UPDATE-- RE: HB1815-fixing traveling

[Liberty]

What I find itneresting is that the there is still a traveling provision. While things like getting out of a car and carrying into the premises to pay for a gas or getting a meal at a MacDonalds isn't clarified. We haven't lost any ground here either.

This is a pretty big step, but I think the traveling provision in Section 46.15 still needs to be defined at some point.

Does it cover those stopping and paying for gas in the premises?
Does it cover going into MacDonalds for lunch?
Does Travelling Constitute my commute?

[KBCraig]

This is a pretty big step, but I think the traveling provision in Section 46.15 still needs to be defined at some point.

I'd like to clarify it by eliminating PC 46 in its entirety.

[Charles L. Cotton]

Penal statutes must be crafted such that they establish prohibited conduct, they don't establish what a person can do. Exempting certain conduct or actions from otherwise prohibited conduct are where defenses and exceptions come into play.

HB1815 narrows the scope of unlawful carrying of a weapon (UCW) such that having a handgun in your car is not a violation of the penal code. That is clear. It is a violation to carry a handgun in your car if you are engaged in criminal activity, are prohibited from possessing firearms, if you are a member of a criminal street gang, or if the gun is in plain view, but this is the subject of proposed 46.02(A-1). 46.02 remains clear - having a handgun in your car is no more unlawful than shaking hands with your neighbor.

Remember, the goal of HB1815 is to allow people to have a handgun in their cars, not to allow people to walk around with them without a CHL. The goal also is not to allow anyone and everyone to bring a handgun into your car, without a CHL. If the Bill was broad enough to cover these actions as well, then it would not pass. This is a big step toward unlicensed carry, but it is just that - a step. I don't see repeal of 46.02 anytime soon. Only a few short years ago, car-carry without a CHL was a distant dream, but now it may be a reality. At one time I thought repeal of 46.02 was not possible, now I believe it is only “highly unlikely.�

Chas.

[Charles L. Cotton]

What I find itneresting is that the there is still a traveling provision.

The "traveling" defense was left in the statute for people who travel by means other than a motor vehicle. This could be any method of travel such as walking, horseback, canoe, or bicycle.

While things like getting out of a car and carrying into the premises to pay for a gas or getting a meal at a MacDonalds isn't clarified. We haven't lost any ground here either.

I agree, but although the bill addresses being directly en route to your vehicle, I believe it is implicit that you have to be walking from some location where it is legal for you to have a handgun to your car. An example would be walking from your business to your car, or from a shooting range to your car, etc. I would not recommend trying to get out of your car to pay for gas or buy something in the local stop-n-rob and rely upon HB1815. The Bill Analysis and the testimony by it's author makes it clear that legislative intent is to allow people to have a handgun in their car - nothing more.

This is a pretty big step, but I think the traveling provision in Section 46.15 still needs to be defined at some point.

I agree, but it's not going to happen. The legislature doesn't want to touch it. The opinions are as diverse as the court cases.

Does it cover those stopping and paying for gas in the premises?
Does it cover going into MacDonalds for lunch?

No, as discussed above.

Does Travelling Constitute my commute?

If you commute by car, then the "traveling" defense is irrelevant; you can have a gun in your car. If you commute by bicycle, or some other non-motor vehicle mode of travel, then you'll have to look to the case law for your appellate jurisdiction. A short commute that doesn’t cross a county line has no chance of being held to be “traveling.�

Chas.

[srothstein]

Personally, I would have preferred that they change 46.02 to read that it is NOT a violation UNLESS... That would start off with the statement that possession a handgun is not a violation, and then create exceptions for when it IS a violation.

I would have a big problem with a law written this way. Our current philosophy on laws in the US is that nothing is illegal unless specifically forbidden. Writing a law this way changes it to nothing is legal unless permission is given.

The way we have it now, our laws have to write first what is a violation, then write the exceptions to it. Let's leave it like that so we can keep all of our laws the same.

I started to say that I also have a problem with the restriction on owned cars. The more I think about it, the less I think it is really a problem. Consider how often you go out with a friend. If the friend is driving, how did you get the gun there legally? If you had a CHL, then this law doesn't apply. If you are carrying in your car for protection and go get the friend, you probably will drive your car. If the friend came and got you is the only time the law comes into play. How many people that would carry in this case do not have a CHL? The only other time I could think of, I think the car would actually still be under your control. Of course, that was the taxi cab ride. If I am paying, I have rented the car and driver, thus it is under my control. Proof is that it is going where I said, and I can even specify the route taken if I want to.

