the only thing the law changed is the burden of proof. "Feel good" laws are not a new idea my any means, they've been around forever. I'm suprised you haven't heard the term before.

You're right about the new law describeing the cirmstances in which a person is presumed to be traveling. The problem that still remains is that the law DID NOT DEFINE TRAVELING. The law says you're PRESUMED to be traveling if you meet those circumstances. The law does not say you ARE traveling... This is the problem. I wish the law did say "you are traveling if you meet these circumstances", but it doesn't. I feel that by telling people they will be fine if they carry a weapon in their vehicle based on the new law just sets them up for a possible arrest and possible trial down the road.

[Charles L. Cotton]

HB823 is hardly what I would call a “feel good� law. It accomplishes its goal, but it admittedly doesn’t prevent someone from being arrested and taken to trial. Of course, there are some honest DA’s in the State that apparently have said they will not accept charges, if the person met all of the five elements of HB823.

Here is a post I made several weeks ago.

Presumptions can be rebutted, unless the statute expressly states the presumption is irrebuttable. However, with HB823, the only way to disprove the presumption is to disprove the facts underlying the presumption. All you have to do is establish the elements of the presumption. When dealing with HB823, this means that 1) you're in a private motor vehicle; 2) not committing a crime (other than Class C traffic violations); 3) not prohibited from possessing a firearm; 4) not a member of a street gang; or 5) not carrying a handgun in plain view.

The presumption goes to the jury, if there are facts establishing elements 1) through 5). In order to rebut the presumption, the state must prove that one of the listed elements (the facts establishing the presumption) do not exist, and this must be proven "beyond a reasonable doubt." Only by disproving one of the 5 elements will defeat the presumption. It matters not if you have fresh groceries in the car, are on your regular route to and/or from work, or don't have any luggage. It wouldn't matter if you told the officer you were just driving three blocks from your house to a neighbor's home. Can you be arrested? Sure, but most LEO's are not going to waste their time and no responsible ADA is going to accept the charges, unless there is evidence you don't meet one or more of elements 2) through 5).

Note the statute's instructions on what is required to rebut the presumption:

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;
(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;

Also, the Legislative history of this bill makes it abundantly clear that the intent was to allow people to carry guns in their cars without a CHL.

There is a ton if misinformation in the newsgroups on this issue, most of which is based upon erroneous attempts to apply pre-HB823 case law.

Was there a cleaner way to achieve this goal? You bet! However, I suspect the author of the bill felt it be less controversial to focus on "traveling" currently in the Penal Code, rather than make a more overt change that would draw more attention to the bill.

Here is another post I made concerning HB823. As noted in the quote, people are focusing solely on the five elements of the presumption found in HB823, but are ignoring the entirely new language establishing a new category presumptions. This new procedure is very restrictive as to what must be proven to the judge, in order for him to take the issue away from a jury. This is what many DA’s don’t want to talk about!!

I have tried to stay out of this thread, as I have given my opinion on this issue at least twice. However, there is so much misinformation and misunderstanding of evidentiary requirements that I am concerned all of this negative “press� from those of us in the pro-gun community may have a negative impact on this new statute.

Here is the analysis one should make when evaluating the application of this new presumption. First, as has been posted, there are five specific elements of the presumption, all of which must exist for the presumption of traveling to apply. They are as follows:

1. Quote:
(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.



If all five of these elements are present, then the judge must present the presumption to the [/b]jury[/b] and he must instruct the jury that, unless the prosecution disproves at least one or more of the five required elements, and nothing else, then the jury must find that the person was traveling. This language and requirement are new and are found in Tex. Penal Code §2.05(b).

The only way the judge can refuse to submit the presumption of traveling to thejury, along with the required instructions, is if he finds from the evidence as a whole that the presumed fact doesn’t exist.

