HB 1815 bill analysis

[seamusTX]

The engrossed version of the bill is here. This version has the new text underlined and the old text struck out (which I don't think is possible in this format).

Let's look at what has changed.

Section 46.02, Penal Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) A person commits an offense if the person
intentionally, knowingly, or recklessly carries on or about his or
her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the
person's control; or
(2) inside of or directly en route to a motor vehicle
that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person
intentionally, knowingly, or recklessly carries on or about his or
her person a handgun in a motor vehicle that is owned by the person
or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(B) prohibited by law from possessing a firearm;
or
(C) a member of a criminal street gang, as
defined by Section 71.01.
(a-2) For purposes of this section, "premises" includes
real property and a recreational vehicle that is being used as
living quarters, regardless of whether that use is temporary or
permanent. In this subsection, "recreational vehicle" means a motor
vehicle primarily designed as temporary living quarters or a
vehicle that contains temporary living quarters and is designed to
be towed by a motor vehicle. The term includes a travel trailer,
camping trailer, truck camper, motor home, and horse trailer with
living quarters.

For starters, it remains illegal generally to have on or about one's person a handgun, etc.

This bill puts the exceptions of "the person's own premises or premises under the person's control" and motor homes, etc., directly into 46.02.

It also makes carrying in "a motor vehicle that is owned by the person or under the person's control" an exception unless " the handgun is in plain view; or the person is engaged in criminal activity..."

The bottom line, as I see it, is that anyone who can legally possess a handgun will be able to have it at home, in any premises under his control, in his motor home, or vehicle.

As carrying in a vehicle is an exception, rather than a defense to prosecution, the police will not be able to arrest people for carrying in their cars unless the handgun is in plain view or the person is engaged in criminal activity other than a traffic violation.

The new law also allows having a handgun "directly en route to a motor vehicle..." This is a little strange. As I read it, someone can carry a handgun from premises where it is allowed, to a vehicle where it is allowed, but not in the other direction.

It seems that non-CHL holders who have a handgun in their car are not obligated to tell the police, whether they are asked or not.

A non-CHL holder still has to get the handgun from the car to another place in a legal fashion. I would guess unloaded and cased would do. This is a concern for anyone who wants to car carry without a CHL: They need to be prepared for the car breaking down.

The old traveling exception is unchanged.

I've left out a bunch of minor changes. Anyone else see anything worth discussing?

- Jim

[frankie_the_yankee]

I think you pretty much covered it.

"As carrying in a vehicle is an exception, rather than a defense to prosecution, (emphasis added) the police will not be able to arrest people for carrying in their cars unless the handgun is in plain view or the person is engaged in criminal activity other than a traffic violation. "

This is the key change. Those rogue DA's in Harris and Tarrant counties will have to find some other way to get their jollies, because harassing law-abiding gun owners just got a lot tougher.

[seamusTX]

...harassing law-abiding gun owners just got a lot tougher.

I agree.

Now, has arresting actual criminals also become more difficult?

- Jim

[frankie_the_yankee]

...harassing law-abiding gun owners just got a lot tougher.

I agree.

Now, has arresting actual criminals also become more difficult?

- Jim

Maybe, but I doubt it. LEO's will probably need to re-examine their procedures when making a traffic stop. But I do not see any major changes coming.

The effect of this law is to let good guys carry guns in their cars whether they have CHL's or not.

But as we know, good guys pose no danger to LEO's. It's only the bad guys who do. And though they can't legally carry now, some do. And so they will continue to do with or without this bill.

So I don't see a big difference in what street cops need to safely deal with. It's not guns that are the problem. It's bad guys with guns. And they will have them whether the law allows it or not.

Also, if someone is a bad guy, they most likely have a record. This makes them a prohibited person. So if caught, they are subject to arrest under the new bill just as before.

Likewise drunks, people possessing small (or large) amounts of dope, etc. They all remain fully "arrestable" and "convictable".

[seamusTX]

I don't quite understand "Terry stops" (not for lack of trying). That's a situation where a police officer has reasonable suspicion (not probable cause) to check a person for weapons. Terry stops quite often result in arrest and prosecution for weapons or drug offenses.

Under this law, if the police find a concealed weapon in a vehicle, and the driver is not a prohibited person or otherwise engaged in a crime, having a weapon will not be an offence.

I wonder how many actual criminals are charged with UCW only. I mean criminals who have committed crimes like assault and robbery but not been charged with those crimes for lack of evidence.

I'm interested in what the police officers here will have to say.

- Jim

[Charles L. Cotton]

I'd like to clarify something about the TPC §46.02. The subsections dealing with a person's premises and cars isn't actually an exception; they are elements of the crime itself. This means they have to be present before a violation exists. In this situation, the elements are 1) possession of a handgun, knife, etc.; and 2) other than on your own premises or car.

The effect is exactly as you describe, but being an element of a crime, rather than an exception, is significant.

Chas.

[seamusTX]

The effect is exactly as you describe, but being an element of a crime, rather than an exception, is significant.

Thanks.

I'm not ashamed to admit, not having attended law school, my understanding of the distinction between various concepts like exception, presumption, and affirmative defense to prosecution sometimes elude me. I've read explanations, but I don't understand them on a fundamental level, the way I understand Newton's laws.

