New Traveling Law

[orc4hire]

[txinvestigator]

In light of the recent clarifications in what constitutes “traveling� while carrying a pistol, here is HPD’s policy:

Houston Police To Enforce Unlawful Carrying of Weapons

September 1, 2005 -- Generally, Texas law prohibits a person from carrying a weapon in a motor vehicle unless that person is "traveling," complying with another defense under the law, or is a concealed handgun license holder.

While the penal code does not specifically define "traveling," Texas case law provides guidance regarding this matter. House Bill 823 creates a presumption in Section 2.05 of the Texas Penal Code that a person is "traveling" in certain circumstances. A person is presumed to be traveling if he or she is:
* In a private vehicle
* Not otherwise engaged in criminal activity other than a traffic offense
* Not otherwise prohibited by law from possessing a firearm, being a felon
* Not a member of a criminal street gang
* Not carrying a handgun in plain view

This change does not prevent law enforcement officers from arresting a person who is in a motor vehicle for carrying a handgun under Section 46.02 of the Texas Penal Code if the person is not "traveling."
A Houston police officer will speak with a motorist and conduct a thorough investigation to determine if the motorist was in the course of "traveling," should a weapon be located in a vehicle. Officers will then contact the Harris County District Attorney's office to determine if the charge of unlawfully carrying a weapon is appropriate.

And, if the person meets the listed criteria, the investigation should determine that the person is traveling. If they chose to arrest the person anyway, I would think that that would place the cop and the District Attorney in the position of being sued. I mean, if you arrest someone you know is not breaking the law, that's certainly wrongful prosecution, prosecutorial misconduct, and probably an assortment of other ethics violations.

Let a few cops get sued, a few prosecutors disbarred and/or sent up on criminal charges and they might be a little less frisky in the future.


But the most important thing to remember is that one requirement is that the gun be concealed. If the cop doesn't know it's there, he can't arrest you for carrying it. Keep it hidden and do not volunteer any information. If the HPD choses to operate outside the law, as a criminal gang, they deserve no more respect or cooperation than any other criminals.

And even the HPD response misses the fact that traveling is not a defense. The penal code states that 46.02 DOES NOT APPLY to a person who is traveling. It used to be a defense to prosecution, but no more.

[stevie_d_64]

[quote="orc4hire]Let a few cops get sued, a few prosecutors disbarred and/or sent up on criminal charges and they might be a little less frisky in the future.

But the most important thing to remember is that one requirement is that the gun be concealed. If the cop doesn't know it's there, he can't arrest you for carrying it. Keep it hidden and do not volunteer any information. If the HPD choses to operate outside the law, as a criminal gang, they deserve no more respect or cooperation than any other criminals.[/quote]

I would almost say I fall on this side of the discussion...

But then again if this was a reality, then where does that leave us???

Non-CHL'ers running around with firearms in their vehicles believing its ok to do so because there is this law that say they can, but the enforcement side of the coin says "no"???

And no duty to inform L.E., like we are required to do per the law???

And a DA who is determined to make prosecutions against those who mis-interpret the law...

I like Chuck, and I think he does a great job; but I do agree, he has definitely shot himself in the foot with the RKBA community in this area...

But you have to really dig deep inside yourself to truely understand that he may be right about this...I'm sure to catch some heat about this comment, and thats ok...Its just a gut feeling I have, that reinforces my idea that this still may not have been a good law to implement...

But the bottom line of this is that this law does not effect me, it has created some good discussion, I'm either confused, or just don't understand where the good and the bad side of this is just yet...

[orc4hire]

[stevie_d_64]

I agree with you...I'm still kinda confused everytime I check on this thread...

I even talked to Chuck Rosenthal about it...

I have some mixed feelings about that conversation...And am still not sure why he thinks this way...

[orc4hire]

[stevie_d_64]

http://www.godofwar.com/ezekial.wav

Interesting passage...

[ElGato]

It seems that he is still trying to play by the old rules, he wants the police to use where you are going and if you are leaving the county rather than the five new requirements and Yes, I am effected even though I have a license because it is an infringement of our rights!
Tomcat

[Greybeard]

In a couple of other threads, I'd commented that I was anxious to get back for DPS instructor renewal skul and hear their "take" on this ... Well, that happened yesterday in Georgetown.

