Ok to leave gun in car at school parking lot?

[Charles L. Cotton]

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.

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.

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.

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]

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.

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.

[JohnKSa]

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.

[Charles L. Cotton]

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.

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).

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.

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.

[JohnKSa]

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...

[Charles L. Cotton]

I smell a radically simple solution coming in 2007.

Chas.

[KBCraig]

I smell a radically simple solution coming in 2007.

Chas.

Radically simple solutions involve removing words, not adding them.

Removing huge chunks of words (say, all of PC 46; or, even better, all of Title 10) would be my choice.

Kevin

[Charles L. Cotton]

Radically simple solutions involve removing words, not adding them.

Kevin

Chas.

[tomneal]

Solutions:

The best solution to this "presumption of traveling" is the Texas version of "Alaska Carry".

If you can posess a weapon (firearm, club, knife, sword, or whatever) then you can carry it. Open or Concealed. Loaded or unloaded.

State law Overrules citys and counties.
AND Park Rangers
AND Game Wardens (even on state hunting lands).
AND (If I had my way) Judges

AND If it's locked in your car, it overrules employers.