Here is an update on the HB823 issue. A "Journal Statement" is an official record if the Texas House of Representatives and it is clear evidence of Legislative intent for a bill. Chairman Keel's Journal Statement is entirely consistent with his recent press release on the intent and effect of HB823. It is also consistent with my recollection of the events and discussions dealing with the scope of HB823, not that that matters one whit!
What does matter is that there is yet more evidence of Legislative intent from the bill's author (the real one). My biggest fear is that people like Harris County DA Chuck Rosenthal will be too proud to admit that they were wrong on HB823 and will prosecute innocent people, rather than “lose face.� Unfortunately, this can happen when an elected official runs their mouth on emotion, rather than unbiased, objective evaluation. I've done it myself in my youth, but I try hard to avoid a repeat performance. Apparently, Mr. Rosenthal missed that lesson in life.
Rosenthal fought hard to kill HB823 and when his efforts failed, he then fought equally hard to get Gov. Perry to veto it. Once again he failed. He couldn’t take losing, so he launched an unprecedented media campaign of fear and intimidation against honest citizens. He appeared on talk shows, wrote an article for the Houston Chronicle and even wrote a Letter to the Editor of the Houston Chronicle. His recent claim that he “went public� in an attempt to protect citizens of Harris County rings rather hollow, in view of his efforts to kill the bill.
When I first started working on CHL in 1980, I wrote a bill for filing in the 1981 Regular Session. (It didn't get filed, because the murder of John Lennon with a handgun in December, 1980 caused a nationwide furor against handguns.) I had a House sponsor who said he had a Senator willing to carry the companion bill. I called Johnny Holmes’ office and talked to his second in command, Henry Onken (sp?), offering to send a copy of the bill to Johnny Holmes. They accepted. A few weeks later, Mr. Holmes was speaking at a rotary club luncheon that was also attended by a Houston Chronicle reporter. In a Chronicle article, Mr. Holmes blasted the “absurd idea of letting anyone carry a gun.� (You can imagine the conversation I had with Mr. Onken after that!)
From 1980 until June, 1996, Johnny Holmes fought hard against the various CHL bills, ultimately losing the battle when SB60 passed on May 16, 1995. In June, 1996, the House Committee on Public Safety conducted an interim study on implementation of SB60 at the Houston City Hall Annex. I was one of the invited speakers, as was Johnny Holmes. When I asked him in the hall if he was going to blast us again, he just smiled and said “I think you’ll be happy with what I have to say.� He then testified that the CHL statute had worked beautifully, CHL holders have proven themselves very responsible citizens, and publically admitted he had been wrong for opposing CHL bills for so many years. In my view, that earned him a great deal of respect. Mr. Holmes went on to state his positions numerous times in print and on television and radio. Only time will tell if Chuck Rosenthal exhibits the same intellectual honesty as did his predecessor. I am not optimistic.
Regards,
Chas.
Journal Statement by Rep. Keel re: HB 823
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 shores up the right of citizens to carry a concealed handgun while traveling by further underscoring the inapplicability of the offense of unlawfully carrying a weapon ("UCW") (Penal Code §46.02) to persons under particular factual circumstances. It does this by providing 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 unprecedented evidentiary standard under §2.05 in conjunction with the substantive terms of the presumption in §46.15, 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 the 75th legislature 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. As originally filed, HB 823 proposed to classify traveling as an "exception" (per Penal Code §2.02) to prosecution for UCW. However, after further consideration, the Criminal Jurisprudence Committee concluded that such an approach would be as ineffective as the 1997 change for the very same reasons.
In passing HB 823, this legislature, like all previous legislatures, has declined to define traveling, avoiding limiting the term to 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. HB 823 instead focuses on creating a specific 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 was added by the Senate in response to concerns that citizens would otherwise possibly inadvertently have a weapon visible in a fast food or bank drive thru, etcetera, and alarm others. (Note, however, that the requirement that the gun be concealed is pertinent only to the issue of whether the defendant is eligible to receive a presumption instruction per the new terms of §2.05. It is not a new element required of a person who is traveling within the context of §46.15).
The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. The new law is intended to 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.
Terry Keel, Chair
Criminal Jurisprudence Committee
