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"By Austin Kinghorn
Baytown Sun

Published February 5, 2006

When Harris County’s top attorney snubbed a new state law meant to allow Texans to legally travel with handguns for protection five months ago, questions were raised as to what practical effect the new law would have.

And while the law was meant to allow law-abiding citizens to carry handguns in their vehicles, local law enforcement agencies haven’t say they haven’t changed their enforcement of unlawful carrying of a concealed weapon.

Hailed by pro-gun groups as hallmark legislation for the 79th legislative session, HB 823 earned State Rep. Terry Keel, R-Austin, himself a former county prosecutor and sheriff, a legislator of the year award from the Texas State Rifle Association for his work in passing the bill.

But the day before the bill took effect on Sept. 1 of last year, Harris County District Attorney Chuck Rosenthal said he would continue to prosecute unlawful possession of a weapon cases the same as always.

“It is still going to be against the law for (unlicensed) persons to carry handguns in autos,� Rosenthal said in August.

Texas law has historically allowed a citizen to have a firearm in their vehicle while traveling, but the definition of traveling has been in debate for literally centuries.

“The way those cases got decided was on a very complex set of court precedents dating back to 1895,� said Jim Dark, executive director of the TSRA.

The bill attempted to clarify the long debated definition of traveling by stopping shot of defining it but assuming someone is doing it if they are in a private vehicle, not prohibited by law from owning a firearm and not a member of a street or engaged in criminal activity, which does not include misdemeanors such as speeding.

Keel made the intent of his bill clear in a entry to the House’s journal after its overwhelming passage.

“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,� Keel wrote. “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.�

But Baytown police spokesman Marvin Currie said neither has the department’s philosophy changed.

“Since [the district attorney’s] office is the one that processes the charges we have to follow his guidelines as to what he wants to accept as charges,� Currie said.

Still, a search of the department’s records for UCW arrests uncovered almost no cases which would have met the standards of HB 823, with most of the department’s arrests accompanying other charges such as driving while intoxicated or in possession of a controlled substance — both illegal activities that exempt travelers from the language of the new law.

Only two times since the new law took effect did Baytown police arrest a suspect on UCW charges alone. On Nov. 30, a man was arrested for having a handgun stuffed in his pants after police pulled him over for speeding and not wearing a seat belt.

On Dec. 11 a man was arrested after he admitted to having a .45 in his glove box after he was pulled over because his license plate light was out. He was not otherwise breaking the law.

Before the law went into effect on Sept. 1, Baytown police arrested five people for unlawfully carrying a handgun independent of additional felony charges. While some weren’t breaking the law, reports identified “suspicious behavior,� such as two men who slumped in their seats when a patrol unit’s spotlight was shined on their vehicle while parked at a house.

When police found a gun and the vehicles occupants couldn’t tell them whose house they were sitting outside of, the pair was hauled to jail on the only offense police had on them — carrying a gun.

Mont Belvieu police chief Jerry Whitman, whose department made only two unlawful carrying of a handgun arrests last year — only one of which was after the law took effect — explained that his department uses UCW as a “handle law� that is applied with discretion to get suspicious persons off the streets.

“If a citizen is traveling and carrying a weapon in his or her vehicle for protection without a license to carry that weapon, and is not an apparent threat to others, he may not be charged with UCW,� Whitman said. “On the other hand, if this same citizen is in a place that lends suspicion that he may be involved in illegal actions, he could be charged with UCW.�

Whitman used the example of a person found sitting in a vehicle behind a convenience store with a history of being robbed.

“His arrest would perpetuate fingerprinting and photographing him and those actions could link the subject to other crimes,� Whitman said.

Chambers County Sheriff Joe LaRive shares a similar philosophy, saying deputies are given discretion in applying UCW charges.

“We’re not looking to lock up everybody that has a handgun in their car,� LaRive said.

Indeed, the department only made five UCW gun arrests last year, with only one falling after Sept. 1. In that case, an occupant of one vehicle shot at another vehicle, hardly an action considered protected by the new language of HB 823.

When asked how a citizen could be sure he or she was traveling legally in light of the varied enforcement of HB 823, LaRive said a concealed handgun permit was the only assured justification.

Both LaRive and Whitman openly said HB 823 offered more confusion than help to the current law, even if that is not what its author intended.

But Damian Duarte, a spokesman for Keel, said the intent was simple.

“I think our perspective would be if the person is stopped and those conditions are met the officer shouldn’t need to go any further,� he said. “It shouldn’t be an issue.�

But while UCW arrests may not be a big target by local law enforcement agencies, citizens can be assured that, as has been historically the case in Texas, how the law will treat them depends largely on what officer happens to pull you over.

TSRA’s Dark said that while he is sensitive to law enforcement’s need for tools to get potential criminals off the streets, distinguishing between the two was the problem HB 823 was supposed to fix.

“The overwhelming majority of officers are very conscientious about their jobs and most are very reasonable in their discretion,� Dark said. “But there are cases out there where officers interpret that particular law to mean if you have a gun in your car you go to jail and you can tell it to the judge.� "