Car Carry Legal now?

[SkipB]

Yes sir Jim you are right on there. CHL is the ticket.

[pt145ss]

I agree with txinvestigator on this one, there is absolutely no ambiguity about the code. When I was waiting on my plastic to arrive I emailed DPS about it. Their response was in fact consistent with the code in that as long as you meet the criteria you could have a loaded handgun in the vehicle. The problem is not in the code itself, the problem is with LE policy for any given jurisdiction. DPS warned me that each jurisdiction are allowed to conduct traffic stops as the see fit and are allowed to handle concealed handgun issues as they see fit. Meaning places like Harris County can still make the arrest and allow the DA to determine if charges are pressed.

Since then, I spoke with 2 Travis County sheriffs specifically about this issue, both of whom said that if they find a concealed handgun in a vehicle and no one has a CHL, the person in control of the vehicle is going to jail. One of the sheriffs went as far to say “You may beat the wrap but you will not beat the ride� (I’ve heard people say this before….but this was the only time I heard it from a LEO and I was floored by his mentality). I also had the opportunity to speak to one Austin PD officer who said something similar but it was more along the lines that it depends on how the traffic stops goes insinuating that if you are not an rear he might let it slide, but if are being an rear you are going to jail.

In my mind the question is not about the traveling law itself, but more about how much immunity is extended to LEOs who arrest someone even though no law was broken?

It has nothing to do with the traveling law. We need to ALL understand that. it is no longer a violation of 46.02, UCW, to have a handgun in a vehicle under your control if you are not a criminal, etc.

I'll answer your other question in another post.

You are right...i refered to it as traveling out of habit because at the time it said you are presumed to be traveling if...yada yada yada.

[pt145ss]

Things can be ugly in TX. I was arrested once in my much younger years. Long story short, someone said I had said something that I did not say and the officer arrested me for terroristic threat. The officer simply asked me my name and address and then arrested me. He arrested me without asking any other questions and therefore he never read me my rights nor did he tell me what I was under arrest for. I was not read my rights until the arraignment at which time the judge read me my rights and told me what the charge was…he did not even ask if I plead guilty or not and simply set bail (was set free on my resonance). Later all charges were dropped. Point being, here in TX the officer only needs to write an affidavit saying what he/she believes to be true…not what is actually true. Then DA then decides to go forward or not.

In my case the officer basically said that he believed the other person’s statement and that was all that was needed for the affidavit and arrest….not that he did any investigating to determine truth.

A peace officer is not required to read you your rights when he arrests you. And your incident has nothing to do with this discussion.

This was relevent in the fact that this was where the thread was heading. It is relevent because i was arrested without warrant but they could not decide whether to book under family violence or terroristic threat. the chose the later simply based on the officer's belief as stated in his afidavit. they did hold me for a long time (and i believe that under the code of criminal procedure they have 48 to bring me in front of the magistrate). This all lends credence that they can arrest for pretty much what ever they by fabricating or reasonably streaching some belief

[casingpoint]

Assuming txinvestigator has presented the latest rendition from the TX Penal Code, there may indeed exist some ambiguity in the law:

46.02(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not...inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which...the handgun is in plain view.

What exactly is the safe harbor, inside a vehicle with a handgun, or inside a vehicle with the gun concealed from plain view?

[Xander]

Someone up the thread asked what the police could charge a person carrying a handgun in a car with. They can charge with UCW (46.02). They can say that they need to determine whether or not the person is prohibited from possessing firearms or a gang member.

I dunno Jim, I have to disagree with you on this one. I don't think that would ever fly. A LEO can't just arrest somebody without having reasonable suspicion that a crime has been committed. They can't arrest you for UCW and then investigate...They would need to be able to articulate exactly why they believed that you were a prohibited person and thereby committing a crime. "I wanted to check 'em out" isn't any more of a reason to arrest someone with a gun in their car than it would be if they decided to pull someone over at random, arrest them, haul them in, and then run them through the breathalyser "just to make sure" that they aren't driving drunk.

[txinvestigator]

Assuming txinvestigator has presented the latest rendition from the TX Penal Code, there may indeed exist some ambiguity in the law:

46.02(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not...inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which...the handgun is in plain view.

What exactly is the safe harbor, inside a vehicle with a handgun, or inside a vehicle with the gun concealed from plain view?

How is that ambigious? If it is in plain view, the person committs an offense.

[txinvestigator]

Someone up the thread asked what the police could charge a person carrying a handgun in a car with. They can charge with UCW (46.02). They can say that they need to determine whether or not the person is prohibited from possessing firearms or a gang member.

I dunno Jim, I have to disagree with you on this one. I don't think that would ever fly. A LEO can't just arrest somebody without having reasonable suspicion that a crime has been committed. They can't arrest you for UCW and then investigate...They would need to be able to articulate exactly why they believed that you were a prohibited person and thereby committing a crime. "I wanted to check 'em out" isn't any more of a reason to arrest someone with a gun in their car than it would be if they decided to pull someone over at random, arrest them, haul them in, and then run them through the breathalyser "just to make sure" that they aren't driving drunk.

Generally, reasonable suspicion is not enough on which to arrest. in Texas, a Peace Officer can arrest for any crime committed in his presence or view. To know if there was an offense, the officer must establish the elements of the offense, which are;

(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the offense.