Until we do away with all of Chapter 46, I will be happy to see this come in as one small step in the right direction. I don't think it will become a problem for anyone else.

[cxm]

From what I have read it does not seem to limit the number of firearms the person in control or owning can have in the vehicle...

FWIW

Chuck

[CWOOD]

I would have a big problem with a law written this way. Our current philosophy on laws in the US is that nothing is illegal unless specifically forbidden. Writing a law this way changes it to nothing is legal unless permission is given.


Until we do away with all of Chapter 46, I will be happy to see this come in as one small step in the right direction. I don't think it will become a problem for anyone else.

Stephan, you make an excellent point regarding the generaly philosophy of all things starting out as legal unless deemed otherwise. Doing away with PC 46.---- is what I had in mind, in effect. I expressed it poorly and thank you for clarifying.

[phuzzygnu]

Hello all. Long time lurker here.

You might find the following e-mail exchange I had with DA Rosenthal interesting. (edited only for formatting and anonymity)



Jason XXXXXXXX <jason.XXXXXXXX @gmail.com> 12:16 pm
to ChuckRosenthal@dao.hctx.net
date Sep 5, 2007 12:16 PM
subject HB 1815
mailed-by gmail.com

I would like to learn your official thoughts on HB 1815, "Motorist
Protection Act" which went into effect on 01 September, 2007.

I respectfully submit to you a weblink for the bill text, as copying it and
pasting it into this e-mail causes the loss of some formatting.


http://www.capitol.state.tx.us/tlodocs/ ... 01815I.htm


I also respectfully submit to you the following:

"AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

The 79th Legislature, Regular Session, 2005, passed a law that was intended
to legalize the carrying of handguns in private motor vehicles by persons
not licensed by the Texas Department of Public Safety (DPS) to carry
concealed handguns. Prior to that, the law had established a defense to
prosecution against a charge of unlawful carrying of a weapon (UCW) if the
person was traveling.

The 2005 law established a legal presumption in Section 46.15, Penal Code,
that a person was traveling if he or she was in a private motor vehicle; was
not engaged in criminal activity other than a Class C misdemeanor or other
traffic regulation; was not prohibited by law from possessing a firearm; was
not a member of a criminal street gang; and was not carrying a handgun in
plain view.

However, some district attorneys instructed police departments to continue
making UCW arrests of motorists who would qualify for the traveling
presumption despite the clear intent of the legislature to establish
protection for such motorists from such arrests in state code. Unsuspecting
motorists who believe they are complying with the intent and spirit of the
law could still face arrest and UCW charges - and then be forced to spend
time and resources hiring an attorney to submit evidence that they qualify
for the traveling presumption under the law.

H.B. 1815 clarifies that a person has a right to carry a handgun, club or
certain knives on the person's own premises or premises under his control,
or inside of, or en route, to a motor vehicle under the person's control. It
would redefine the UCW offense in Penal Code Section 46.02 and specify that
the same criteria a person has to meet in order to qualify for the traveling
presumption under current law would need to be met under Section 46.02,
Penal Code, to avoid committing a UCW offense."


Thank you for your time, and I appreciate your response on this matter.

Jason XXXXXXXX
Houston, TX

----------------


from DA <DA@dao.hctx.net> 1:03 pm

to Jason XXXXXXXX <jason.XXXXXXXX @gmail.com>
date Sep 5, 2007 1:03 PM
subject RE: HB 1815
mailed-by dao.hctx.net

My official thought is that it is the law.

----------------

Jason XXXXXXXX <jason.XXXXXXXX @gmail.com> 1:37 pm
to DA <DA@dao.hctx.net>
date Sep 5, 2007 1:37 PM
subject Re: HB 1815
mailed-by gmail.com

I appreciate your prompt response.

However, I respectfully ask for a some elaboration as rumors are
circulating that the District Attorney's Office has not changed its
previous stance despite the passage of HB 1815.

You were quoted in August 2005 as stating ""It is still going to be
against the law for (unlicensed) persons to carry handguns in autos,"
after the passage of HB 823 which had appeared to have the same
legislative intent.

Thank you for your time.

