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Charles,

As usual, it's the minor disagreements that lend themselves best to extended debate.

My point about what the law doesn't say is that the legislature went out of it's way to say something that could have been said very simply if everything we're hearing about the law is correct.

If they had wanted to define traveling they could have easily done that. If they had wanted to create a new way to legally carry concealed, they could have easily done that.

But they didn't say "if X then the person is travelling". They said "if X then the person is PRESUMED to be travelling."

They didn't say "if X then the person can legally carry concealed". They tacked on a "presumption of travelling" to the existing travelling defense.

And in the section of law I quoted, they didn't stop with "the existence of the presumed fact must be submitted to the jury", they continued with an "unless" (unless = exception) which clearly provides a situation where the court can take a different action if "the evidence as a whole precludes the presumption".

I think it will be interesting to watch the first test case, and I think that it will be anything but open and shut.

I also think that if only because the test case is going to put someone through the wringer, we should continue to advise people NOT to carry in their vehicles without a CHL.

Unless we can get a rich volunteer with lots of spare time to speed in Harris or Tarrant counties while carrying a handgun...

He absolutely did not!

Begging your pardon, I can't see how you can read it any other way.

Here's most of the last paragraph.

"...Non-CHL holders electing to travel with a handgun in the vehicle need to be careful. If stopped, furnish...ID...insurance card, and DO NOT FURNISH ANY OTHER INFORMATION. DO NOT CONSENT TO A SEARCH OF YOUR VEHICLE WITHOUT A WARRANT. If asked where you are going or where you have been, you should politely respond "Officer, my attorney has advised that the information you need is all on that driver's license." 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."

Emphasis is the author's.

He 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.

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

I think that's what I said. These DAs clearly believe that they can arrest and prosecute if there is evidence that the travelling presumption is contradicted. Which means that the current state of affairs (EVEN IF ONLY IN CERTAIN COUNTIES--including Tarrant and Harris to name two) has not changed significantly from before the law was passed.

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

Nor did I. I said that you could be arrested and prosecuted. Which is exactly what Mr. Ross said. (However, I do believe that you CAN be convicted--because of "unless" and because of what the law doesn't say.)

...but some innocent person is going to have to run the gauntlet for that to happen.

Which seems reason enough to advise against carrying without a CHL at this point.

Your quote of the NRA position leaves out one very critical part NRA's position on the bill...

I use ellipses when I leave out parts of a quote. It's quoted as it was printed in the Sportsman.

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

The law still says you must be travelling to carry a handgun without a CHL. So the only thing that's changed is the PRESUMPTION of travelling if the "five elements" are satisfied. But that doesn't preclude prosecution (and possibly conviction) if it can be shown beyond a reasonable doubt that you're NOT travelling. Also, while the "five elements" give rise to the presumption, Mr. Keel clearly does not believe that they are the "five elements OF TRAVELING" since he states in no uncertain terms that the new law does not define or redefine travelling.

The clear and unequivocal language proves you are incorrect.

Well, here's how it looks to me. Before the law, a law-abiding citizen with a concealed handgun in a car would have no problems. After the law, a law-abiding citizen with a concealed handgun in a car would have no problems. However, in either case if you give a police officer information about your handgun or destination you could be arrested and taken to court. So their statement, as nearly as I can tell, particularly when combined with Mr. Ross' comments, indicates that things have not changed significantly.

Here is the problematic section of the law:

"(1) if there is sufficient evidence of the facts that give rise to the presumption, 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 clearly precludes a finding beyond a reasonable doubt of the presumed fact..."

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. However, there is an "unless" in that statement. If it is true that the court can't consider anything the jury can't, then everything else in the above quote following and including the unless is not just superfluous, it's just plain meaningless.

I don't believe that is true. The "unless" defines an exception to the court's requirement to submit to the jury "the issue of the existence of the presumed fact". And that exception means that there is still room to be convicted if "the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact".

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 travelling." It could have said that but it doesn't. Why? Because the intent was to leave "travelling" 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.

So travelling is still not defined, and there is not a new way to legally carry without a license.

The only thing the law clearly does is move the burden of proof of travelling from the defendant to the state. All of the other things being claimed about this law are things that the legislature, by all appearances and statements, intentionally avoided doing.

The March April 2006 Sportsman has an article on page 9 entitled:

"Message from the TSRA General Counsel, Important Notice to All TSRA Members WITHOUT a Valid CHL".

The quote I made earlier in the thread with a transcription of a policy statement from the Tarrant County DA was from that article.

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 travelling and resulting in arrest and prosecution. 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."

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

I can't find the article, but I did find a quote from the article that I posted some time ago on another forum.

"HB 823 Bill Analysis Provided by the staff at NRA-ILA
Texas H.B. 823 prevents the police from routinely arresting a law-abiding person who is transporting a concealed pistol in his motor vehicle. This is accomplished by clothing a law-abiding person with the presumption of being a traveler. The traveler presumption may be rebutted by the state by presenting proof beyond a reasonable doubt. In plain terms, a law-abiding person should have no problem transporting his pistol in a motor vehicle provided the pistol is concealed. "

My emphasis added. In plain terms, their final one sentence summary indicates no particular benefit over the situation extant before the law was passed. If you keep your pistol concealed, a law-abiding person would have no problem either before or after the passage of HB823. That amounts to damning the bill with faint praise in my opinion.

Here is a quote from the Hon. Terry Keel, one of the legislators who authored and passed the law.

"The legislature has likewise never defined “traveling� because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.
...
In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances."

