New Traveling Law

[Charles L. Cotton]

Jim, no offense taken.

Let me clear up a misunderstanding I obviously created. When I say attorneys should be writing the bills that ultimately become law, I don't mean that only attorneys should be elected to the House or Senate. Neither do I mean that attorneys should be the only elected representatives who should decide what laws should be passed. I simply mean I think the people who reduce the desired legislative intent to writing should be attorneys. The reason I pointed out that less than 50% of Texas House Members and Texas Senators are attorneys is to counter the common belief that lawyers control the legislature. If we did, you certainly would never have seen the so-called "tort reform" bill a/k/a Insurance Company Protection and Profit Act. (Sorry, I couldn't resist.)

Much of the convoluted language we wind up with in bills/statutes is not the result of attorneys desiring to use such language from scratch, but is the result of compromises between friends and foes on any given issue. As a very general statement, the more opposing interests have to compromise, the more difficult it is to craft a bill that will yield the desired result, and do so within the constraints of the Texas Constitution. Another problem with going to “plain language� is that we are usually changing existing statutes that are written in “legalese� making it impossible to use “plain language� without an entire rewrite of the statute. Complete rewrites are very difficult and time consuming and are only rarely attempted.

So, to disburse the lynch mob, I do not believe only attorneys should decide what the law should be, only that they are better equipped to reduce the idea to writing that will be enforceable.

Regards,
Chas.

[one eyed fatman]

jimlongley

Corporate America, lawyers and politicians know one thing. As long as they can keep the people confused, disoriented and in the dark they have a job. That's what it's all about for them.

Here's a few examples. As long as Microsoft keeps their operating system screwed up they are needed and keep making money. As long as lawyers (or anybody else) write laws that are confusing they have a job. As long as contract engineers keep drawing parts that they know don't fit military trucks they have a job.

The only difference between them and your average 7-11 robber is that they are educated.

[ElGato]

This afternoon I am going to drive my personal motor vehicle ( travel ) to Lowe's and pick up some new door and window trim for our den.

This thing may not end up right, especially if we help the anti's by fighting against it ourselves, but I believe that this was the intended definition.

Tomcat

[one eyed fatman]

My CHL takes all the guesswork out of traveling laws.

[jimlongley]

Jim, no offense taken.

Thanks, I assure you that none was meant.

I simply mean I think the people who reduce the desired legislative intent to writing should be attorneys.


The reason I pointed out that less than 50% of Texas House Members and Texas Senators are attorneys is to counter the common belief that lawyers control the legislature. If we did, you certainly would never have seen the so-called "tort reform" bill a/k/a Insurance Company Protection and Profit Act. (Sorry, I couldn't resist.)

But then there's my example of NY's "Assembly Bill Drafting Committee" to consider too. All attorneys, working for the legislature writing bills, and they were merrily, in many more cases than the one I cited, writing the legislation to satisfy their boss, not the legislator who submitted the original bill. I would have to say that it should be the responsibility of the legislator who submitted the original to make sure that what he got back resembled what he submitted, but unfortunately the "overworked" legislators of NY State were far too busy to do sensible things like that.

Much of the convoluted language we wind up with in bills/statutes is not the result of attorneys desiring to use such language from scratch, but is the result of compromises between friends and foes on any given issue. As a very general statement, the more opposing interests have to compromise, the more difficult it is to craft a bill that will yield the desired result, and do so within the constraints of the Texas Constitution. Another problem with going to “plain language� is that we are usually changing existing statutes that are written in “legalese� making it impossible to use “plain language� without an entire rewrite of the statute. Complete rewrites are very difficult and time consuming and are only rarely attempted.

So, to disburse the lynch mob, I do not believe only attorneys should decide what the law should be, only that they are better equipped to reduce the idea to writing that will be enforceable.


Regards,
Chas.

And I agree with you, at least in principle, it's just that I see our system of government, whether you call it a republic (which I think it is) or a democracy, has such pitfalls built in and it's those of us who are "politically aware" who must try to be the ones who watch the watchers.

[EricS76]

http://www.glocktalk.com/showthread.php ... did=426029

Here's a link from the "Cop Talk" section of Glock Talk. My favorite post is "you can beat the rap, but you can't beat the ride". And he's got a point. Check it out, it's an interesting thread FROM THE OFFICER'S point of view. Those are the guys decideing if you go to jail or not, ya know.

