So can law-abiding Texans carry a loaded firearm in their personal vehicles now, or not?
With the passage of HB 823 (Keel/Hinojosa) into law September 1, legislators and the National Rifle Association believed they'd finally resolved a longstanding dispute that for years turned thousands of legal gun owners into law enforcement targets. Texas law lets drivers carry a weapon in their car when they're "traveling," but the definition of traveling has never been legally settled.
So the Legislature passed HB 823 creating a "presumption" that the driver is "traveling" unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant committed a Class B misdemeanor or worse, or (e) the defendant is a gang-banger. (Conflict alert: I testified at the hearings in both chambers in favor of the bill on behalf of ACLU of Texas.)
The new law seemed pretty straight forward. If the gun is legal, you're not a crook, you're driving your own car, and if the gun is stowed (i.e., you're not driving around with it laying on the passenger seat like an idiot), then you can carry a gun in your car when you're driving. At least, that's what legislators thought they'd passed.
Nearly immediately, though, prosecutors and police began to say they wouldn't enforce the new law, or, rather, would continue to enforce the old one. Harris County DA Chuck Rosenthal led the charge, announcing instructions to officers to continue to make arrests for UCW (unlawfully carrying a weapon) just like they always had.
On the District Attorney Association's public user forums, a discussion occurred that gives a good idea of what the arguments will ultimately look like when this plays out in court. Several prosecutors are looking for a way to agree with Mr. Rosenthal. A Department of Public Safety lawyer announced she thought the old court cases on "traveling" were still applicable, while another from Columbus announced:
I am giving the officers in my county the following instructions:That's simply ignoring the new law. I wonder what prosecutors are telling officers in other jurisdictions? Fortunately, cooler heads emerged in the DA's discussion forum. After that interpretation was challenged, an attorney with Texas Parks and Wildlife (which oversees Texas game wardens) weighed in with this analysis:
A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.
As I read it, the state must be able to prove beyond a reasonable doubt at every UCW trial one of the following: Defendant is a gang member, was breaking a law, was prohibited from possessing a gun, was not in a private vehicle, or was carrying a handgun in plain view. The presumption cannot be rebutted by showing the [driver] was not really "traveling." What matters is whether the state can prove (or disprove, as applicable) one of those 5 facts beyond a reasonable doubt. I don't see any other way and have advised TPWD officers accordingly. ...That's how legislators understood the bill when it was debated and passed. I predict, at the end of the day, it's how the courts will interpret it (though I'm no attorney and could certainly be wrong). Bill author Terry Keel issued a statement on the controversy, siding with the Parks and Wildlife intepretation of the statute:
On the surface the new law is worded as a presumption, but in substance at least one of the 5 facts must be treated as an element of the offense which the state must prove at trial (or disprove, depending on which one of the 5 is chosen). ...
For what it's worth, I have no reason to believe this new law will increase crime. It may even have a deterrent effect as criminals realize that more honest citizens will be armed in more situations.
“HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang,” said the bill’s primary author, Rep. Terry Keel, R-Austin.I'll bet that makes Chuck Rosenthal apoplectic. Ironically, now that Keel's running for a seat on the state Court of Criminal Appeals, there's a good chance he'll actually be a sitting justice by the time any case reaches the highest levels. Having the bill author seated on the bench might give justices special insight, one could imagine, into the specifics of "legislative intent."
“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said.
“There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling” where the citizen is cloaked with the presumption per the terms of the new statute,” he said.
UPDATE: Of Arms and the Law wonders if police officers who make arrests without discovering evidence voiding the presumption might open themselves up to wrongful arrest suits. Injustice Anywhere thinks Chuck Rosenthal's on a power trip. The Waco Herald-Tribune (9-16) covered the controversy. There's a good discussion at Texas Concealed Handgun of San Antonio.