Given that traveling has NOT been defined or redefined, it seems clear that there is no change in the legality of carrying a handgun in the car without a CHL. Therefore, if it was illegal for you to carry a handgun in your car when driving a block to the grocery store before the law passed, it is still illegal.

Mr. Keel's comments make it clear that this law changes nothing in terms of what is legal or illegal. It only transfers the burden of proof from the citizen to the state. NOTHING more. The ONLY difference now is that if you are caught with a handgun in the car, the officer will PRESUME you are travelling UNLESS you (or the circumstances of the situation) make it abundantly clear that you are not.

Here is the entire text of Terry Keel's comments.

"TO:Media

FROM:Terry Keel, State Representative, Austin

RE:HB 823 by Keel, Effective 9/1/05

Clarifies Right to Carry Handgun in Vehicle While Traveling

DATE:August 30, 2005

PRESS RELEASE

It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of “traveling�. The legislature has likewise never defined “traveling� because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.

HB 823 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.

HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang.

In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. 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. Under those circumstances the citizen should be allowed to proceed on their way.

HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. 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. By enacting this evidentiary standard in conjunction with the presumption, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler.

It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason for a 1997 legislative change which replaced the “defense� of traveling with a classification of the statute of UCW as instead entirely “inapplicable� to a traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term “traveling� was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun while traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling.

In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be “crossing county lines� may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. The new statute instead focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers.

There are several additional important points that should be made in regard to the enactment of HB 823 and its interface with current law.

HB 823 does not give “everyone the right to carry a gun in a car�. State and federal laws applicable to firearms must be noted in conjunction with the new statute’s terms, particularly the limitation of the presumption to persons who are “not otherwise prohibited by law from possessing a firearm.� For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions.

Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction.

The presumption also does not apply where the gun is openly displayed.

The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling----a right to which they are already entitled.

For further information, contact State Representative Terry Keel, 512-463-0652."

Again, my emphasis added. It's VERY important to note that this is ALL oriented toward "travelers" and yet does not redefine or define travelling. The bottom line is that if you're not travelling, you can STILL be prosecuted for having a handgun in the car without a CHL.

The ONLY thing different is that now the STATE has to prove you're NOT travelling. Before the passage of the law YOU had to prove that you WERE travelling.

Charles,

I see nothing in the law nor in the quote you provided that requires an officer to ignore evidence contrary to the presumption.

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"

If the officer happens upon (or is provided with) evidence that clearly precludes the presumption of travelling then arrest and prosecution are likely to follow. And since that evidence would eliminate the travelling defense, there is no way the officer could be said to be arresting someone who has a defense for their actions.

While this law makes it less likely (maybe even MUCH less likely) that a person will be arrested for a handgun in the vehicle, it does not, by any means, prevent that occurrence. And it does not prevent or penalize an officer from acting on any evidence which he feels clearly contradicts the presumption.

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.

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

txinvestigator,

There is nothing in the law that prevents an officer from arresting someone if there is something that contradicts the presumption of travelling.

If you're already at your destination and it's two blocks from home, that's not travelling by any definition. If you tell the officer something that makes it clear you're not travelling, same deal.

Going to a school to pick someone up is also not travelling.

The law does NOT change the legality of carry without a CHL. It does NOT define travelling, it does not make anything legal that wasn't already legal. It simply says that the officer is to presume you are travelling if you meet the provisions of the law.

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

I wonder what legal standing questioning a person in a traffic stop has?

Well, if they're examining your car in the school parking lot, it' s a cinch you're not traveling since traveling has been considered to be pretty much a point-to-point thing in past court cases. Stops unrelated to the trip (at a school, for example vs a gas station) don't usually qualify even if you're in the middle of a trip.

"Where are you going?" is a very common question during a traffic stop. I can't remember specifically enough to say that I've been asked this on EVERY stop, but I've definitely answered this question on more than one traffic stop.

You don't have to answer any questions on a traffic stop, but if you choose to do so, you should be aware that what you say can and... (do I really need to finish this statement?) :D

Not for firearms carried in, and left in, the car.

Without a CHL, and unless one is travelling, etc. it's still illegal to have a handgun in the vehicle where it can be easily accessed by the driver or passenger.

The new law doesn't change what's legal and what's not legal, it only makes it less likely that someone will be arrested for being in possession of a handgun in the absence of other criminal behavior.

And even that's in question in some places. At least two DAs have made it clear that they will continue to encourage officers to arrest folks for having handguns in the car regardless of the new law.

Here's a quote from the Tarrant County DA office dated 15 February 2006:

A trip to the grocery store with plans to return home does not constitute traveling. A drive around the neighborhood to see if any friends are hanging out on the street corners does not constitute traveling. A drive to work does not constitute traveling. Statistically, only a very small percentage of drivers on the street at any time are engaged in traveling. What the new law does is presume that they are traveling, nonetheless.

We will file UCW, Unlawful Possession of a Firearm by a Felon, and other gun cases provided the report provides some affirmative evidence that can be used at trial to rebut the traveling defense. In routine traffic stops, officers should early ask where the driver is going. Any other relevant information that can be developed should be noted in the report.

The new law may make it less likely that one will be arrested, but it certainly doesn't make it impossible for them to be arrested and prosecuted.

Good catch and good point.

Boma does not yet have a CHL at this time, per another active thread on this forum.

Boma also didn't qualify the type of firearm he wishes to carry which becomes pertinent given his lack of a CHL.