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Kyle Brown wrote:In your discussions referenced above, was there mention of why #5 uses the words "not in plain view" in lieu of the word "concealed?"

Kyle, welcome to TexasCHLforum.

I don't have any information as to why the Senate used the phrase "not in plain view" rather than concealed. The requirement was added as an amendment, in think somewhat on the spur of the moment, because some Senators were concerned about people waiving a handgun around to scare others. There's already a couple of Penal Code provisions to cover this, but it was considered a minor provision in both the House and Senate and didn't get much attention. At least this is my take on the issue.

UPDATE: I should have added that the term "concealed" is not defined in the Penal Code. It is defined in Gov't Code Section 411.171(3) and applies to CHL's, but would not be applicable to "car carry" under HB823. "Not in plain view" is actually a weaker standard than the definition of "concealed" found in the Gov't Code.

Chas.

Regards,
Chas.

Let me throw this one point out regarding the pre-HB823 case law. If you do not meet one of the five elements of the presumption created by HB823, then the presumption is not available, but that doesn’t mean you couldn’t still be traveling. It means only that you won’t have the presumption to help you.

For example, if your pistol was laying on the dash or in the passenger seat (i.e. not concealed) then you wouldn’t meet element 5 and the presumption would not apply. However, if you could qualify as traveling under the old case law, then it would still be a defense. If you told the LEO you were going two blocks to a picnic, well . . . you’d have a problem, wouldn’t you.

This is pretty much an academic discussion however, since virtually no one qualified as traveling under the old case law anyway!

Be smart - get the CHL - it’s much cleaner.

Regards,
Chas.

I promised an update, so here it is. After lengthy discussions with people involved with HB823 on the practical and legal effect of HB823, it remains my opinion and the consensus of the group that it does provide the protection intended by its author. One of the other attorneys disagrees with my evaluation and does not agree with the group's consensus.

Unfortunately, the volume of inaccurate information flooding the Internet on this issue is still mounting. My concern is that it might actually have a negative effect on the effect of HB823, both by unnecessarily alarming the general public and perhaps even tainting some LEO's and ADA's opinions. It should also be noted that, contrary to at least one post on packing.org, TSRA has not taken the position that HB823 failed to meet its intended goal, or that it is a trap for the unweary.

The language of HB823, including the newly created Section 2.05(b) is written in "legalize," but I believe the effect and application are clear. So also does NRA general counsel.

Could a LEO and/or ADA make an honest, or not so honest, mistake? Sure, but that can be said about many provisions in the Penal Code.

Regards,
Chas.

In fairness to everyone, I want to let you folks know that I am having discussions with a number of people concerning the scope of HB823 and it's practical application. At this point, I still am comfortable with the analysis set forth in my earlier posts, but there are people, including at least one attorney, who feel there are other ways to attack the presumption created by HB823. I have a very real concern that misinformation is going to become "conventional wisdom" merely because it gets a lot of press.

I'll post an update when I get more information.

Regards,
Chas.

txinvestigator wrote: . . . If the police can arrest a person who is traveling after Sept. 1, even though 46.02 does not apply to a person who is traveling, then can't they also arrest a CHL holder who is carrying, a person firing a handgun at a range, a commissioned security officer, etc? Just let the courts decide?

The short answer is yes, the arrest can be made. This would be the case even if the "Not Applicable" language in 46.15 is changed to a proper "Exception." (However, see below.)

txinvestigator wrote:I realize it is goofy to even be concerned about a person getting arrested under those conditions, but why are we all so worried about the traveling non-applicability?

That's exactly my position on these types of issues. Can the arrest be made? Yes. Is it at all likely? Not in my opinion. LEO's don't want to waste their time making arrests when the ADA isn't going to accept the charges.

Sure, there can be a rogue COP that will do it simply to harass someone who they fell deserves it, but thankfully those folks are relatively few in number. Plus, knowingly making such an arrest without any probable cause could well be either an ultra vires act (an act outside the scope of their duty/employment) making them personally liable in a civil action, or a violation of the person's civil rights (Section 1983 action) making the officer and his/her department potentially liable in a civil action.

txinvestigator wrote:I would think that the mandate is clear: if the person meets the criteria, leave them alone.