Minus those, he cannot arrest.

A Peace Officer can also arrest for felonies upon probable cause;

There are other offenses for which an officer can arrest based on probable cause too.

The person must be taken before a magistrate within 48 hours, but that has nothing to [abbreviated profanity deleted] with an officers duty to arrest only as per the CCP.

[seamusTX]

I dunno Jim, I have to disagree with you on this one. I don't think that would ever fly. A LEO can't just arrest somebody without having reasonable suspicion that a crime has been committed. They can't arrest you for UCW and then investigate...

I can only say we'll see. If the opinions of police officers relayed in this thread are accurate, we will see.

- Jim

[casingpoint]

txinvestigator wrote:
"If it is in plain view, the person commits an offense"

But said person only commits an offense if not inside a motor vehicle, according to the 46.02(a).

[txinvestigator]

txinvestigator wrote:
"If it is in plain view, the person commits an offense"

But said person only commits an offense if not inside a motor vehicle, according to the 46.02(a).

See in red;

§ 46.02. Unlawful Carrying Weapons.

Statute text
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.

I don't see the confusion. It was written this way so on your own property you are not limited in how you can carry. But in your car it must be concealed.

[flb_78]

In plain view is anything above the window line. When Im in my van, it sits on the center console. It is below the window line and it's legal. I could keep it in my lap and it would be legal just as long as the handgun stays below the window line.

[srothstein]

There are two points I want to address that may be relevant to this issue. Well, one is not relevant but I want to correct a common mistaken belief so I will do that first.

The police cannot detain anyone without filing charges except for a short detention for investigation. The Fourth Amendment prohibits this as it would be a seizure. How long is a short detention? That is not quite as clear. The SCOTUS has previously ruled that 30 minutes is not an unreasonable detention and was legal. It also ruled that 2 hours was unreasonably long. So we have one limit that 30 minutes is legal and another limit that 120 minutes is not. The time in-between these two limits would appear to still be a gray area. The question to be answered would be how reasonable the actions of the officer were for that circumstance. Based on recent SCOTUS rulings, I think they would be reluctant to go more than the 30 minute limit, but I could see that if the time was to retrieve the eye witness for a line-up, and the delay was as minimal as the police could make it, they might go along. That is my opinion on the guidelines, but it also certainly shows that there is no way a person can be held for 72 hours in the US.

Now, for the more relevant issue of what the HPD officers feel. The problem is not that the officers want to challenge the law or not support it. They probably feel it is sketchy because the previous law was not clear and they simply do not know the new law. Officers need to be trained in things and this can take time. HPD, like most major departments, probably schedules its officers for an annual in-service training (my department does this and most do). The training will be developed and taught for a year at a time to allow all officers to go through the same training. It takes a year to rotate all officer through this type of training class. In Service classes may be taught on the basis of the calendar year or the fiscal year (my department uses the fiscal year and it takes us from January to June to get all trained). Either way, the training for the last year was developed before the legislative session. The new training with the updates was just started. It will take them some time to get the word to all of the officers.

To give another facet to the problem, TCLEOSE (the certifying agency for police) mandates that the training take the form of a specific course with specific content. The legislative updates course is named 3232, Special Investigative Topics. Every officer in the state gets this course once every four years. But, TCLEOSE has to develop the course content for us to teach. I just received the new course content on Nov. 13. If I tried to teach this course before then, the officers would not get credit for it.

Some agencies, mine included, get around this problem by teching two courses. We developed a special legislative updates course for our officers, so that all of them received an update in October of this year. We will then start teaching the new 3232 class next year sometime, probably in March. It means our officers will get some material twice, but we needed an in depth class on the Alcoholic Beverage Code and it is not included in 3232.

[txinvestigator]

srothstein, great points.

We had roll call training when the new laws went into effect. A directive was passed down to each supervisor and the new laws were covered over a period of a couple of weeks during a short period every day at briefing/rollcall.

[casingpoint]

txinvestigator,

Let’s reverse engineer the sentences (no pun intended) and continue to focus only on handguns in vehicles.


46.02

(a)--A person inside a motor vehicle with a handgun in their possession does not commit an offense.

(a-1)—A person inside a motor vehicle who possesses a handgun in plain view commits an offense.


Maybe this law was written by University of Texas alumni redactors for University of Houston alumni prosecutors in a moment of transcendental synergy.

But this Aggie is having a hard time with the ambiguity inherent in this statute.


Thanks flb_78 for clearing that up about “in plain view.� That is comforting, unless one rides a motorcycle..........

[txinvestigator]

txinvestigator,

Let’s reverse engineer the sentences (no pun intended) and continue to focus only on handguns in vehicles.


46.02

(a)--A person inside a motor vehicle with a handgun in their possession does not commit an offense.

(a-1)—A person inside a motor vehicle who possesses a handgun in plain view commits an offense.


Maybe this law was written by University of Texas alumni redactors for University of Houston alumni prosecutors in a moment of transcendental synergy.

But this Aggie is having a hard time with the ambiguity inherent in this statute.


Thanks flb_78 for clearing that up about “in plain view.� That is comforting, unless one rides a motorcycle..........

Perhaps you are overthinking it. No one I know has any trouble with understanding the statute.