TX TRAVEL LAW?????

[LAK]

Bartholomew Roberts

That is what HB 1815 defines, it is not yet law though. HB 823 that was passed in 2005 to create the presumption did not define travelling. HB823 is the current law unless one of the very recent gun bills to be passed this session changed that.

§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

The word "presumed" in legal terms means "to assume as true" - contrary evidence aside. Dictionaries already define the word travelling and have done so since the word entered our language. Playing semantics is fine, but the 2005 law explicitly states "in a motor vehicle".

It really can not get much simpler than that. Rather than continuously playing legislative games, and writing "yet another law" the legislature ought to bring to heel prosecutors, peace officers and other public servants who try and play these games and legal perversions at the expense of everyone involved.

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[bill larry]

The way I have understood it, anyone legally able to possess a handgun may keep a loaded handgun in their vehicle while traveling.

Now, as living proof, I have been pulled over three times with guns in the car, the last time was a week ago while driving to San Antonio. Late at night (like 1 am).

I had six guns in my truck, 4 long guns and two revolvers. The revolvers were both loaded and in a bag between my console and the dash. One of the long guns was loaded (SKS). I was foolishly speeding and got pulled over by DPS between Austin and San Antonio. The nice officer spotted the SKS which was the only firearm in plain view and uncased (my bad). He then asked of he could search the vehicle, to which I said "no". He then told me he had probable cause to search anyway, and did so. I let the cat out of the bag about all the guns, which got scrutinzed. It took a while, but this guy figured I was on the level, and eventually just wrote me my ticket.

This was the most action Ive gotten from the cops about guns in my car, and other then the fact I was initially very pissed about having my car searched after refusing (since its legal to carry a loaded long gun in the car, was there probable cause?) I felt okay about the whole deal (since I was speeding).

 

[Bartholomew Roberts]

The word "presumed" in legal terms means "to assume as true" - contrary evidence aside.

No, it does not. Presumptions (a legal term) are always rebuttable - meaning you don't ignore contrary evidence. All presumption does is shift the burden. Normally, to assert a defense of travelling, the defendant would have to convince the jury that he met the travelling definition. With this law, that burden is now on the prosecutor; but if the prosecutor can meet the burden, he can still convict.

Dictionaries already define the word travelling and have done so since the word entered our language.

Quoting a dictionary isn't going to get you very far in a Texas court when there is already extensive caselaw on defining the word.

Rather than continuously playing legislative games, and writing "yet another law" the legislature ought to bring to heel prosecutors, peace officers and other public servants who try and play these games and legal perversions at the expense of everyone involved.

The law was intentionally written the way it was in order to give DAs latitude. Say you find a car with four young adult males from 18-21 parked in front of the local diner at 2am. They all have gang tattoos. All of them have misdemeanor convictions. They have multiple handguns in the car. All of them are local neighborhood guys and one of them fits the description of a guy involved in several late night business robberies.

Under the Texas law proposed in HB1815, they are travelling. Under the current Texas law, they are presumed to be travelling; but if the prosecutor can obtain evidence that they are not (Where you guys going to tonight? You live around here?), then he may still charge them with unlawful carry of a weapon.

The problem is that certain DAs have decided to treat everyone they encounter with a handgun as a criminal who needs to be prosecuted. Instead of using their discretion on when to challenge the travelling presumption, they attempt to apply it to every person. This is totally legal though; because the law gave them that discretion to begin with. The only way the legislature can "bring to heel" these public servants is to rewrite the law. Otherwise it is up to the people who elect those public servants to put people in those positions who can be trusted with such discretion.

 

[LAK]

Refers to a Black's law dictionary - and examine some cases;

" .... More specifically, a presumption is a rule of law that under certain circumstances a fact is assumed to be true for the purpose of judicial action. "

Ellison v. Lang Transportation Co. (1938) 12 C2d 355

Of course contrary evidence is not going to be ignored. If for example a person is observed entering a vehicle, or found to be sitting in a vehicle in a parking garage that does not belong to them, and it transpires that they just deciding to get in and "take a nap" - and they were carrying a concealed handgun - such evidence would indicate that they were not travelling.

However, you get in your car, or one you have permission to use, and are driving on a public road, you are presumed to be, and are indeed are travelling - in the context of the statute.

The caselaw you refer to is the arbitrary and undefined mess that the new law was intended to clarify. To wit; ".... in a motor vehicle".

In much the same way as the law that Perry just signed presuming that persons are acting in self defense if they use a firearm, if they believe that they are about to be robbed, raped, etc, providing the rest of the statute is observed.

