CCW in a motor vehicle in Texas

[LAK]

Just watching an early morning edition of "COPS" on the telescreen; Dallas police busting someone for DWI, and carrying a handgun (concealed in the vehicle). While they might have a sound DWI case, unless this is an old re-run, these Dallas cops are behind on Texas law concerning the carrying of concealed handguns while in a motor vehicle - where no pernit is required under current Texas law.

------------------------------------------------

http://ussliberty.org
http://ssunitedstates.org

 

[DKSuddeth]

While it IS lawful to have a concealed weapon in ones car, WHILE TRAVELING, it is not ok to do so while committing another crime like driving under the influence.

 

[ready4shtf]

+1, I was about to say the same. If it was a speeding ticket, the handgun would have been ok, but the DUI makes it a double whammy.

 

[Glockamolie]

Either way, traveling is a defense to prosecution. You may beat the rap, but you might not beat the ride if the cops want to arrest you. Harris County DA has said (paraphrasing) law be damned, he'll prosecute you if carrying without a CHL.

 

[dogtown tom]

From the DPS website:

http://www.txdps.state.tx.us/administration/crime_records/chl/Traveling.pdf

New Law on Carrying Firearm while “Traveling”
(House Bill 823, 79th Regular Legislative Session, amending Penal Code
Sections 2.05 and 46.15)

In Texas, it is generally unlawful to carry a handgun in public, including within a private
vehicle. However, Texas also recognizes several exceptions. One such exception is applicable
when the citizen is “traveling.”

“Traveling” has never been defined by the legislature. Texas courts have said that in
general, the determination of whether a citizen is traveling is to be determined on a case by case
basis, depending on the specific circumstances. Texas courts have generally considered the
distance, time, and mode of travel in determining whether the citizen is traveling and have found
“traveling” to generally encompass overnight travel, through multiple counties.

The change in the law, effective September 1, 2005, places the burden of proof on the
State rather than the citizen as to whether or not the citizen was traveling. In other words, the
State must prove beyond a reasonable doubt that the citizen was NOT traveling, rather than the
citizen having to prove that he or she WAS traveling. The new law also describes the
circumstances under which a citizen will be presumed by a jury to be traveling.

Some local law enforcement and prosecuting agencies have indicated that they will
continue to make arrests and file charges when they encounter citizens carrying handguns in
motor vehicles and will allow juries to determine whether citizens were traveling. DPS has no
authority to determine or to comment on how this law will be enforced by the various local law
enforcement and prosecuting agencies in the State of Texas.

 

[HKUSP45C]

Either way, traveling is a defense to prosecution.

Not since September. You are now presumed to be traveling if you are in all of 5 categories.

§46.15 (i)

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person 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 a handgun in plain view.

Now, in H-town the DA has stated openly he will continue to prosecute all cases brought before him. Regardless of the law. However the police would be unlawfully arresting you.

 

[Frog48]

You are automatically considered to be "traveling" as long as you're not engaged in anything beyond a Class C misdemeanor, in a car, legally own the firearm, and not a gangbanger.

That DPS press release is ridiculous. Yet another example of DPS having their head up their hindquarters, ignoring the LAW. Texas DPS continually irritates me... their attitude is that they'll just arrest everybody the least bit questionable, and just say "Whoops, sorry" after the fact.

 

[HKUSP45C]

That DPS press release is ridiculous. Yet another example of DPS having their head up their hindquarters, ignoring the LAW. Texas DPS continually irritates me... their attitude is that they'll just arrest everybody the least bit questionable, and just say "Whoops, sorry" after the fact.

Did you actually read it? I mean, the whole thing? Could you point out where the DPS is saying anything close to what your posts attributes to it?

 

[HankB]

A couple of issues back, the Texas State Rifle Association's magazine addressed the Harris County nonsense. They said that reports were that the Harris County LEOs would question you about where you were coming from, where you were going, etc., all in an attempt to get you to say something to make it look like you were not traveling.

The TSRA's advice was to point to the papers (Driver's License, insurance card, etc.) you'd already handed over and politely inform the officer that your attorney had advised you that ALL the cop needed to know was in those documents.