-Jason XXXXXXXX
Houston, TX

------------------


DA <DA@dao.hctx.net> 5:06 pm
to Jason XXXXXXXX <jason.XXXXXXXX @gmail.com>
date Sep 5, 2007 5:06 PM
subject RE: HB 1815
mailed-by dao.hctx.net

I do not elaborate. Criminal prosecutions are all based on provable
historical facts rather than prospective speculations.
They repealed the law passed in 2005.

------------------


-p.

[flintknapper]

I started to say that I also have a problem with the restriction on owned cars. The more I think about it, the less I think it is really a problem. Consider how often you go out with a friend. If the friend is driving, how did you get the gun there legally? The only other time I could think of, I think the car would actually still be under your control. Of course, that was the taxi cab ride

Depends upon the definition of "control" I suppose.

I wouldn't think "control" necessarily means the person "driving", if not....then "control" is transferable as in your Taxi-Cab example.

If "control" literally means the legal owner of the vehicle, then we are very limited in how we can travel, similarly....if "control" DOES mean only the person driving.....then I hope its not a long trip where you switch drivers.

I am glad there are courts and lawyers to sort this stuff out. All these laws, intents and interpretations hurt my tiny brain.

[AEA]

Well, the only way you are going to get the straight answer from Chuckie is to have someone drive like a fool in Harris County with a gun in the glovebox and see what happens.

I don't think we will have to find anyone to do this as it will be the next thing that we see on the News fairly soon.

[phuzzygnu]

Perhaps I should e-mail Rosenthal with the other apparent viewpoint. Maybe Rosenthal would be more inclined to show his true colors.

Example:

"from: johndoe1234(at)gmail.com

MR ROSENTHAL:
I RECENTLY READ THAT THERE IS A NEW LAW ALLOWING ANY "BUBBA" TO CARRY A GUN IN HIS CAR! THIS IS RIDICULOUS AND I FEEL THAT HAVING MORE GUNS ON THE STREET WILL MAKE PEOPLE USE THEM IN ROAD RAGE SITUATIONS. I FOR ONE DO NOT FEEL COMFORTABLE THAT ANYONE COULD CARRY A GUN. WHY DO YOU NEED TO CARRY A GUN WHEN ALL YOU HAVE TO DO IT CALL THE POLICE WHO ARE THE ONLY ONES THAT SHOULD CARRY GUNS? MORE "REDNECKS" WITH GUNS WILL RESULT IN "THE OLD WEST" ON OUR ROADS AND HIGHWAYS! IS THERE ANYTHING YOU CAN DO TO STOP THIS OR PROSECUTE PEOPLE WHO THINK THEY HAVE THE RIGHT TO PUT ME AND MY WIFE IN DANGER WHENEVER WE GO FOR A DRIVE?

SINCERELY
JOHN DOE
HOUSTON TEXAS


I am going to send this off and see what happens. Any predictions?

-p.

ps: Mr. Rosenthal, if your Google-fu is strong and you manage to track this down, I apologize. Call off your goons. I have a CHL and HB 1815 doesn't even apply to me. Thank you.

[seamusTX]

He's a politician. He's not going to say anything that can be used against him.

- Jim

[phuzzygnu]

He's a politician. He's not going to say anything that can be used against him.

- Jim

Oh really? HB 823 passed in 2005 and appeared to have the same legislative intent:

"While most prosecutors have taken no public position on the law, one district attorney, Chuck Rosenthal of Harris County, actively opposed House Bill 823 during the legislative session and after its passage told the Houston Chronicle, "It is still going to be against the law for (unlicensed) persons to carry handguns in autos.""

(another story)

"State Rep. Terry Keel, who authored the bill, says: 'In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed weapon in a motor vehicle.'"

-San Antonio Express-News, September 2005


Actually, you're probably right. But it's kinda fun, ya know?

-p.

[seamusTX]

I know what he said and did, but no one is running against him because he arrested drivers for UCW. There just aren't enough people who care about the issue.

- Jim

[shooter_tx]

Does Travelling Constitute my commute?

If you commute by car, then the "traveling" defense is irrelevant; you can have a gun in your car. If you commute by bicycle, or some other non-motor vehicle mode of travel, then you'll have to look to the case law for your appellate jurisdiction. A short commute that doesn’t cross a county line has no chance of being held to be “traveling.�

Chas.

But what chance do you think it has of being presumed to be traveling?