New Traveling Law

[BamBam]

How can the D.A. in Harris county prosecute a person for carrying a concealed weapon in the vehicle after the new law went into effect?

[Paladin]

This is one statement he's made:

"Thank you for your concern and legal advice. However there
are things you need to know about what House Bill 823 says and what it does
not say.

September 1, 2005


Sorry to have to reply to all of you at once. I recognize that you all have individual questions or comments but, let me see if I can clarify my position on the handgun law and the change in the law that went into effect today.

Generally, the law says that it is a violation to carry a weapon, including “on or about one’s person� (that’s 46.02 Penal Code)*. On or about the person has been determined by appellate courts to mean within one’s reach without materially changing their position. For example, a gun being the trunk of most cars is not on or about the person.
There are situations when the general rule is not applicable (46.15 of the Penal Code). It is permissible to carry handguns in premises under one’s control, while engaged in hunting and fishing, has a concealed handgun license… a bunch of other activities or while the person is traveling. This has been the law for a long time and several appellate courts have interpreted certain sets of facts to be “traveling� but they’ve never given Texans a definition of traveling. However, the cases where a person is determined to be traveling can best be characterized as in taking a journey from one place to another. This makes sense because the original intent of the law seems to me to have been, for people to be able to protect themselves from highwaymen.
Now, the new law (House Bill 823) says that a person is presumed to be traveling when he 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 the weapon in plain view.
Next, the term presumption has a definite legal description (Section
2.05). Basically, when a fact is presumed, the presumption can be rebutted (or overcome) by evidence. A presumption with which you will all be familiar is the presumption of innocence in every criminal case. But, as I’m sure you understand, the presumption of innocence does not make the person innocent. What it does, is to make the prosecutor prove that someone is guilty. Okay?
Now, State Representative Terry Keel, good guy, long-term legislator and chairman of the House Criminal Justice Committee wrote and sponsored HB 823. Nowhere in the bill does it define the term “traveling�. Nowhere in the bill does it say that the term traveling means anything other than what it has always been. Nowhere in the bill or in the Penal Code or anywhere else I can find, does it define “private motor vehicle�.
Let me use an easy illustration. Let’s say an officer stops a car for running a stop sign and while issuing the ticket sees the butt of a handgun under the driver’s seat. If the driver (actually includes any occupant of the car) has a concealed handgun license, he is supposed to tell the officer that he has a gun and show the officer his license.
But, let’s say that the driver thought it was now okay to carry a gun so long as it stayed in the car.
Question one: if the car is rented from a rental agency or is a company car that the driver may use, it is a private vehicle?
Question two: if the driver is out riding around looking for a fight or is going to go kill someone, unless he tells the officer, how would the officer know that he is engaged in criminal activity?
Question three: while the officer can call to run a criminal history check, a misdemeanor assault case would not be a disqualifier unless it was a family violence case. Other things that will not show include, protective orders, temporary restraining orders, orders as a condition of bail or other judicially ordered prohibition of having a weapon. So how does an officer know these things?
Question four: again unless the driver tells the officer, or the officer just happens to know that the driver is gang banger. How is the officer going to know?
Question five: is partial exposure “in plain view�? Again, unless the driver tells him that he has a gun, and he’s not required to, how would the officer know about the gun in the first place?
Continuing with the illustration. If the officer asks the driver his destination and is told that he (the driver) is going down the street to buy ice cream then head back home to eat it, is the person “traveling� in the historical, judicial meaning of the term?
Question six: should the officer on the street be making a determination that has in the past left to fact finders (juries or judges) to determine?

Okay, maybe we can go back to the House Committee meetings for some elucidation. By law those hearings are tape or video recorded. This law came before the House Criminal Jurisprudence Committee on March 29, 2005 at 6:35 P.M.
Those hearings begin with discussions as to whether the driver crosses or intends to cross a county line. Significant because crossing county lines has been one the determinants appellate judges used in deciding traveling issues. But, to be fair, I’ve never seen a version of the bill that includes such language.
None of the witnesses or legislators ever discusses anything about the general right to have a handgun in your car. One witness, a biker, who goes by the moniker “Sputnik� does say, “I’ve carried a gun since I was nine, and if I expect trouble, I carry two.�

Okay, finally. It is not my job to make the law. It is not my job to interpret the law. I don’t arrest people for firearms violations. But, it is my job to enforce the law. I own over 20 firearms. I have a concealed handgun license. I am married to a federal officer. I have taught all of my children about guns and the safe handling of them; but until the legislature or courts clearly tell me otherwise, if someone has a handgun in their car and they do not fall under a clearly interpreted exception in the law, I will proceed with prosecution.
The reason I contacted the media was to let the citizens know that if they rely on what they think HB 823 means, they may be arrested. One more presumption. All persons are presumed to know the law whether they do or not.
*Texas statutes can be found at http://www.capitol.state.tx.us/statutes

Chuck Rosenthal
Harris County District Attorney "

http://www.packing.org/news/articleview/28/

[GrillKing]

This is one statement he's (Rosenthal) made:

Let me use an easy illustration. Let’s say an officer stops a car for running a stop sign and while issuing the ticket sees the butt of a handgun under the driver’s seat. If the driver (actually includes any occupant of the car) has a concealed handgun license, he is supposed to tell the officer that he has a gun and show the officer his license.

Rosenthal is Incorrect: You only have to display your CHL when you are asked for ID and you are carrying. If you are carrying and are not asked for ID (e.g. passengers in a vehicle), you don't have to present the CHL or otherwise inform the officer.

§ 411.205. DISPLAYING LICENSE; PENALTY. (a) If a
license holder is carrying a handgun on or about the license
holder's person when a magistrate or a peace officer demands that
the license holder display identification, the license holder shall
display both the license holder's driver's license or
identification certificate issued by the department and the license
holder's handgun license. A person who fails or refuses to display
the license and identification as required by this subsection is
subject to suspension of the person's license as provided by
Section 411.187.


I would as a courtesy, but I don't think it is required.

Gary

[txinvestigator]

How can the D.A. in Harris county prosecute a person for carrying a concealed weapon in the vehicle after the new law went into effect?

What "new law". There was a section added to an existing law. And it has been discussed here many times. You should be able to find plenty of interesting reading. ;)