Both the female presenter from the CHL unit and subsequently the lady lawyer gave us handouts entitled New Law on Carrying Firearm While "Traveling" (House Bill 823, 79'th Regular Leqislative Session, amending Penal Code Sections 2.05 and 46.15.

I think they said the same thing had just been posted on the DPS web site. Excerpts:

"The change in the law, effective Sept. 1, 2005, places the burden of proof on the State rather than the citizen as to whether or not the citizen was traveling."

"Some local law enforcement and prosecuting agencies have indicated that they will continue to make arrests and file charges when they encounter citizens carrying handguns in motor vehicles and will allow juries to determine whether citizens were traveling. DPS has no authority to determine or to comment on how this law will be enforced by the various local law enforcement and prosecuting agencies in the State of Texas."

[tomneal]

Here is the link to the DPS comments

http://www.txdps.state.tx.us/administra ... sindex.htm

See the PDF labeled: "Traveling with a Handgun"

[ElGato]

It would be nice if the first time a case was tried Mr. Keel could be there to be questioned about the intent of the law.
Tomcat

[stevie_d_64]

Charles stated:

"While HPD is technically correct in that an arrest can be made and the defendant will have to go to court to benefit from the new presumption, to make an arrest under those circumstances is wrong. Why put a person through the system, if you know they are going to be acquitted? The only answer is the hope that the harassment value will keep people from carrying."

-------------------------------------------------------------------------------------

Bingo...

Nail on the head...

Give that man a cigar...

I've been waiting for someone else to say it...Thanks Chas...

Frustrating isn't it???

I don't think Chuck Rosenthal really buys into it, but somebody must have really tightened the screws on him to come out publically on this issue...

I just got this gut feeling that obviously something or somebody else is pulling the strings on this thing...

[Charles L. Cotton]

Sorry Steve, Rosenthal is calling his own shots on this. He doesn't answer to anyone except the voters. The elected DA has far more influence on the law enforcement agencies in his county than the other way around. He fought like a tiger to kill HB823, but he did so quietly hoping his opposition wouldn't come out. He hates the concept so badly he’s willing to continue his efforts to kill implementation of HB823, even if it means going public.

HPD is taking their cue from Rosenthal, not the other way around. If the DA had said his office won't take charges, then HPD's policy would be not to make an arrest that’s going nowhere.

Something everyone needs consider is that Chairman Keel was Travis County Sheriff as well as an Asst. District Attorney, before running for the Texas House of Representatives. He’s an attorney and knows criminal law.

BTW, Rosenthal's statement that every other DA in Texas agrees with him is garbage. I looked at the forum for DA's in Texas and there are many who were taking his position, many were not. I also saw a copy of a news article about the "confusion" caused by HB823. The article included quotes from law enforcement agencies and DA's stating they won't make arrests or accept charges, as it was clear to them!. I'll try to find it at the office on Monday and I'll post it.

Regards,
Chas.

[Paladin]

New article on the subject (from Waco):

"Gun law stumping officials

By Cindy V. Culp Tribune-Herald staff writer

Friday, September 16, 2005

In what seems like a bad punch line, a new law intended to clarify when Texans can legally have handguns in their vehicles has further confused the issue.

Across Texas and in McLennan County, law enforcement agencies and prosecutors are interpreting the law in different ways. At issue is a section of the penal code that dictates when people can have handguns in their vehicles without a concealed handgun license.

For years, Texans have had the right to carry handguns in their vehicles as long as they are traveling. But since neither the Legislature or the courts defined what “traveling� was, different jurisdictions enforced the law in different ways.

Some police agencies basically accepted all trips made in a private vehicle, even if it was just to the store and back. Others required people to be traveling from city to city, across county lines or even to another state.

To stop that uneven application of the law, Rep. Terry Keel, R-Austin, authored House Bill 823 this spring. It says people are presumed to be traveling as long as they are in a private vehicle, are not engaging in criminal activity other than a minor traffic violation, are not a member of a criminal street gang and are not prohibited by any other law from possessing a firearm.

