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[WildBill]

I love these forums..... The different mindsets and points of view are interesting to me

Some folks worry an uninformed officer would arrest them for doing something that is not illegal, and others are unconcerned that they could ever be charged with an offense if there is a defense to prosecution available. Two opposite ends of the spectrum.

It's called diversity.

[jbarn]

Howdy, 46.02 of the penal code makes it unlawful to carry a handgun or about your person unless you meet specific requirements. The law does not address the loaded or unloaded state of the gun, or whether it is concealed or not. Any way is Unlawful minus the exception.

46.02 goes on and says carry on your own premise or premises under your control is not a violation. No mention of open or concealed. So carry either way is legal.

It also makes car or boat carry lawful if the handgun is not in plain view. (Must be concealed)



PC 46.15 (b) says that 46.02 does not apply to a person who is traveling. Open or concealed.

[srothstein]

Nightmare and Howdy,

A person who meets the rules of traveling, as defined in PC 46.15 and case law, is exempt from PC 46.02. Since PC 46.02 makes all carrying illegal, either open or concealed, a person who is traveling can then carry openly or concealed.

The problem is that there is no legal definition of traveling in the Penal Code. The Code Construction Act then says that we use its normal meaning unless a technical meaning has been arrived at or implied by other law. The controlling case law on this stems from 1909 (I think). In a case back then, the appeals court ruled that traveling was a condition to be determined by the trier of fact. So, if you can convince the jury you were traveling, then you can carry. If you can't, then you are not traveling.

In its original wording, the MPA (not called that then) said that traveling included being in a car. It did not say that was the only form of traveling. In its current configuration, the MPA makes no mention of traveling and does not impact the definition in any way. It is not part of the elements of the offense for the prosecution to prove that you were not in a car with the weapon concealed.

So, to give at least one example of a traveler, a person who is riding a horse from Fredricksburg to San Antonio for the trail rides leading up to the rodeo could make a strong argument that they were traveling and could wear their STI 1911 openly. I would bet on their being arrested anyway, but I think a good lawyer could make one heck of an argument that this was traveling, as intended by the exception since it was first passed in the 1800's. I am not recommending this, but i would be willing to testify in their behalf if it happens.

[howdy]

So we all agree that carrying a handgun in your car is legal (with a few exceptions) while driving around running errands and doing everyday stuff and that the handgun must be concealed. We also agree that 46.02 DOES NOT Apply to a person traveling, therefore that person can carry a handgun in their vehicle with no concern to keeping it concealed. Now all one has to do is get a jury to believe you were traveling when no definition of traveling exists. Each case stands on its' on. I believe the MPA was passed for this specific reason. It takes out the traveling requirement and just says that a handgun in the car is legal as long as certain requirements are met, one being the gun is concealed. So is it not a moot point that it is "legal" if traveling to have a gun in the open when we really don't know when "legal" is?

If a rodeo trail rider is legal to open carry since he is "traveling", then would a motorcycle rider fall under that same assumption if he was on a road trip? (Not asking if he will get arrested, just is it "legal")

[tbrown]

Now all one has to do is get a jury to believe you were traveling when no definition of traveling exists.

Aye, there's the rub.

So is it not a moot point that it is "legal" if traveling to have a gun in the open when we really don't know when "legal" is?

I think it's similar to the point that it's legal to carry a rifle or shotgun in Texas until some ninny is offended and whines that carrying a rifle in Texas = disturbing the peace.