TexasCHLforum.com

KBCraig wrote:Radically simple solutions involve removing words, not adding them.

Kevin

Chas.

I smell a radically simple solution coming in 2007.

Chas.

John:

I think our only disagreement lies with whether a conviction can be obtained, not whether an arrest can/will be made. We agree that an arrest for UCW can still be made, and in some Counties, they will be made. We disagree on whether the law has changed with regard to obtaining a conviction.

JohnKSa wrote: He [Albert Ross] CLEARLY advises that one not answer the officer's question regarding your destination and then states that the consequences (ticket) of not answering are better than being arrested and prosecuted. I can't see how that means anything but that he feels that answering the question improperly could contradict the presumption of travelling and result in being arrested and prosecuted.

Perhaps I misunderstand the meaning of your statement "contradict the presumption of traveling." I take your statement to mean the same as “rebutting the presumption� which would mean the person was not traveling. I believe the remainder of your post proves my understanding of your statement to be correct. If so, then you are reading a meaning into Albert’s statement that is not there. Again, I was involved in the TSRA announcement and recommendation and it is not our position that the presumption can be rebutted by evidence on any issue other than the five elements of the traveling presumption. The TSRA warning and recommendation was issued solely to help people avoid being arrested in Counties that want to ignore HB823/TPC 2.05(b).

JohnKSa wrote:It appears that you are saying that if a person satisfies the 5 conditions that no other evidence regarding the situation will or can be considered by the jury.

Correct, that is the law.

TPC 2.05(b)(2) expressly states as follows:

(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;

(C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and

(D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.

The above-quoted excerpt from the Penal Code makes it clear that 1) the jury must find the defendant was traveling, unless 2) the State proves beyond a reasonable doubt that the facts giving rise to the presumption (i.e. the 5 elements of the traveling presumption) do not exist. No party to a trial, state or defendant, can present any evidence to the jury that is not relevent to an issue the jury must determine. Since the jury is required to focus only on the 5 elements of the presumption, that means no other evidence can be presented by the State, on the traveling issue.

JohnKSa wrote:What makes it clear to me is that it's all about what the law doesn't say.

The law doesn't say:

"If these five requirements are met, the person is traveling." It could have said that but it doesn't. Why? Because the intent was to leave "traveling" undefined--that has been stated plainly by at least one legislator who also states plainly that they met that goal.

The law doesn't say:

"If these five requirements are met, the person can legally carry a handgun concealed." Why not? Because the intent was not to create a new way to legally carry without a CHL.

Perhaps this is a point of confusion. TPC 2.05(b) is a new trial procedure that applies to all statutory presumptions, not just the "traveling presumption" set out in TPC 46.15(i). It couldn’t have been written to refer to traveling because it applies to much more than just TPC Ch. 46 dealing with weapons.

We have to remember that there are two Sections of the Penal Code relevant to the traveling issue. First is TPC §46.15(i) that sets out the elements of the presumption. It reads:

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person 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 a handgun in plain view.

We then have to look to TPC §2.05(b) to see how these elements must be handled in trial. §2.05(b) could not have been worded as you suggest because it applies to every statutory presumption in the Penal Code, not just the “traveling presumption.�


Another point to note is that TPC §2.05(b) is an entirely new procedure dealing with statutorily defined presumptions and did not exist prior to the passage of HB823. The “old� way of handling presumptions is set out in TPC §2.05(a), but it no longer applies to statutory presumptions.

HB823 was a dramatic change in Texas weapons laws and only the intellectual dishonesty of certain DA’s is thwarting the clear, officially recorded Legislative intent of the bill. It is such conduct that prompted the publication of the TSRA warning and recommendations.

Regards,
Chas.

John:
You are ignoring the plain and clear language of HB823. You are also ignoring the context in which the statements you have quoted were given.

JohnKSa wrote: Mr. Ross (TSRA General Counsel) clearly indicates that the citizen may inadvertently provide the officer with evidence (specifically in response to the "Where are you going today?" question) contradicting the presumption of traveling and resulting in arrest and prosecution.

He absolutely did not! The only way to rebut the presumption is by giving information or evidence that disproves one of the five required elements of the presumption. Mr. Ross was advising people to keep their mouths shut to avoid being arrested by LEO's operating in counties where the DA's are telling them to make the arrests in spite of the new law - counties such as Harris County.