The problem is that certain DAs have decided to treat everyone they encounter with a handgun as a criminal who needs to be prosecuted. Instead of using their discretion on when to challenge the travelling presumption, they attempt to apply it to every person. This is totally legal though; because the law gave them that discretion to begin with. The only way the legislature can "bring to heel" these public servants is to rewrite the law. Otherwise it is up to the people who elect those public servants to put people in those positions who can be trusted with such discretion.

I disagree. Law, and legal authority is based on many things. One of the principles that is common in law is the obligation t do what is "reasonable and prudent" given specific circumstances, conditions etc.

Thus, any person, upon being confronted or otherwise being placed in particular circumstances are expected to exercize reason and prudence. It is not optional, and applies equally to public officials, appointed or elected. Besides, some of these people have blatantly stated their intent to run a personal agenda. These amount to criminal injustices and can not be excused. It is the responsibilities of the legislatures, both at state and federal level to, to address this type of thing. Otherwise they can simply play dumb and prosecute persons for just about anything - regardless of which way a statute is worded.

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[Bartholomew Roberts]

However, you get in your car, or one you have permission to use, and are driving on a public road, you are presumed to be, and are indeed are travelling - in the context of the statute.

Yes, we agree that you are presumed to be travelling and that presumptions can be rebutted if there is contrary evidence. Where we disagree is that you assume that merely being in a motor vehicle is travelling, it is not. Travelling has a specific legal definition in Texas (you'll find it in the case I linked to earlier). That definition was established by caselaw and the legislature has done nothing to change that definition.

"Thus, a defendant who travels a short distance, capable of being traversed in a short period of time, will not meet the traveling defense. See, Williams v. State, 74 Tex.Crim. 639, 169 S.W. 1154 (Tex.Cr.App.1914) (Defendant who carried his weapon on a twenty*six mile journey was not traveling.)"

You have already acknowledged that a presumption may be challenged in court. As you can plainly see by reading the statute you quoted earlier, there is nothing in there that changes the above case law, so this is still the definition of travelling. You are presumed to be travelling and the prosecutor has the burden of proving you are not; but you can still be arrested and convicted if there is sufficient evidence to convince a jury beyond a reasonable doubt that you do not meet the above definition. Clear enough?

The caselaw you refer to is the arbitrary and undefined mess that the new law was intended to clarify. To wit; ".... in a motor vehicle".

We agree that the legislature intended to clarify this mess; but they did a piss poor job of it by creating a presumption of travelling instead of simply defining travelling in statute. The legal result of their actions is that instead of assuming that good citizens are travelling and letting them go about their business, anti-gun prosecutors are instructing officers on how to gather evidence to rebut the travelling presumption and instructing them to make arrests and let the jury sort it out.

From a legal perspective, the prosecutors are ignoring the spirit of the law; but they are still following the letter of the law.

 

[Frog48]

Late at night (like 1 am).... He then asked of he could search the vehicle, to which I said "no". He then told me he had probable cause to search anyway, and did so.

If he honestly had probably cause to begin with, he would not have asked for your consent to search. He would have ordered you out of the vehicle, and searched without asking. LEO's dont extend courtesies when they have legitimate probable cause.

If I were you, I'd be filing a complaint with TX DPS. Speeding is not probable cause to search a vehicle, nor are long arms in plain view. Sounds like the trooper was on a fishing expedition for DWI's.

I'm sure that at the moment you were relieved that he let you go without making a big deal over the handguns, but that does not negate the fact that your 4A rights were ignored.

 

[LAK]

Where we disagree is that you assume that merely being in a motor vehicle is travelling, it is not.

No; we may have no disagreement there. When I use the words "in a motor vehicle" I did and do so in the context of the statute. This has been covered in at least one previous thread.

Previous caselaw was established in the absence of the new statute, and the presumption that one is travelling if they are "in a motor vehicle". It is the sole, but explicit circumstance in the statute. It does not say "in a boat", "in a helicopter", "on a bicycle", "on rollerskates". All likewise means of travel, but excluded from the statute. Thus "in a motor vehicle" is the sole circumstance where Joe Citizen is considered to be travelling in the context of the statute.

Where we might disagree is in the need to have a CHL in order to not risk running afoul of certain public officials who have a personal agenda. On that point I stand firm - as long as you carry within the context of the statute - in a motor vehicle - you have no need of any permission, recurring taxation or other burdens associated with a CHL in Texas. And peace officers and prosecutors who attempt to play dumb or attempt other legal perversions to make life difficult for people in this regard need to face criminal charges themselves of false arrest, false imprisonment and malicious prosecution.

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[Bartholomew Roberts]

Previous caselaw was established in the absence of the new statute, and the presumption that one is travelling if they are "in a motor vehicle".

