I can't claim to be the lone voice in the wilderness on this side of the HB823 issue. The NRA general counsel has the same opinion, as do two attorneys from a very famous criminal defense firm in Houston, with whom I spoke yesterday. I'm sure there are others, but these are the folks with whom I have spoken. Admittedly, there is at least one attorney of whom I am aware that disagrees with my interpretation.
Let me also say that being "right" in interpreting a statute doesn't mean the appellate courts are going to agree. There is an old saying in the law, "bad facts make bad law." This simply means that a dirt-bag defendant who may be a despicable character, but who also meets the five elements of the traveling presumption, is not the defendant we want to see take this issue to through the appellate courts. We want a kindly grandmother on her way to do charity work. If the dirt-bag gets there first, these "bad facts" may well result in a court that absolutely will not let this guy off, and they write "bad law" to get the desired result.
I think the provisions of HB823 are clear; I think the requirements for taking an issue away from a jury are clear to attorneys; so I think HB823 should and will achieve the goal of allowing people to carry handguns in their cars, if they meet the elements of the traveling presumption. Is this a guarantee? Absolutely not. I continue to recommend a CHL for two reasons. First, to avoid the ride through the system to prove you are right. Secondly, as hard as it may be to believe, some darn judge may not agree with me.
On more than one occasion, I have had a judge respond to case law I offer by saying something to the effect that "that may be the law down the street (1st or 14th Courts of Appeals) or in Austin (Supreme Court), but not in my court." Surprisingly, this is not a rare occurrence, so I won't guarantee anything. However, I firmly believe that any intellectually honest judge will have to rule that the presumption can only be rebutted by disproving one of the five required elements.
As to the club and knife issue, Renegade is correct in that the presumption seems at first blush to potentially exempt anyone carrying a handgun from all of 46.02. However, as he also noted from another of my posts, Tex. Penal Code §1.05, expressly states “(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.� Since elements 3 and 5 of the presumption deal with firearms and handguns, respectively, and since the entire Legislative history of HB823 shows Legislative intent to have been to allow carrying of handguns in cars, §1.05 will likely operate to limit the exemption from §46.02 to handguns.
I don’t like §1.05, I think it’s dangerous, violates centuries of judicial wisdom and decisions, but it’s the law, until and unless it’s challenged in the U.S. Supreme Court. (Maybe it has been, I don’t know.) This opinion has nothing to do with a desire to carry a club or an illegal knife, I just don’t like §1.05. Anyway, I don’t know how to fight with a knife and I’m too old to be swing a club for very long!
We've had some fun with this discussion, but I want to say in all sincerity that I understand the opposing argument and I believe this is an issue on which reasonable minds can differ.
Okay, break from the group hug.
Regards,
Chas.