JohnKSa wrote: Therefore he advises that one not answer such questions and that one not consent to a search without a warrant. His final comment is:

"You may receive some kind of traffic citation, but that is better than being placed under arrest, having your handgun confiscated, your car towed and having to make bond and court appearances after being charged under P.C. 46.02 for being in possession of an unlawful concealed weapon."

Again, Albert's goal was avoiding the arrest. He did not say you would be convicted.

JohnKSa wrote:The earlier analysis from NRA -ILA was in an article in the issue that came out immediately after the law passed, IIRC.

I sit on two NRA committees with the NRA General Counsel and I talk to him several times a year. I've also read and discussed with him his evaluation of HB823 written during the 2005 Texas Legislative Session. He does not believe HB823 allows the judge to consider evidence on anything other than the 5 elements of the traveling presumption. Your quote of the NRA position leaves out one very critical part NRA's position on the bill - i.e. the express language in the statute which includes this operative phrase the facts giving rise to the presumption. Adding this phrase gives an entirely new meaning to the portion you quoted. Here is the full subsection of TPC 2.05(b)(2)(A):

A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption , do not exist; [these are the 5 elements of the traveling presumption]

JohnKSa wrote:In plain terms, their final one sentence summary indicates no particular benefit over the situation extant before the law was passed.

I respectfully disagree. The clear and unequivocal language proves you are incorrect. I recognize there are many people who believe this, but to do so, one must ignore the fact that a judge cannot consider evidence the jury will be unable to hear. I admit that this is a rule of law that non-attorneys cannot be expected to know, any more than I know how to do open heart surgery. But why ignore this critical element in the analysis once it is explained? Please don't take this as being directed at you personally. I have been more than a little frustrated over this issue since HB823 was being debated. Good, pro-gun people are unwittingly working to undermine the clear language of HB823 by fostering and promoting a clearly invalid interpretation of how this entirely new presumption must be handled by a judge.

JohnKSa wrote:Mr. Keel's comments make it clear that this law changes nothing in terms of what is legal or illegal.

I spoke with Chairman Keel at the TSRA Annual Meeting and the Awards Banquet and this is not his opinion!

Again, my frustration on this issue is not directed at you John. I have discussed, debated, and written on HB823 over a hundred times since the bill was first given to me to review prior to filing. Honest DA’s and ADA’s readily admit that HB823 can only be rebutted by disproving one of the five elements of the traveling presumption. Unfortunately, the Harris County DA’s position carries great prestige and Mr. Rosenthal’s blatant disregard of the clear language of the bill (now statute) has had a chilling effect on DA’s in smaller counties. He will be proven wrong, but some innocent person is going to have to run the gauntlet for that to happen. If any good will come from this, it is that the Legislature is likely to take a very dim view of Rosenthal and his ilk ignoring Legislative intent and will take corrective action in 2007. (Guess who has already written a bill to do just that. )

Regards,
Chas.

Flatland2D wrote:What about having a rifle in the trunk in the school parking lot? Is there anything (other than possibly school code) that could prevent rifle car carry?

That's fine too. (Our prior discussion about the school policy would apply to a long gun as well as a handgun.)

Chas.

JohnKSa wrote: Here's the critical section from your cite:

"unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact"

I've covered this in detail in another post, so I won't do it here. A shorthand version is this: a judge can take the case away from a jury, i.e. refuse to submit the presumption to a jury, only if reasonable minds could not differ in the result. In doing this, the judge can only consider the same evidence that can be presented to a jury. Since the jury can consider only evidence on the five elements of the traveling presumption, this is all the judge can consider. Fresh groceries, trip length, is the car moving, etc. is not evidence the jury can hear, so the judge can’t consider it either.

JohnKSa wrote: This has been publicly stated by some TX DAs and is the consensus of both NRA and TSRA legal counsel as quoted in the TSRA Sportsman.