- Jim

[txinvestigator]

A non-CHL holder still has to get the handgun from the car to another place in a legal fashion. I would guess unloaded and cased would do. This is a concern for anyone who wants to car carry without a CHL: They need to be prepared for the car breaking down.


- Jim

UCW makes no mention of the loaded condition of the weapon, or whether it is cased or not. That means a gun in unloaded condition or cased would still be chargeble under UCW, if it meets the other elements.

[Liberty]

A non-CHL holder still has to get the handgun from the car to another place in a legal fashion. I would guess unloaded and cased would do. This is a concern for anyone who wants to car carry without a CHL: They need to be prepared for the car breaking down.


- Jim

UCW makes no mention of the loaded condition of the weapon, or whether it is cased or not. That means a gun in unloaded condition or cased would still be chargeble under UCW, if it meets the other elements.

On a practical level I don't believe most prosecutors or LEOs will have an opportunity or a willingness to push this issue. If the weapon is concealed it is a very limmted exposure. I would expect all but the most anti judge or juries would be sympathetic towards someone returning home while legally carrying. This should be easy to fix in 2009.

[seamusTX]

UCW makes no mention of the loaded condition of the weapon, or whether it is cased or not. That means a gun in unloaded condition or cased would still be chargeble under UCW, if it meets the other elements.

We've discussed this quite a while back, and you more or less convinced me of the opposite.

If someone who is not a CHL holder goes to a gun store and buys a pistol, how does he legally get from the counter to his vehicle? What if he takes the bus or walks home?

Obviously this is not a problem in practical terms. Police officers do not sit in front of gun stores and arrest buyers.

- Jim

[stevie_d_64]

I'm just busting at the seams to see what Chuck Rosenthal says about this...

Its either going to go away, or the risk of being arrested for UCW still exists in Harris County...

If it remains concealed for non-CHL's (and CHL's) while in a vehicle, one group being under no requirement to notify, and the other required by law, with penalties for not informing...

I see the question still being how do you answer (if you are a non-CHL) if the question is presented???

"Yes, officer, I have a firearm concealed in the console, or on my person, in this vehicle...Per HB1815 which was signed into law recently..."

Of course if the person avoids the question, or lies about the presense of a firearm, the results would probably be clear...

I still see plenty of wiggle room for big city and county DA's to busts chops on this...

I'm not trying to be a negative nancy on this at all...I'm just trying to see if the DA's are going to back off this, this time...

[stevie_d_64]

UCW makes no mention of the loaded condition of the weapon, or whether it is cased or not. That means a gun in unloaded condition or cased would still be chargeble under UCW, if it meets the other elements.

We've discussed this quite a while back, and you more or less convinced me of the opposite.

If someone who is not a CHL holder goes to a gun store and buys a pistol, how does he legally get from the counter to his vehicle? What if he takes the bus or walks home?

Obviously this is not a problem in practical terms. Police officers do not sit in front of gun stores and arrest buyers.

- Jim

I guess I'll stretch it and say that I believe the whole concept of charging someone of UCW is un-Constitutional...

If I am not engaged in criminal activity, how can the act of exercising your right to purchase a product, and transport such product be illegal at any point in the equation???

Some entities believe it is, regardless of your intent, or status (law-abiding citizen, or convicted criminal)...

All I know is that I have a CHL, and that hoop I jumped through makes me above the law, and my sister a criminal because she doesn't have that piece of plastic???

Maybe I'm making a mountain out of a molehill...

But as soon as some big DA tells us their take on this, I am keeping my guard up...

[frankie_the_yankee]

Cops will still ask the question for their own safety. Whatever response they get will at least serve as one more data point to judge whether they are dealing with a good guy or a (possibly armed) scumbag.

And from the cop's point of view, that is very important life-and-death information.

As long as the law is honored and administered fairly, I have no problems with it. It is a big improvement over what we had before.

Just remember, it doesn't take effect until 9/1/2007.

[OverEasy]

I read an article in the TSRA magazine a while back that said you don't have to tell a LEO anything other than your name. The article said don't answer any questions about having a weapon or where you are going or comming from. This was for non CHL holders. They even gave a sample statement to make. It was something like: On the advice of an attorney all the information you need is on my drivers license.
Also, a while back some guy in MT or WO got arrested for failing to give his name when asked by a LEO. In the end the court said you are required to give your name but nothing else.
So..., it looks to me that if you don't have a CHL you don't have to answer any questions about weapons in your car and you don't have to consent to a search.
Have I got this right?

[txinvestigator]

UCW makes no mention of the loaded condition of the weapon, or whether it is cased or not. That means a gun in unloaded condition or cased would still be chargeble under UCW, if it meets the other elements.

We've discussed this quite a while back, and you more or less convinced me of the opposite.

If someone who is not a CHL holder goes to a gun store and buys a pistol, how does he legally get from the counter to his vehicle? What if he takes the bus or walks home?

Obviously this is not a problem in practical terms. Police officers do not sit in front of gun stores and arrest buyers.

- Jim

I am not arguing that fact. It is clear that the person must be able to get the weapon from store car to home, etc.

My point is that if a person is in violation of 46.02, UCW, the loaded condition of the weapon matters not. And an unloaded gun would not effect a UCW charge. Its just not in the law.