I agree and I believe this is exactly how the vast majority of LEO's will handle this issue. LEO's are in the same boat as attorneys when it comes to the "one bad apple" effect. Most people don't have to deal with LEO's or attorneys very often, if at all. When they do, it's not because they decided to drop by and say hello to us; something has gone wrong, perhaps terribly wrong. So, the stress level is typically high and emotions are frayed. Let one of my colleagues or a LEO handle the matter in an inappropriate manner, real or perceived, and that perception may well be the one that person carries with them for a long, long time. But as you state, I think vast majority of LEO's will recognize the Legislature's mandate and will act accordingly.

txinvestigator wrote:My only reason to be concerned is the cop who does not even know the law. I have already experienced this, and was threatened with arrest by a Dallas cop for not displaying my CHL. (never mind he never asked for ID, or that I can't find where he can arrest me for a 1st violation of that anyway).

It seems that there is a deficiency in the training/updating of our LEO's. We really need to push the DPS and TSRA to notify PD's of the changes and finer points, and request that these agencies conduct briefing training, etc.

I believe you have correctly identified the problem. I am convinced that those of us who are interested enough in this issue to follow boards such as TexasCHLforum and others are far better versed on gun laws in general and CHL in particular, than are most LEO's. It makes sense that this would be true. LEO's have to deal with every aspect of the Penal Code and to some degree, the Code of Criminal Procedure. They are not attorneys, but folks expect them to be. Combine their broad responsibility with the fact that they have no idea what part of the PC they will be dealing with when the next call drops, and it's easy to understand the difficulty officers face. If someone comes to me with a problem outside of my area of practice, I can simply refer them to someone who knows that area of the law. An officer doesn't have the option to pass on a call because "domestic violence calls are outside of my area of expertise."

On the flip side of the coin, an officer's ignorance of the law is no more an excuse than it is for a citizen. People who are not violating the law should not be arrested and have to incur the related expense, embarrassment and inconvenience. The one weak area I've seen is the unwillingness of many LEO's to admit they may be in error on a particular area of the law and seek additional information from other officers or superiors, before making an arrest or writing a citation.

I fully agree that education on changes in the law is critical to foster good relationships between citizens and LEO's. The change from a Class B misdemeanor to a (non-arrest) potential CHL suspension, on the first offense for failing to show a CHL, is a relatively minor change that was probably missed by many LEO's and the folks who keep them apprized of changes in the law. However, the "handgun in the car without a CHL" is a huge change in the law and I expect all LEO's will be made aware of the new law.

txinvestigator, thanks for the thought-provoking post.

Regards,
Chas.

KBCraig wrote: A lot of people are running around saying that HB823 makes unlicensed carry in a car legal as of 9/1/05. Please do your best to disabuse them of that notion, and explain that they can still be arrested, tried, and convicted if they are not actually travelling.

Presumptions can be rebutted, unless the statute expressly states the presumption is unrebuttable. However, with HB823, the only way to disprove the presumption is to disprove the facts underlying the presumption. All you have to do is establish the elements of the presumption. When dealing with HB823, this means that 1) you're in a private motor vehicle; 2) not committing a crime (other than Class C traffic violations); 3) not prohibited from possessing a firearm; 4) not a member of a street gang; or 5) not carrying a handgun in plain view.

The presumption goes to the jury, if there are facts establishing elements 1) through 5). In order to rebut the presumption, the state must prove that one of the listed elements (the facts establishing the presumption) do not exist, and this must be proven "beyond a reasonable doubt." Only by disproving one of the 5 elements will defeat the presumption. It matters not if you have fresh groceries in the car, are on your regular route to and/or from work, or don't have any luggage. It wouldn't matter if you told the officer you were just driving three blocks from your house to a neighbor's home. Can you be arrested? Sure, but most LEO's are not going to waste their time and no responsible ADA is going to accept the charges, unless there is evidence you don't meet one or more of elements 2) through 5).

Note the statute's instructions on what is required to rebut the presumption:

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;
(B) 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;

Also, the Legislative history of this bill makes it abundantly clear that the intent was to allow people to carry guns in their cars without a CHL.

There is a ton if misinformation in the newsgroups on this issue, most of which is based upon erroneous attempts to apply pre-HB823 case law.

Was there a cleaner way to achieve this goal? You bet! However, I suspect the author of the bill felt it be less controversial to focus on "traveling" currently in the Penal Code, rather than make a more overt change that would draw more attention to the bill.

Regards,
Chas.

Ole-cus, you're right, he's not.

Chas.