LAK, the "in a motor vehicle" language is irrelevant because it doesn't change the legal definition of travelling, it only creates the presumption that you were travelling. Remember, presumptions are rebuttable. What "travelling" means is still defined by caselaw, not statute. So the fact that you are presumed to be travelling because you have a handgun in a motor vehicle, does not change the fact that you can be charged if the prosecutor can establish that you do not meet the definition established by case law for travelling.

The key point in my response to you that I feel you are not addressing in your responses is that the statute doesn't change the legal definition of travelling.

Where we might disagree is in the need to have a CHL in order to not risk running afoul of certain public officials who have a personal agenda. On that point I stand firm - as long as you carry within the context of the statute - in a motor vehicle - you have no need of any permission, recurring taxation or other burdens associated with a CHL in Texas.

Well you are flat out wrong on both the practical and legal level and that advice will be problematic for people in Tarrant and Harris counties at a minimum. TSRA has already documented the intention of prosecutors to arrest people for Unlawful Carrying of a Weapon if they have a loaded handgun in the car and no CHL. You can read it in detail in the link TexasRifleman provided. I've seen the instructions to officers explaining how to conduct a stop so that evidence can be gathered to support those charges. A CHL will make all of that a non-issue. If you don't have a CHL and are carrying a loaded handgun on a trip to the corner store, you had better be real careful about how and whether you answer those questions.

 

[Matt King]

It is my understanding that in Texas, "Traveling" is defined as going from one county to another. I am not 100% positive about this though. Please correct me if I am wrong.

 

[BullfrogKen]

LAK, the issue you assert is a matter of legal opinion. Courts every single day engage in the business of rendering opinions on whether or not the circumstances presented before them meet the definitions of a crime. And that is exactly all they are, opinions. When the US Supreme Court has a 5-4 ruling on a case, that means 5 judges had one opinion, and 4 had another. Or even several others. Dissenting opinions express the legal thinking behind the judges on a matter, and those opinions are often cited in future related cases.

The definition of traveling isn't confined to a textbook. No legal definition is. Those opinions eventually form case law, and the case law often provides the definition. Bart has shown where case law sets the standard pretty clearly, and the new law does not redefine it.

You can hold the opinion it does. And you are welcome to act as a test case to assert that the new law, which seems to qualify traveling must occur in a motor vehicle to meet the definition, actually should be construed to serve as the only condition one must meet to be covered under the statute.

 

[Bartholomew Roberts]

It is my understanding that in Texas, "Traveling" is defined as going from one county to another. I am not 100% positive about this though. Please correct me if I am wrong.

Check out the decision linked earlier in this thread. Generally, your best bet is to cross county lines and have an overnight stay somewhere in order to meet the definition of "travelling" discussed in case law.

 

[C96]

As an example of how it goes in Texas these days, the case of Kieth Patton vs: Houston PD should be looked at.

This is how it's done in Texas.

http://www.nytimes.com/2007/04/05/us/05guns.html?ref=us

allan

 

[CliffH]

Since we're moving to TX next month (if the sale of this house goes as planned), I've got to say that I'm sure going to miss AZ's gun laws & enforcement.

Leaving the shooting range (an old quarry in the Nat. Forest) the other day, I remembered I needed some DVD-R disks. Left the loaded rifle on the front seat of the truck, locked the doors, and walked into the local store with a 6" Stainless Steel .357 revolver OWB at 4:00 position, with no cover garment - just a tucked in T-shirt - you couldn't miss the revolver unless you were blind. Had a chat with a gent in line about copying tape to disk & some pleasant back & forth with the clerk. No one even blinked.

In TX, I won't be able to do that any of that (except for already having an AZ CCW), might even get in trouble if the wind blows my cover garment open. And know I have to make sure that I have my AZ CCW card with me when driving?

I'd heard that TX is real gun friendly - sure starting to sound as if they're not one of the most friendly states we could have picked to settle down in. And it sounds like I'll be joining a few more organizations to help change these kind of laws. Oh well, guess I needed something to do..... Rather spend the time on the range & fixing up the new place, but ya gotta do what ya gotta do.

And, it looks like I've got to buy a semi-auto carry gun too. Don't want to pay all the money & spend all the time required for my TX CHL to end up being restricted to revolver carry only.

Maybe it's time for all Texans (and transplants) to get serious about changing these laws - and get them done! Here're a couple I've already joined:

http://www.txcdl.org/index.html?1158230811622

http://www.tsra.com/?p=page&id=1

 

[LAK]

Bartholomew Roberts

LAK, the "in a motor vehicle" language is irrelevant because it doesn't change the legal definition of travelling

I see. So just why do you think the writer of, and those who signed, this bill inserted the words "is presumed to be travelling" and "while in a private motor vehicle" in affirmative, joint, inseparable, context?