[tomneal]

DA clarifies handgun law

http://www.chron.com/cs/CDA/ssistory.mp ... al/3330477

Regarding the Chronicle's Aug. 29 article "THE LEGISLATURE / 700 new laws — which one's yours?": There seems to be some confusion resulting from the recent passage of a bill that creates for presumption of a "traveling defense" to the charge of unlawfully carrying weapons.

It is still against the law for individuals to carry weapons in their vehicles unless that person has a concealed handgun license issued by the Texas Department of Public Safety or is covered by some other exception in the law.

Traveling has been an exception to handgun prohibitions almost since the days of the Republic of Texas. However, the courts and the Legislature have never seen fit to define "traveling." Whether someone is actually traveling is a question for the finder of facts in trial, so it would vary from case to case.

Presumptions, like other legal matters, are to be determined in court and not on the street. Police officers, therefore, have the discretion to arrest people for the unauthorized possession of handguns.

This office will continue to prosecute those who "carry handguns on or about their person" when we have evidence to rebut the presumption. Last year, this office handled about 5,000 weapons cases. I do not expect a decrease in that number because of this change in the law.

I would hate to see someone arrested and charged with a handgun offense simply because they were misinformed about the applicability of this legislative change.

CHARLES A. ROSENTHAL JR. Harris County district attorney, Houston

[DiverDn]

http://www.chron.com/cs/CDA/ssistory.mpl/front/3330553

Aug. 30, 2005, 1:35AM

DA opposed to new handgun law
Pistol-toting drivers without a permit will still be prosecuted, Rosenthal warns
By CLAY ROBISON
Copyright 2005 Houston Chronicle Austin Bureau

AUSTIN - Motorists arrested for carrying pistols in their cars without a concealed handgun license will continue to be prosecuted in Houston, despite a new law that purports to give them a legal defense, Harris County District Attorney Chuck Rosenthal said Monday.
ADVERTISEMENT

Although the sponsor said the law should reduce the number of arrests for unlawful handgun possession, Rosenthal said it won't change enforcement practices in Houston after it goes into effect on Thursday.

"It is still going to be against the law for (unlicensed) persons to carry handguns in autos," the district attorney said, adding that the new legal defense can still be challenged by prosecutors.

The new law, enacted during the regular legislative session last spring, seeks to clarify a longtime law that allowed Texans to carry handguns while traveling, a qualification that was subject to a number of inconsistent court interpretations over the years.

The new statute says a person is "presumed to be traveling" if he or she is in a private vehicle, is not engaged in criminal activity (except for a minor traffic offense), is not prohibited by any other law from possessing a firearm and is not a member of a criminal street gang.

It also requires the handgun to be concealed in the car, although weapons can be discovered by officers during routine traffic stops if a driver gives permission for a car to be searched or opens a glove compartment where a gun is secured to retrieve an insurance card or other documentation.

"The intent of the law is to keep innocent people from going to jail," said the sponsor, Rep. Terry Keel, R-Austin, a former prosecutor and former Travis County sheriff who now is a candidate for the Texas Court of Criminal Appeals.

The law, House Bill 823, was supported by the National Rifle Association and the American Civil Liberties Union and opposed by various law-enforcement groups.

More than 237,000 Texans have concealed handgun licenses. But many other law-abiding adults don't have licenses because they are disqualified by exceptions that have nothing to do with public safety, said Alice Tripp, a lobbyist for the Texas State Rifle Association, an NRA affiliate.

Tripp said people who have defaulted on student loans, who owe the state sales tax or franchise tax payments or are behind in child support payments are ineligible to receive a license.

Keel said he hoped the law will prompt police officers to think twice about arresting motorists who meet the new legal presumption and spare them the expense and "indignity" of arrest and prosecution.

Otherwise, he said, "They basically are going to arrest innocent people and make them prove their innocence."

Rosenthal and Rob Kepple, executive director of the Texas District and County Attorneys Association, disagreed.

Rosenthal said the new presumption about "traveling" doesn't define what constitutes traveling and can be challenged in court by prosecutors, leaving it to juries to decide verdicts "based upon the facts of the case."

