Unlicensed carry

[G.A. Heath]

You do not need a CHL if you are carrying a HANDGUN, ILLEGAL KNIFE OR CLUB as a "traveler". You can carry open, concealed or however you wish. You may get to explain yourself frequently along your journey depending on your mode of travel. You may encounter different interpretations of how the law is applied in a GUNS FREE SCHOOL ZONE. For this example, lets assume you are walking from Beaumont to El Paso. The Motorist Protection Act will not apply for my scenario.

First off open carry is not legal for any of the weapons above unless you are on property you own or control, or with some very limited exceptions.

And one of those exceptions is "traveling".

You should have at least read or included the next sentence in my post when you quoted it which said:

The Motorist Protection Act specifically states the weapon must be concealed.

For the record that will be Texas Penal code 46.02(a-1)(1)

[sjfcontrol]

I think the argument here is that PC46.15(b)(2) -- overrides ALL of section 46.02 if the person is traveling. Since it is 46.02(a-1)(1) that requires the handgun to be concealed, presumably, the "traveler" is not required to conceal the handgun.

I am NOT saying this is fact, just the way it appears when examining the wording of 46.15(b)(2)

[G.A. Heath]

I think the argument here is that PC46.15(b)(2) -- overrides ALL of section 46.02 if the person is traveling. Since it is 46.02(a-1)(1) that requires the handgun to be concealed, presumably, the "traveler" is not required to conceal the handgun.

I am NOT saying this is fact, just the way it appears when examining the wording of 46.15(b)(2)

I understand that, however where is traveling defined? How is it defined? Is there any valid case law on it's definition? Who will decide if your traveling? I travel 20 miles each way to work in the same county, would that qualify as traveling under this law? I need to travel 4 miles to cross a county line, is that traveling. Thats the problem with trying to use 46.15(b)(2) as it is open to interpretation, and what happens if the police, CA/DA, judge, and jury don't agree with your definition?

[sjfcontrol]

I think the argument here is that PC46.15(b)(2) -- overrides ALL of section 46.02 if the person is traveling. Since it is 46.02(a-1)(1) that requires the handgun to be concealed, presumably, the "traveler" is not required to conceal the handgun.

I am NOT saying this is fact, just the way it appears when examining the wording of 46.15(b)(2)

I understand that, however where is traveling defined? How is it defined? Is there any valid case law on it's definition? Who will decide if your traveling? I travel 20 miles each way to work in the same county, would that qualify as traveling under this law? I need to travel 4 miles to cross a county line, is that traveling. Thats the problem with trying to use 46.15(b)(2) as it is open to interpretation, and what happens if the police, CA/DA, judge, and jury don't agree with your definition?

Yep! That's the problem with claiming you're traveling alright!
By the way, seems to me that you're "traveling" whenever you're moving your body from one location to another. So as long as you're not sitting in a stationary chair, or asleep, you're probably traveling. Of course, a DA might disagree with this definition.

[tacticool]

I think the argument here is that PC46.15(b)(2) -- overrides ALL of section 46.02 if the person is traveling. Since it is 46.02(a-1)(1) that requires the handgun to be concealed, presumably, the "traveler" is not required to conceal the handgun.

I am NOT saying this is fact, just the way it appears when examining the wording of 46.15(b)(2)

I understand that, however where is traveling defined? How is it defined? Is there any valid case law on it's definition? Who will decide if your traveling? I travel 20 miles each way to work in the same county, would that qualify as traveling under this law? I need to travel 4 miles to cross a county line, is that traveling. Thats the problem with trying to use 46.15(b)(2) as it is open to interpretation, and what happens if the police, CA/DA, judge, and jury don't agree with your definition?

Probably the same as if you're hunting or fishing and they don't agree with your opinion that "the weapon is a type commonly used in the activity."

Or if they arrest one of those guys who open carries at a gun show, because they don't agree with his "other sporting activity" definition.

[srothstein]

I think the argument here is that PC46.15(b)(2) -- overrides ALL of section 46.02 if the person is traveling. Since it is 46.02(a-1)(1) that requires the handgun to be concealed, presumably, the "traveler" is not required to conceal the handgun.

