Traveling

[AV8R]

I travel out of town for business. I do not have my CHL yet. When I travel, I often have to go through border checkpoints also. I do not cross the border and I will be traveling through at least 3 counties.

I would like the personal security of having my weapon with me when I stay in a hotel room. Is this a legal travel? What about while I am out conducting business out of town and have already checked out of my hotel. Is it safe to have it in the vehicle locked and secured?

Although I rarely stay in motels, to me, on that occasional road trip, there's nothing quite as comforting as a handy 12ga. That would eliminate the need to consider the traveling clause. (This is a problem which is more easily eliminated than solved.)

[wrt45]

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

Would it be more correct to say that the presumptive criteria as they now stand are a "defense to prosecution" whereas the previous wording offered a defense at trial, with the burden of proof of travel falling on the accused?

[txinvestigator]

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

Would it be more correct to say that the presumptive criteria as they now stand are a "defense to prosecution" whereas the previous wording offered a defense at trial, with the burden of proof of travel falling on the accused?

What you describe IS a defense to prosecution. The presumption is not a defense to prosection. Here is how the penal code defines the presumption.

§ 2.05. PRESUMPTION. (a) Except as provided by
Subsection (b), when this code or another penal law establishes a
presumption 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 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; 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 and the specific element to which it applies, as
follows:
(A) that the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
(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 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; 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 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.

[kauboy]

So your saying that even though I am presumed to be traveling(if I meet all 5 criteria), I can still go to court? Thats not what the law was intended for. The state rep, who voted for this law, stated that this presumption is supposed to give a stopped citizen protection from opinion(officer's, DA's or judges's). How can these DAs get away with this. It's total bull! At least it is a "presumption in favor of the defendant", so that offers some comfort (but not much).

[seamusTX]

Here's a case where you would probably get busted: Sitting in a car in front of your ex-wife's house at 2 a.m.

This law is a mess. I don't know the politics that went into the state that it's in. As someone said, politics is the art of the possible, and what we have is what was possible.

We need to elect more pro-RKBA representatives and DAs. Even then, the police organizations and unelected prosecutors are not going to favor giving everyone the right to carry a handgun in a car.

- Jim

[cxm]

The difficulty here is a "presumption" can be refuted.

For example, cop stops you in Harris county one Friday afternoon... she also doesn't like guns... and finds yours....Also finds you have some magazines in your car...decides you were shoppng locally for magazines (printed type.) or for that matter some groceries.

Now, the copette decides you are not a traveler and therefore arrests you... takes you to the Harris Co. Jail and books you in. You use your call to call you spouse who manages to find a lawyer. Because it is Friday, you get fitted with an orange jumpsuit and share a bedroom with 19 of your (new) closest friends... maybe meet Bubba too...

Monday you get arraigned and post bond...maybe get lucky and get RORed. If you post bond the fee is gone forever....

Now you wait until the DA decides if he will make a test case out of you...the Harric Co. DA has said he will...so you get to get a second mortgage to pay your lawyer to defend you.

Now,you get to court and the jury decides you REALLY were traveling...and you are released... with an arrest record, and poorer by $50,000 to $150,000.

Of course the jury may be having a bad day too... you may have worse problems than money if they are convinced the DA can refute your presumption of innocence.

Of course you proved your point...

Contrast that with the cost of a CHL.

FWIW

Chuck

So your saying that even though I am presumed to be traveling(if I meet all 5 criteria), I can still go to court? Thats not what the law was intended for. The state rep, who voted for this law, stated that this presumption is supposed to give a stopped citizen protection from opinion(officer's, DA's or judges's). How can these DAs get away with this. It's total bull! At least it is a "presumption in favor of the defendant", so that offers some comfort (but not much).

[Crossfire]

Of course you proved your point...

Contrast that with the cost of a CHL.

Well said!

[propellerhead]

The difficulty here is a "presumption" can be refuted.