 

[FreedomCommando]

However the police would be unlawfully arresting you.

Sadly that's just not right. The penal code says that it is a DEFENSE to prosecution. That means that after your ride downtown in the back of a squad car, after your car gets towed, after you get booked, photographed and strip-searched, after you get bonded out of jail, after you hire a lawyer and appear at arraignment, you may put on a defense.

"Your Honor, my client was travelling, and here is the evidence..."



Don't be an idiot. If you plan on carrying in Texas, get a CHL.

 

[Frog48]

Did you actually read it? I mean, the whole thing? Could you point out where the DPS is saying anything close to what your posts attributes to it?

Yep, sure did. The DPS State Troopers have a bad habit of "net widening"... Arrest everybody in sight, and statistically you'll eventually catch someone doing something wrong.

Its our responsibility to be critical of our governments; federal, state, and local.

 

[philbo]

+100 Freedomcommando. The new law is a defense to prosecution, to be used AFTER you are arrested. When a method exists to CCW, use it and avoid this non-sense.

 

[HKUSP45C]

Sadly that's just not right. The penal code says that it is a DEFENSE to prosecution. That means that after your ride downtown in the back of a squad car, after your car gets towed, after you get booked, photographed and strip-searched, after you get bonded out of jail, after you hire a lawyer and appear at arraignment, you may put on a defense.

I just looked up the statute and back tracked through all relevant statutes. It turns out I was very, very wrong. I also looked around at a few sites and there is a lot of misinformation out there, some of which I was disseminating.

It IS ONLY a defense to prosecution. Not a protection from arrest. Thank you for pointing that out and proving me wrong. Hopefully it will set someone else straight as well.

Don't be an idiot. If you plan on carrying in Texas, get a CHL.

Listen close guys and gals, he's giving you pearls here.

 

[Art Eatman]

Grant48, go back and re-read the DPS press release. It's quite accurate as to what it says. And consider the final paragraph in light of the Harris County DA's statements.

Art

 

[MechAg94]

Also, what I was told was that you do not want to drink alcohol when carrying with a CHL. I am not sure what they will do to you, but it might bump penalties up pretty good.

 

[Frog48]

It IS ONLY a defense to prosecution. Not a protection from arrest.

Wrong. You are confusing "defense to prosecution" with "nonapplicability of law". Although they sound similar, they are not the entirely the same. Go back and read Texas Penal Code Title 10, Chapter 46 as a whole, not just excerpts.

You're correct that "defense to prosecution" is where the law is properly applied, but justification is introduced after the fact.

But nonapplicability of law IS a protection from arrest, as the law does not apply. If an arrest is made and/or charges filed, the law has been improperly applied from the get-go.

 

[Deavis]

Get a gun rack and a shotgun or an AR-15 to go on it. Then you don't have to worry about it at all. Otherwise, get a CHL, that way you can carry it legally when you get out of your car.

For the time it takes, I'd much rather get a CHL than go to court and hope that the DA can't prove I wasn't "travelling" to a judge and jury.

 

[GEM]

If you can get a CHL and be done with it. I'm sick of people who only want to carry in the car. Duh - is that the only place you might need a gun.

As far as the AR on a rack:

1. Some cities like San Antonio have local laws on no loaded long arms in the car. Does that conflict with the state - yes - but like Harris county - you take the ride and can sue later.

2. I know from some police research that if you are stopped with an open AR vs. a ducky-wucky shotgun or obvious hunting rifle, the police officers opine that they are less likely to cut you a break and think you are a bad guy.

 

[JohnKSa]

The DAs in Tarrant County, Travis County and Harris County have all issued written statements to the effect that they will continue to prosecute unlicensed handgun posession in vehicles as they did before the law passed.

My understanding is that the new law only shifts the burden of proof from the citizen to the state. Under the old laws, a citizen had to prove that he was travelling, under the new law, the state has to prove that he is not.

From a written statement by one of the legislators who penned the law.

The new law does NOT define travelling.
The new law is not a universal CHL while you're in your car.​

BTW, a lot of those COPS shows are pretty old.