Here is where the analysis problem begins. People who believe the old case law still applies, and that fresh groceries in the car or short trips will defeat the presumption, are being mislead by the terminology used in the statute, as well as their misunderstanding of evidentiary requirements for taking a case away from a jury.

The language some people are focusing on is the phrase unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. They then argue that this allows the prosecutor to argue to the judge that you were on a short trip or had fresh groceries in the car. This isn’t the way it works folks. In order to take an issue away from the jury, the evidence has to be so clear that reasonable jurors could come to but one conclusion. This means the court can only consider the same elements on which the jury would hear evidence, i.e. can the prosecution rebut one of the five elements of the presumption. The jury can consider only evidence dealing with the existence of those five elements, so the judge is also limited. A smart attorney and a good judge will object to any questions as to whether you had fresh groceries in the car, or how far you were going on that trip, as those questions are irrelevant to the five required elements.

A court must meet a very high standard to avoid presenting an issue to a jury, when evidence exists. If the judge were allowed to consider evidence on elements the jury cannot consider, then the court would enjoy an easier standard, not a more difficult one.

We may well see some prosecutions testing this new law, but it will not come from any intellectually honest prosecutor.

Since this post was made, there have been at least two arrest by HPD, so Rosenthal will now have to opportunity to see if the Court of Criminal Appeals buys his garbage.

Regards,
Chas.

[KBCraig]

Since this post was made, there have been at least two arrest by HPD, so Rosenthal will now have to opportunity to see if the Court of Criminal Appeals buys his garbage.

Do we know any details of those arrests?

[EricS76]

The point i've been trying to make here is that people CAN and DO still get arrested for having a handgun in their vehicle. We'd all like the law to be black and white, yes you can or no you can't, but it's not right now. I think people who are telling others that it is legal, or they will not get arrested for carrying a handgun in their vehicle without a CHL are putting these people in danger. We'd like the law to be the way we want it, but it's not. You CAN get arrested for it. Yes, you can get off the charges, but at what cost? A night in jail, posting bond, paying a lawyer, spending a day in court? Do any of us want to go through that process? When I'm asked this question, I tell people they should be traveling if they have a handgun in their car. Telling people the new law says they will be fine carrying a handgun in their car all the time is irresponsible and dangerous, no matter what they think the law means.

[Charles L. Cotton]

Since this post was made, there have been at least two arrest by HPD, so Rosenthal will now have to opportunity to see if the Court of Criminal Appeals buys his garbage.

Do we know any details of those arrests?

The only one I have any information on was a fellow from Houston that was headed out of town on a visit and was involved in an accident. I think Steve has already posted on that one. I was just told of the second arrest, but I have no information.

Regards,
Chas.

[Charles L. Cotton]

EricS76:
I agree with much of what you said. I suspect the Legislature will be incensed at the likes of Chuck Rosenthal and other DA's that are thumbing their collective noses at the clear and documented Legislative intent behind HB823, as well as the express language of the new statutory presumption language. This wholesale disrespect for the Legislature is likely to lead to far more sweeping changes. (I know someone who has already drafted legislation to that end. )

In view of the intellectually dishonest response by Rosenthal and his ilk, I too will not tell someone to simply put a pistol in their car and don't worry. Of course, people who live in counties with honest DA's can do so, as they won't accept UCW charges and the agencies in their counties won't bother making arrests they know won't stick.

Regards,
Chas.

[EricS76]

Charles,
I hope the legislature will enact changes to the law that leaves no doubt what is lawful and what is not. It's unfortunate that it wasn't done that way in the first place.

[John]

Since this post was made, there have been at least two arrest by HPD, so Rosenthal will now have to opportunity to see if the Court of Criminal Appeals buys his garbage.

Do we know any details of those arrests?

One of them is referenced in the TSRA Sportsman November/December Issue. Bottom of Page 7 - 1st column of page 8. Go to http://www.tsrapac.org/ and click the TSRA Sportsman link near the top of the page. Then download the Nov/Dem issues in PDF format.