For example, cop stops you in Harris county one Friday afternoon... she also doesn't like guns... and finds yours....Also finds you have some magazines in your car...decides you were shoppng locally for magazines (printed type.) or for that matter some groceries.

Now, the copette decides you are not a traveler and therefore arrests you... takes you to the Harris Co. Jail and books you in. You use your call to call you spouse who manages to find a lawyer. Because it is Friday, you get fitted with an orange jumpsuit and share a bedroom with 19 of your (new) closest friends... maybe meet Bubba too...

Monday you get arraigned and post bond...maybe get lucky and get RORed. If you post bond the fee is gone forever....

Now you wait until the DA decides if he will make a test case out of you...the Harric Co. DA has said he will...so you get to get a second mortgage to pay your lawyer to defend you.

Now,you get to court and the jury decides you REALLY were traveling...and you are released... with an arrest record, and poorer by $50,000 to $150,000.

Of course the jury may be having a bad day too... you may have worse problems than money if they are convinced the DA can refute your presumption of innocence.

Of course you proved your point...

Contrast that with the cost of a CHL.

FWIW

Chuck

Wow! This is exactly why I applied for a CHL.

[Rich]

[Originalist]

The trick is to not get caught with something that can tie you down to not traveling

Good example - Driving from San Antonio to Houston, stopping along the way to get food, gas, snacks = okay

Bad example - Getting to your mother in laws in houston then driving to the Wal Greens = not okay

Biggest thing to remember all the law did was put the burden on law enforcement to prove that you were not "traveling" i.e. groceries in car could mean not traveling, driving from mother in laws house to walmart probably not traveling either and if you happen to get stopped from Wal Mart to M-I-L house = got some splainin to do.

Anyone correct if I am off but I am pretty sure that I am at least very close.

[txinvestigator]

The trick is to not get caught with something that can tie you down to not traveling

Good example - Driving from San Antonio to Houston, stopping along the way to get food, gas, snacks = okay

Bad example - Getting to your mother in laws in houston then driving to the Wal Greens = not okay

Biggest thing to remember all the law did was put the burden on law enforcement to prove that you were not "traveling" i.e. groceries in car could mean not traveling, driving from mother in laws house to walmart probably not traveling either and if you happen to get stopped from Wal Mart to M-I-L house = got some splainin to do.

Anyone correct if I am off but I am pretty sure that I am at least very close.

That is not correct at all. Read thru this thread and you will see. If you meet the 5 criteria of the presumption you ARE traveling. Groceries in the car are irrelevant.

[flintknapper]

The trick is to not get caught with something that can tie you down to not traveling

Good example - Driving from San Antonio to Houston, stopping along the way to get food, gas, snacks = okay

Bad example - Getting to your mother in laws in houston then driving to the Wal Greens = not okay

Biggest thing to remember all the law did was put the burden on law enforcement to prove that you were not "traveling" i.e. groceries in car could mean not traveling, driving from mother in laws house to walmart probably not traveling either and if you happen to get stopped from Wal Mart to M-I-L house = got some splainin to do.

Anyone correct if I am off but I am pretty sure that I am at least very close.

That is not correct at all. Read thru this thread and you will see. If you meet the 5 criteria of the presumption you ARE traveling. Groceries in the car are irrelevant.

This is how I understand it as well.

[GrillKing]

So what will it take to resolve this?

I see 2 alternatives:

1.) Case law that clarifies (actually confirms) the law to those who will continue to arrest the innocent. At that point, would they really have to admit defeat? Unfortunately, an innocent goes to jail in this scenario.

2.) Legislative clarification - new law: (i.e., define traveling, not a presumption, but a definition)

[txinvestigator]

So what will it take to resolve this?


2.) Legislative clarification - new law: (i.e., define traveling, not a presumption, but a definition)

Thats what I would like to see. However, I would like to see more added to the definition.

[orc4hire]