Traveling

jimlongley · #61

kauboy wrote:I appreciate the clarification as well ;)

If your not in a private vehicle, you're not traveling.

That's the one that I disagree with. If I get on the DART up here in Collin County, and travel to the Forth Worth Zoo (after changing to the TRE), I have met the previous criteria for traveling, I will be crossing three county lines and using a route I don't usually use.

OTOH, in order to get to and from the DART legally I will have to be in possession of a CHL, rendering the question moot.

cyphur · #62

If one meets that presumption would that be a defense to prosecution?

I would think a DA would have a rough time getting a indictment against someone if they meet a black and white case with an affirmative defense to prosecution - regardless of their 2A opinions. I've been known to be wrong before....

kauboy · #63

jimlongley wrote:
kauboy wrote:I appreciate the clarification as well ;)

If your not in a private vehicle, you're not traveling.
That's the one that I disagree with. If I get on the DART up here in Collin County, and travel to the Forth Worth Zoo (after changing to the TRE), I have met the previous criteria for traveling, I will be crossing three county lines and using a route I don't usually use.

OTOH, in order to get to and from the DART legally I will have to be in possession of a CHL, rendering the question moot.

I don't really understand this. If you are taking public transportation, and don't have a CHL, you cannot have a gun on you. Crossing county lines has NEVER been a criteria for traveling. That was just one judges interpretation of the law. Am I missing something from what your saying or are you saying that you can carry on a DART bus without a CHL?

Mithras61 wrote:You're dodging the question as I asked it, sir. I specifically qualified that the handgun state was exluded from being illegal in my question.

Furthermore, he exited the vehicle aside from the LEO stopping him. That is a strawman argument.

As to the weapon being kept in a private vehicle, it can be kept there, provided that it is secured (as in locked to something like the vehicle or the frame of the seat). It can't be just chucked under the seat or in the glove box.

Anyway, my point was that it is conceivable to me that someone may not have all five conditions apply and still net be in violation of the law because they were actually traveling. I feel the definition and conditions specified are fairly narrow.

I am not dodging anything. I am specifiacally talking about the Texas law that states that if a handgun is in plain view in your vehicle, the person is not legally traveling with said handgun. The fact that he was out of the car doesn't even strike me as a ceasing to his travel. The officer probably had different cause to press the issue. You can't throw in a "what if" in a scenario that can't apply in this state. Thats all we're talking about here. If your question is actually dealing with the Law we are discussing, then please restate it and I'll comment. Otherwise, I see no need to continue a discussion about it in this thread. Start another one if you would like to propose a scenario in which a handgun in plain view is legal.

txinvestigator · #64

kauboy wrote: I am specifiacally talking about the Texas law that states that if a handgun is in plain view in your vehicle, the person is not legally traveling with said handgun. .

That is not correct as a blanket statement. Show me the Texas law that states " if a handgun is in plain view in your vehicle, the person is not legally traveling with said handgun". There is no such law.

The presumption is just that, it means you are presumed to be traveling if you meet those 5 criteria. It does NOT exclude other legal means of traveling.

Again, if it were exclusive the legislature would have made those criteria a DEFINITION under 46.01. But they did not because they did not want to limit the traveling exception to just the presumption.

kauboy · #65

TX, I still think you logic is slightly flawed. The law gives the citizen the protection of presumption. That means that they don't have to prove they were traveling as long as those five things were met. If you have a handgun in plain view, then you do not have any presumption of traveling, and you get to have a fun time in court trying to prove that your innocent (which is odd since in this country we are innocent until proven guilty, but not here I guess

) Along with the fact that you could be arrested for Unlawful Carry of a Weapon, you could also be charged with Failure to Conceal if you have a CHL.

Look, my main point is, if I meet those five criteria, I should not fear being arrested. I should not have to defend my actions or prove I'm innocent, but if a dictatorial DA decides to drop his personal opinion in my face and have the officer arrest me, then that is wrongful arrest and grounds for litigation.

EDIT: How can you have "other legal means of travel" if its not described in the law? You are going to put your future in the hands of a judge that gets to interpret the law in any way he feels like that day?

#66

txinvestigator is correct, one way you can utilize the "traveling" defense is by meeting the five elements of the traveling presumption. If you do not meet five elements, you cannot avail yourself of the presumption, but you still have the opportunity to prove you were traveling.

A presumption is merely a "short cut" to proving a relevant fact; it is not the only way.

Chas.

kw5kw · #67

The law is more interconnected than a spider web!

kauboy · #68

I can vaugley see what your talking about but... why in this world would you run that risk??? I mean, if they are willing to arrest and prosecute even if you are "protected" under the presumption, wouldn't someone who falls outside of the presumption be shark bait? The purpose of the presumption addition was to give you protection. Why would anybody thumb there nose at it and go it alone?

txinvestigator · #69

kauboy wrote:I can vaugley see what your talking about but... why in this world would you run that risk??? I mean, if they are willing to arrest and prosecute even if you are "protected" under the presumption, wouldn't someone who falls outside of the presumption be shark bait? The purpose of the presumption addition was to give you protection. Why would anybody thumb there nose at it and go it alone?

I completely agree with you in your thesis. However, we were dicsussing specifics of the law.

Discussion is good for all of us. I always enjoy friendly banter!

kauboy · #70

Agreed, as long as it stays civil, many can benefit from it.

stash · #71

RoundRock Gun Fan - Thanks for the answer. I appreciate that and will keep the info in mind at renewal time.

Commander · #72

kauboy wrote:The "Traveling" Non-applicability Law was implaced in 1997 since Texas hasn't always been a CC state.
However, the traveling presumption wording was only added last year(2005) in September.

Many years ago, (1974 to be exact) when I worked at a local PD, I remember the "traveling" exemption so I think its been around for quite some time now.

Back then we had two cases of "Travelers" with handguns in one night:
#1- A father and son drive to town and check into a motel. Then they start driving around town looking for the daughter/sister's ex-boyfriend to "settle" a issue. They were stopped and a handgun located in the car. They went to jail. The arresting officer decided that once they checked into the motel they were no longer traveling.

#2- A jewerly salesman was passing through town. During a traffic stop, a handgun was located in his front seat. He was sent on his way as he was still traveling.

kauboy · #73

I only made mention of the 1997 law because that is the date under the traveling portion of the Non-applicability section in the Penal Code. It could be that the section was revised in '97 but traveling may have always been there.

txinvestigator · #74

kauboy wrote:I only made mention of the 1997 law because that is the date under the traveling portion of the Non-applicability section in the Penal Code. It could be that the section was revised in '97 but traveling may have always been there.

Years ago it was not an exception, but a defense to prosecution.

kauboy · #75

Aha! Hence the change then. Thanks TX. I don't really think I like that change though