I am NOT saying this is fact, just the way it appears when examining the wording of 46.15(b)(2)

I understand that, however where is traveling defined?

I have to point out that this is a different argument from whether or not traveling meets the exception. I have always read the traveling exception the same as the police exception. Nothing in 46.02 applies to a traveler.

How is it defined? Is there any valid case law on it's definition? Who will decide if your traveling? I travel 20 miles each way to work in the same county, would that qualify as traveling under this law? I need to travel 4 miles to cross a county line, is that traveling. Thats the problem with trying to use 46.15(b)(2) as it is open to interpretation, and what happens if the police, CA/DA, judge, and jury don't agree with your definition?

This has always been one of the problems with traveling. The Court of Criminal Appeals has been asking the legislature to define this for well over 100 years. We did have a sign on what is traveling for two years, when the MPA was first written as a presumption of traveling. If a new court case ever comes up, this may help or hurt when used for legislative intent.

But for now, there is a court case from 1909 (IIRC) that says that traveling is a fact to be determined by the trier of facts (jury if there is one, trial judge if no jury). This has the effect of making traveling whatever you can convince the jury it is. And, if I understand the legislative process correctly, it makes it very hard or impossible to appeal a definition of traveling from a jury. I am not up on all of the legal rules on appeals and I think Charles or one of the other attorneys will correct me, but something is determined as a fact by the jury, I don't think it can be appealed without significant new evidence. In a lot of ways, it is like appealing the credibility of a witness. The original trier gets to make the decision and you are stuck with it.

[WildBill]

I have to point out that this is a different argument from whether or not traveling meets the exception. I have always read the traveling exception the same as the police exception. Nothing in 46.02 applies to a traveler.

This has always been one of the problems with traveling. The Court of Criminal Appeals has been asking the legislature to define this for well over 100 years. We did have a sign on what is traveling for two years, when the MPA was first written as a presumption of traveling. If a new court case ever comes up, this may help or hurt when used for legislative intent.

But for now, there is a court case from 1909 (IIRC) that says that traveling is a fact to be determined by the trier of facts (jury if there is one, trial judge if no jury). This has the effect of making traveling whatever you can convince the jury it is. And, if I understand the legislative process correctly, it makes it very hard or impossible to appeal a definition of traveling from a jury. I am not up on all of the legal rules on appeals and I think Charles or one of the other attorneys will correct me, but something is determined as a fact by the jury, I don't think it can be appealed without significant new evidence. In a lot of ways, it is like appealing the credibility of a witness. The original trier gets to make the decision and you are stuck with it.

And I always thought that gambling was illegal.
Hopefully, the laws will be amended so that this is no longer an issue.

[Bullwhip]

Hopefully, the laws will be amended so that this is no longer an issue.

The 2011 session could fix it all by repealing chapter 46.

Make it a lot simpler for everbody, citizens and cops and judges and DA. No law against it, it's legal.

[Beiruty]

As of now an open carry advocate, could open carry and wear a t-shirt that reads:

Carrying under the the Authority of: PC46.15(b)(2)

The only caveat, the actor needs to keep moving! And just to be on the safe side, carry a backpack with a enough stuff for a sleepover.

Google search dig up: http://forum.opencarry.org/forums/showt ... t-Accompli" onclick="window.open(this.href);return false;

Note, it was NOT me who posted there ;)

[wharvey]

Long ago I was told that traveling was defined as crossing 2 county lines, overnight trip, and to an area you don't normally frequent. Have no idea if it was written law or just hearsay.

So when I was in college traveling home on holidays and summers, even though I was crossing the entire state; Amarillo to Houston, I wasn't traveling because I did it on a regular basis. I carried on any way with the traveler claim as an hopefully ace in the hole. All it is anyway is a defense against prosecution, not a protection against arrest. It all depended on the LEO you might get stopped by.

Back then you couldn't even legally have a handgun in you car so traveler status was much more important than it now seems to be.