 

[LAK]

While the new law does not literally "define travelling", it does establish the presumption that "[anyone] in a private motor vehicle" is travelling.

§46.15 (i)
(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is:
(1) in a private motor vehicle

Note that it states "a person is presumed" and "in a private motor vehicle".

So it is to be assumed that a person is travelling unless there is evidence to the contrary. About the only possible evidence to the contrary would be that the person is out of the vehicle concerned. Every english dictionary defines travelling as going from point a to b; sometimes adding by car, train, boat, ship, plane etc. If you write a traffic accident report, it usually reads "Vehicle 1 was travelling west along .... " etc - regardless of whether the vehicle was going a half mile to the grocery store or on the way from Texas to Ohio.

It does not even place the requirement of being the driver; "in a motor vehicle". That would apply to every person in the vehicle.

Yep, I did mention that this COPS episode might be an old re-run - I don't watch much TV.

----------------------------------------------------

http://ussliberty.org
http://ssunitedstates.org

 

[JohnKSa]

So it is to be assumed that a person is travelling unless there is evidence to the contrary.

Correct. If the state thinks that it has evidence to the contrary and can prove its case (that you are not travelling) they can go ahead and prosecute. At least 3 DAs have stated their intent to do so.

About the only possible evidence to the contrary would be that the person is out of the vehicle concerned. Every english dictionary defines travelling...

Before the passage of this law, TX law already said that if you were travelling, you couldn't be convicted. If it were as simple as you imply, there would have been no need for the legislature to try to make the law less restrictive.

Here is a comment from an explanatory letter about the law. The letter is written by Terry Keel, one of the TX legislators who penned the law.

The legislature has likewise never defined “traveling” because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.
...
In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances.
...
The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. 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.​

The new law does NOT define travelling. The new law does NOT change the legality of carrying a handgun in the car without a CHL. It ONLY moves the burden of proof from the citizen to the state. Practically speaking, it will make it MUCH more difficult to prosecute these cases, but that does NOT mean that you're home free as pointed out below.

Can you still be prosecuted for having a handgun in the car in TX without a CHL? Clearly Mr. Keel thinks so--so does NRA/ILA legal counsel.

HB 823 Bill Analysis Provided by the staff at NRA-ILA
Texas H.B. 823 prevents the police from routinely arresting a law-abiding person who is transporting a concealed pistol in his motor vehicle. This is accomplished by clothing a law-abiding person with the presumption of being a traveler. The traveler presumption may be rebutted by the state by presenting proof beyond a reasonable doubt.​

Before the law you could carry a handgun in the car if you were travelling.

After the law you can carry a handgun in the car if you are travelling.

Before the law you had to prove that you were travelling or you would be convicted.

After the law the STATE has to presume that you were travelling and therefore must PROVE that you were not if they hope to convict.

 

[GEM]

If you can legally get the CHL in TX, get it and stop screwing around.

The only legit reason is being broke. If you don't agree philosophically, then you shouldn't give a crap about the traveling nonsense either.

Only carrying the gun in the car is inane anyway - do zombies drive? What happens when you get out of the car and there are zombies?

 

[Rotorflyr]

Only carrying the gun in the car is inane anyway - do zombies drive? What happens when you get out of the car and there are zombies?

I've seen plenty of Zombies driving, they are usually drinking coffe and talking on the cell phone at the same time (on occasion, you'll even see one reading the paper)

 

[ezypikns]

Just get a CHL.

Unless you have unlimited funds and time, it's probably smarter to avoid arrest legally than going around trying to prove a point of law.

 

[Glockamolie]

"1. Some cities like San Antonio have local laws on no loaded long arms in the car. Does that conflict with the state - yes - but like Harris county - you take the ride and can sue later."

I keep hearing that, and I keep asking someone to show me the money, as it were. The weapons section of the San Antonio City Ordinances is in Chapter 21, Article VI. Someone please show me, and I'll promise to take the shotgun out of my trunk when going to San Antonio.

http://www.municode.com/resources/gateway.asp?pid=11508&sid=43