A prosecutor could summon witnesses to successfully argue that a defendant wasn't traveling because he was simply "driving around the corner for a carton of milk," Kepple said.

"I really don't think (the law) should affect how police officers respond in arresting somebody," he added.

Houston Police Department spokeswoman Johanna Abad indicated Houston police were going to take their advice from Rosenthal's office.

Unlawful possession of a weapon is a class A misdemeanor punishable by as much as one year in county jail and a $4,000 fine. Rosenthal said most cases are resolved through plea bargains.

The prosecutor said he asked Gov. Rick Perry to veto the bill because "taking weapons off the street is a pretty good deal." He said his office handled about 5,000 weapons cases of varying degrees of severity last year.

Tripp called Rosenthal's opposition a case of "sour grapes ... and a threat to the general public."

clay.robison@chron.com

[stevie_d_64]

My CHL takes all the guesswork out of traveling laws.

+1, ditto, right-on...

But some day I might dissagree with you, and not really listen to what you say...

Is that ok??? Just thought I wold get that straightened out...

No offence intended...

[dolanp]

Well it sounds like what the DA is really saying is that if they think they can prove that you don't meet the five requirements in the new law they will arrest and prosecute you. Or perhaps they'll waste money arresting you and seeing if they can drum up some evidence and if not they'll cut you loose.

[Charles L. Cotton]

Here is the text of Chairman Keel's press release on the effect and Legislative intent behind HB823. It will be interesting to see if Harris County DA Chuck Rosenthal will retract his unfounded position on HB823.

Regards,
Chas.

TO: Media
FROM: Terry Keel, State Representative, Austin
RE: HB 823 by Keel, Effective 9/1/05
Clarifies Right to Carry Handgun in Vehicle While Traveling
DATE: August 30, 2005

PRESS RELEASE

It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of “traveling�. The legislature has likewise never defined “traveling� because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.

HB 823 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.

HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang.

In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling� where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way.

HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. 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. By enacting this evidentiary standard in conjunction with the presumption, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler.

It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason for a 1997 legislative change which replaced the “defense� of traveling with a classification of the statute of UCW as instead entirely “inapplicable� to a traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term “traveling� was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun while traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling.

In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be “crossing county lines� may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. The new statute instead focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers.

There are several additional important points that should be made in regard to the enactment of HB 823 and its interface with current law.

HB 823 does not give “everyone the right to carry a gun in a car�. State and federal laws applicable to firearms must be noted in conjunction with the new statute’s terms, particularly the limitation of the presumption to persons who are “not otherwise prohibited by law from possessing a firearm.� For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions.

Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction.

The presumption also does not apply where the gun is openly displayed.

The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling----a right to which they are already entitled.

For further information, contact State Representative Terry Keel, 512-463-0652.

[one eyed fatman]

My CHL takes all the guesswork out of traveling laws.

+1, ditto, right-on...

But some day I might dissagree with you, and not really listen to what you say...

Is that ok??? Just thought I wold get that straightened out...

No offence intended...

Somebody here listens to me? I didn't know! :D

[jimlongley]

This thing with the Harris County DA points up a little more of what I was saying too. Here we have a highly paid, and I suppose respected, attorney, who says the law is no good and that he will defy it. Can't he read?

[Charles L. Cotton]

This thing with the Harris County DA points up a little more of what I was saying too. Here we have a highly paid, and I suppose respected, attorney, who says the law is no good and that he will defy it. Can't he read?

When I first posted Chairman Keel's press release, I included an editorial about Chuck Rosenthal, but I quickly deleted it. I want to do some more homework, before I launch in against him. However, I'm very concerned about his attitude about HB823, and other things for that matter. He strongly opposed HB823, then tried to get the Governor to veto it. If he honestly feels HB823 doesn't change anything, why did he fight so hard to kill it. Opposing HB823 was bad enough, but ignoring it and threatening to prosecute Harris County citizens to obtain by intimidation that which he couldn't achieve in the Legislature or the Governor's Office is unacceptable for an elected official.

Regards,
Chas.

[one eyed fatman]

Chuck Rosenthal has had it to easy for to long. Time to get someone in there that isn't spoiled rotten.