Although many representatives, in many state, and the federal, legislatures, have been accused of doing some silly things - and all joking aside - they are not generally in the habit of inserting meaningless terms and phrases connected and smack in the middle of a legislative punchline.

I do not need a DA or other legal change agent to tell me what the word "is" in the english language actually means. Please yourself.

Bullfrogken,

I am hearing for the last several days how the SCOTUS has "ruled" that the EPA can and must do this that and the other over a certain harmless natural gas. The stuff we exhale, and plants inhale. That the highest ranking officer in the Executive can not tell his subordinate department to do or not do this or that. Etc.

So much for "legal opinion".

And back to the word "is" - in english.

It boils down to this; irrational extrapolations aside, the exact wording of this statute is specifically and exclusively aimed at travelling "in a private motor vehicle". The only challenge to this can be contrary evidence in the specific circumstances of a specific case - not "legal opinion".

It is fortunate that it is the authority and duty of a jury in the state of Texas to decide whether "evidence to the contrary" is in fact evidence to the contrary - and not deliberate over the meaning of the word "is". And the basic premise will not change - in a private motor vehicle.

If I ever have the misfortune to tangle with some legal innovator over this statute I think my first subpoenas for witnesses will be to the drafter and signers of the bill. Perhaps at that time they will still be able to remember what "is" means as well.

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[Bartholomew Roberts]

I see. So just why do you think the writer of, and those who signed, this bill inserted the words "is presumed to be travelling" and "while in a private motor vehicle" in affirmative, joint, inseparable, context?

LAK, you do remember that a presumption is rebuttable right? Just because a presumption (which is a distinct legal term) is defined in statute doesn't mean that you automatically assume the presumption is true regardless of the evidence. It also doesn't mean that an officer cannot investigate or gather evidence. Travelling has a legal definition in Texas (albeit a cloudy one). The presumption doesn't change that definition.

Although many representatives, in many state, and the federal, legislatures, have been accused of doing some silly things - and all joking aside - they are not generally in the habit of inserting meaningless terms and phrases connected and smack in the middle of a legislative punchline.

The change that was made isn't meaningless. It shifts the burden from the person with a handgun in a motor vehicle to the prosecutor and that is a big difference. In most locales, that would be enough to discourage prosecution in a wide variety of cases if the prosecutor were not already strongly anti-gun.

I do not need a DA or other legal change agent to tell me what the word "is" in the english language actually means. Please yourself.

I'm just explaining the legal consequences of the law as written. If you don't like those consequences, then we need to get behind HB1815 which changes the definition of travelling so that it is crystal clear that a handgun in a motor vehicle is legal in Texas.

 

[LAK]

Anything is rebuttable. Any statement of fact, physical evidence, even the law itself, is rebuttable in as much as they can all in particular circumstances be challenged in any one particular case with contrary evidence or by other means.

When a specific is presumed "to be so" - it is assumed as true, in law. I received the precise same answer on the matter from an attorney this afternoon.

The fact that it can be challenged with contrary evidence is superfluous. Anything can be challenged with contrary evidence - that is a general principle of the legal process. In the absence of such evidence, the burden of which you correctly state is on the prosecution, it is as good as matter of fact.

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[Art Eatman]

CliffH, you worry unduly. An accidental exposure of one's concealed handgun is not a violation. If one has a CHL, even the Harris County DA and his instructions are not a problem. A routine traffic stop for a minor violation can often lead to a bull session about preferences in handguns.

Texas, the historical deal on "travelling" morphed from horseback days when miles from home were important as to defining travel, to the era of automobiles. It transitioned to, "Out of one's home county, overnight". This is court precedent, not legislated law. The deal was that you could carry a loaded handgun in your car, but were to travel from beginning to destination by the most direct route. When you arrived, you were supposed to empty the gun and lock it away--house or trunk of car--but not go erranding around town with it loaded and accessible.

Art

 

[CliffH]

CliffH, you worry unduly. An accidental exposure of one's concealed handgun is not a violation.

That's good to know, thanks Art.

Sounds as if your best bet when carrying in a car is to have a CHL, no matter what the law was/is intended to be. A hassle for sure, but better than an arrest and/or confiscation of your firearm.

 

[C96]

Cliff ~ You may wish to follow that link that I posted above.

Mr. Patton spent a night in jail, lost a $300 handgun, paid $1,500 in attorney fees plus $268 for the towing of his vehicle.

allan

 

[CliffH]

Moments later, he was handcuffed and on his way to jail, facing a charge of unlicensed carrying of a weapon.

Sounds like he did not have a CHL. Since my AZ permit will still be good in TX, and I plan to get a TX CHL, I'll just make sure to have at least one of them with me at all times.