Carry in vehicle?

[Charles L. Cotton]

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.

[Lindy]

When an attorney uses language like Charles did in the post just before this one, I know that I'm swimming in legal waters which are way over my head - so I'm glad I've got a CHL. I'll be curious to see how this one comes out. :D

[Charles L. Cotton]

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.

[Greybeard]

As stated on another thread, I'm REAL anxious to get back to Austin for instructor renewal skul and hear DPS' posture on all of this. Unfortunately, that won't be until Sept. 14, the quickest I could get in - and there will be gobs of other instructors who won't be getting renewal class completions until as late as December ...

But ... there is the once-a-year-only class for new instructors that's typically done the first week of August ... ' Might just have to see what I've got going on that week and see if I can get permission to sit (or stand!) in on a day or two of that ....

[Braden]

I'm no lawyer, but I tend to agree with Charles' analysis of the new law. To me, it seems pretty clear that as long as you meet the criteria listed in HB823 then you can legally carry a handgun in your vehicle without a CHL...whether you're running to the grocery store or traveling across the state. Maybe it's not as black and white as it seems to me, but I don't see just a whole lot of room in there for misinterpretation. Seems pretty cut and dry.

Of course...that's just my humble opinion.

[Charles L. Cotton]

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.

[Kyle Brown]

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.

Charles, first let me take this opportunity to thank you for providing us with this forum. It is fantastic.

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

[Charles L. Cotton]

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.

[SFC Stu]

Why not just delete the traveling portion of the law and say that if you are a law abiding citizen, who legally owns the firearm, yada, yada, you can carry it concealed in the vehicle? To simple? Thats what we did in Missouri, 2 years ago! The only problem is, 2 yeas later, some LEO's, don't know the law! Good luck Texans, on this one. SFC Stu

[dolanp]

Yeah that's the problem. It's very easy to lose rights in the heat of emotion over some incident, but it's very very difficult to get them back because then you are fighting against 'the norm' and generally have to prove you have a need to get your rights back.

[EricS76]

Why not just delete the traveling portion of the law and say that if you are a law abiding citizen, who legally owns the firearm, yada, yada, you can carry it concealed in the vehicle? To simple? Thats what we did in Missouri, 2 years ago! The only problem is, 2 yeas later, some LEO's, don't know the law! Good luck Texans, on this one. SFC Stu

Because many people believe the purpose and intent of the law is for people to be able to carry when traveling, and not be carrying when not traveling. If they had wanted people to carry all the time in their vehicle, they would have removed the traveling portion. I myself am starting to see Charles's point, but I do not want to be the first guinnea pig to test it.