I'm not sure exactly what you are talking about here. As an attorney and member of the NRA Legal Affairs Committee and as Vice-Chairman of the TSRA Legislative Committee, I can state that neither the NRA nor the TSRA have taken the position that evidence on issues other than the five elements of the traveling presumption can be considered by the judge in deciding whether the presumption goes to the jury. The advice given by TSRA on how to respond to a traffic stop is in response to erroneous interpretation of the new statute by Rosenthal and other DA's. It is an attempt to help members keep from becoming a test case; it is not based upon the belief that Rosenthal's view of HB823 is correct.

Edited to add: If you are referring to whether an arrest can still be made, I agree that a LEO can still make the arrest, as we are dealing with a presumption. This is also NRA's and TSRA's position on an arrest.

JohnKSa wrote: With all due respect, I'm gonna go with the lawyers on this one and would advise others to do the same.

No offense taken and I mean none either.

Regards,
Chas.

JohnKSa wrote: The law doesn't say that an officer must ignore evidence that contradicts that presumption.

The new statutory procedure for applying this new traveling presumption effectively says just that. True, it doesn't preclude an officer making an arrest, but as mentioned in another thread, the U.S. 6th Cir. Court of Appeals has held that an officer can be sued for arresting someone who appeared to have a defense to the charge for which he was arrested. There is no 5th Cir. case on this issue, but I hope there is soon.

Chas.

Here is TPC 2.05(b) [The new statutory presumption procedure]

(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:

(1) if there is sufficient evidence of the facts that give rise to the presumption [the five elements of traveling], the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole [judge can only consider the same evidence the jury can consider] clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(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 [the five elements of traveling], 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;

(C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and

(D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.

Flatland2D wrote:On a somewhat related note, what is the most common method of vehicle storage?

I honestly don't know what is most common, but I suspect either in a glove compartment or console, locked or unlocked. A number of members have bought a handy lock box and I'm thinking of getting, not because of legal issues, but to protect the gun. So far as Texas' "safe storage" law is concerned, I take the round out of the barrel and remove the mag. That way the gun is not "loaded" plus I obviously lock the car as well.

Flatland2D wrote:Say for some reason the campus police found my gun in my car. Regardless of the bogus arrest and following lawsuit, would I have any legal grounds to get myself back into the school if I was suspended and this type of thing was in their school codes? Would the school code be found unconstitutional since this is a public university? This is UTSA, if that matters. I'm not worried about getting arrested (being that it would be wrong for them to do so) but I really need to finish my education.

I don't know of any cases on point, but there should be cases dealing with expelling students for violations of a school's code. However, a "no guns" policy is factually different from a “no alcohol� policy and similar policies, as it deals with an area of law already heavily regulated by the State Government.

I do not believe a "no guns" in the car argument should prevail for a number of reasons. First, the Texas Legislature has already dealt with the issue of where guns can and cannot be carried on school property. (No guns on the "premises," with "premises" defined to include builds and portions of buildings.) Secondly, the Legislature has expressly precluded state agencies and governmental entities from excluding CHL holders from governmental property, with certain very limited exceptions. (SB 501 and TPC 30.06) Based upon these two areas of regulation exercised by the Texas Legislature, an argument can be made that the Legislature's regulation of this area of the law is complete; i.e. precluding codes and policies to the contrary. An argument could also be made that the university does not have the authority to forbid you from doing that which the Texas Legislature expressly authorized you to do (if you have a CHL).

These are somewhat esoteric legal arguments that can be made, but as I say so often, no attorney gets to make those arguments for you until and unless you get expelled and are suing to get back in. Yes, here come those two nasty words that everyone is sick of hearing - “test case!� I love to make good, intellectual legal arguments and prevail. But my clients don’t enjoy it nearly as much.

As many on this forum have noted, “concealed� means out of sight, so the issue shouldn’t arise. Of course, I’m not giving legal advice on the Internet, or encouraging you to violate any school code or policy.

Chas.

Flatland2D:
You can leave your gun in your car in a school (including university) parking lot and I don't care what the campus cops think. I would make sure the car was locked. If a campus cop makes an arrest that is so clearly bogus he and his "department" could well be looking at a §1983 law suit. It's one thing to argue over admittedly vague and ambiguous statutes, but this is clear. (As you noted, don’t do it if there is a school sponsored activity going on, such as a car wash in the parking lot.)

Chas.