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Hello:

I recently became a member of this great site, having visited in the past.

FYI: the Fort Worth DA is also going to arrest anyone with a handgun in their car and not having a CHL.

The Harris County said this about the new law:

Thank you for your concern and legal advice. However there
are things you need to know about what House Bill 823 says and what it does
not say.

September 1, 2005


Sorry to have to reply to all of you at once. I recognize that you all have individual questions or comments but, let me see if I can clarify my position on the handgun law and the change in the law that went into effect today.
Generally, the law says that it is a violation to carry a weapon, including “on or about one’s person” (that’s 46.02 Penal Code)*. On or about the person has been determined by appellate courts to mean within one’s reach without materially changing their position. For example, a gun being the trunk of most cars is not on or about the person.
There are situations when the general rule is not applicable (46.15 of the Penal Code). It is permissible to carry handguns in premises under one’s control, while engaged in hunting and fishing, has a concealed handgun license… a bunch of other activities or while the person is traveling. This has been the law for a long time and several appellate courts have interpreted certain sets of facts to be “traveling” but they’ve never given Texans a definition of traveling. However, the cases where a person is determined to be traveling can best be characterized as in taking a journey from one place to another. This makes sense because the original intent of the law seems to me to have been, for people to be able to protect themselves from highwaymen.
Now, the new law (House Bill 823) says that a person is presumed to be traveling when he is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying the weapon in plain view.
Next, the term presumption has a definite legal description (Section
2.05). Basically, when a fact is presumed, the presumption can be rebutted (or overcome) by evidence. A presumption with which you will all be familiar is the presumption of innocence in every criminal case. But, as I’m sure you understand, the presumption of innocence does not make the person innocent. What it does, is to make the prosecutor prove that someone is guilty. Okay?
Now, State Representative Terry Keel, good guy, long-term legislator and chairman of the House Criminal Justice Committee wrote and sponsored HB 823. Nowhere in the bill does it define the term “traveling”. Nowhere in the bill does it say that the term traveling means anything other than what it has always been. Nowhere in the bill or in the Penal Code or anywhere else I can find, does it define “private motor vehicle”.
Let me use an easy illustration. Let’s say an officer stops a car for running a stop sign and while issuing the ticket sees the butt of a handgun under the driver’s seat. If the driver (actually includes any occupant of the car) has a concealed handgun license, he is supposed to tell the officer that he has a gun and show the officer his license.
But, let’s say that the driver thought it was now okay to carry a gun so long as it stayed in the car.
Question one: if the car is rented from a rental agency or is a company car that the driver may use, it is a private vehicle?
Question two: if the driver is out riding around looking for a fight or is going to go kill someone, unless he tells the officer, how would the officer know that he is engaged in criminal activity?
Question three: while the officer can call to run a criminal history check, a misdemeanor assault case would not be a disqualifier unless it was a family violence case. Other things that will not show include, protective orders, temporary restraining orders, orders as a condition of bail or other judicially ordered prohibition of having a weapon. So how does an officer know these things?
Question four: again unless the driver tells the officer, or the officer just happens to know that the driver is gang banger. How is the officer going to know?
Question five: is partial exposure “in plain view”? Again, unless the driver tells him that he has a gun, and he’s not required to, how would the officer know about the gun in the first place?
Continuing with the illustration. If the officer asks the driver his destination and is told that he (the driver) is going down the street to buy ice cream then head back home to eat it, is the person “traveling” in the historical, judicial meaning of the term?
Question six: should the officer on the street be making a determination that has in the past left to fact finders (juries or judges) to determine?

Okay, maybe we can go back to the House Committee meetings for some elucidation. By law those hearings are tape or video recorded. This law came before the House Criminal Jurisprudence Committee on March 29, 2005 at 6:35 P.M.
Those hearings begin with discussions as to whether the driver crosses or intends to cross a county line. Significant because crossing county lines has been one the determinants appellate judges used in deciding traveling issues. But, to be fair, I’ve never seen a version of the bill that includes such language.
None of the witnesses or legislators ever discusses anything about the general right to have a handgun in your car. One witness, a biker, who goes by the moniker “Sputnik” does say, “I’ve carried a gun since I was nine, and if I expect trouble, I carry two.”

Okay, finally. It is not my job to make the law. It is not my job to interpret the law. I don’t arrest people for firearms violations. But, it is my job to enforce the law. I own over 20 firearms. I have a concealed handgun license. I am married to a federal officer. I have taught all of my children about guns and the safe handling of them; but until the legislature or courts clearly tell me otherwise, if someone has a handgun in their car and they do not fall under a clearly interpreted exception in the law, I will proceed with prosecution.
The reason I contacted the media was to let the citizens know that if they rely on what they think HB 823 means, they may be arrested. One more presumption. All persons are presumed to know the law whether they do or not.
*Texas statutes can be found at www.capitol.state.tx.us/statutes

Chuck Rosenthal
Harris County District Attorney


My Comments: The DA's are going to force someone who is convicted under the new law to appeal the adverse decision until the TX Supreme Court defines what "traveling" means under the new law - meaning a convicted offender with enough money to appeal.

It is interesting that the old definitions of traveling were not included in the new law. IMHO, these old definitions were not included so that TX citizens could be more certain what the law actually is about carrying a handgun in their car. Old TX court decisions said traveling meant: 1) crossing county line(s) or, 2) staying overnight or, 3) crossing county Line(s) and staying overnight - Confusing at best. So, the DPS or DA saying what they think travleing means is not supported by the plain language of the new law because one is presumed to be traveling if they meet all elements of the law.

IMHO, the House meant traveling is presumed if all the elements of the new law are met because of the many large counties in TX and/or densely populated counties - both requiring a considrable amount of time to travel through.

However, if someone is stopped by a LEO, the LEO asks where they were going (common question), they answer going to the store/work/bank/etc., then the presumption they are traveling could be challenged - probably successfully; unless the destination is far away or in another county.

Tom
 
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