Keel said he chose those terms because they are objective measures police can quickly check in the field. He said the way the law is worded gives a legal presumption in favor of citizens. That means as long as someone meets that criteria, he or she should be allowed to go on his way and not fear arrest.

The new law took effect Sept. 1.

“I don't think there is any ambiguity at all,� said Keel, who has served as both the sheriff and an assistant district attorney in Travis County.

But some of Keel's colleagues in law enforcement disagree.

“Regardless of what the Legislature intended, what they wrote on paper is unclear,� said Shannon Edmonds, a staff attorney for the Texas District and County Attorneys Association. “That happens a lot.�

The problem, Edmonds said, is that the state cannot say something is a crime and then prohibit police from arresting people for it. What it can do, however ? and what he believes the new law does ? is create a defense to prosecution.

To illustrate the difference between the two concepts, Edmonds gave the example of a person fatally shooting someone. Although shooting someone in self-defense is legal, that doesn't mean the shooter won't be arrested at the scene of the crime for murder.

In the same way, although traveling may be legal justification for having a gun in a vehicle, that does not mean people are exempt from arrest for unlawfully carrying a weapon, Edmonds said. Put more commonly, people might beat the rap, but they won't beat the ride.

“A defense is a legal concept for the court,� Edmonds said. “There is no such thing as a defense from arrest. There's just a defense from prosecution. This issue is going to have to be hammered out in the courts.�

Realistically, though, it will be a year or longer before a case concerning the new law will make its way into the appellate system, Edmonds said. With the next legislative session less than two years away, lawmakers will likely take new action before the issue is settled in the legal system, he said.

“(The bill) was a compromise solution to a difficult problem and probably is not the final word on this from the Legislature because the results won't be satisfying to anyone,� Edmonds said.

In the meantime, some police agencies say they are left in limbo. In Waco, for example, city attorney Art Pertile said his interpretation is similar to the Texas District and County Attorneys Association's.

The “presumed to be traveling� language refers to a part of the penal code which says prosecutors must rebut presumptions at trial, Pertile said. The fact that it references prosecutors and a trial signals an arrest has bee made, he said. Thus, he thinks the law is a defense rather than an exemption, he said.

Over at the Waco Police Department, officers aren't quite sure what to think, said spokesman Steve Anderson. On one hand, the law is fairly clear that people should not be arrested if they meet the “traveling� terms, he said.

On the other hand, the law also seems to indicate an officer can still arrest someone if he can articulate why he thinks a person is not truly traveling, Anderson said. With that leeway, each case is up to the officer's discretion, he said.

“It depends on a lot of things,� Anderson said. “What time of night is it? What time of day is it? What are the circumstances? What stories are they telling you? Do they match if there is more than one person in the car? Do you know something to be a lie? ... I hate to say it this way, but sometimes it comes down to that gut punch that this is not a good thing.�

For now, though, the department is waiting on clarification from the district attorney's office, Anderson said. Until it gets that, officers may be less likely to arrest someone and instead just confiscate the gun. If prosecution is deemed necessary, a warrant could later be issued for that person's arrest, he said.

McLenann County District Attorney John Segrest said he is not ready to comment on the law because he has not had time to research it.

Some local agencies don't feel clarification is necessary. In Robinson, officers won't arrest people who meet the specifications laid out in the new law, said Lt. Tracy O'Connor. In the past, they made such arrests on occasion, he said.

“I think it's pretty self-explanatory,� O'Connor said of the change.

Bellmead Police Chief Robert Harold also said he thinks the new law is fairly clear. His officers won't arrest people who have handguns concealed in their vehicles, unless they have reason to believe they are engaged in crime or about to be, he said.

At the state level, agencies seem to be divided among urban and rural lines, Edmonds said. Rural jurisdictions are more likely to view the new law as an exemption from arrest, rather than defense from prosecution, he said.

cculp@wacotrib.com"


http://www.wacotrib.com/news/content/ne ... ncars.html