Wednesday, September 14, 2005

Texas' new carry law: What does it mean?

UPDATE (May 30, 2007): New legislation clarified this law to make clear who can carry a gun in their car.

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:

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.
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:
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. ...

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.

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:
“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.

“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.

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."

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.

45 comments:

JD Allen said...

Grits, it doesn't matter if you are not guilty or guilty. If you are arrested, are taken to jail and have to stand trial you are still being punished.

Like a sheriff's deputy friend of mine told me, "You might beat the time but you won't beat the ride."

Unfortunately, that is the attitude we citizens have to deal with. The police and prosecutors make the law from the viewpoint of the people, regardless of what the Constitution or legislators have written.

I am tired of it, myself, and if there were anywhere better to go, I would have been there by now. If it were possible to change things, seems like there would have been a bit of progress by now. But we are still doing witch trials, by dunking; if you drown, you were not guilty.

123txpublicdefender123 said...

Chuck Rosenthal and his ilk simply don't care what the law says as written. They are, in essence, advising police officers in their jurisdiction to arrest people on charges on which they KNOW they will never be able to obtain a conviction. That is an abuse of prosecutorial power, plain and simple. The only way to stop him will be if local judges refuse to sign probable cause warrants on cases where the affidavit does not rebut at least one of the five factors making up the presumption.

Anonymous said...

Well all I can say is that even though I understand the intent of the law...

That understanding and intent is lost at the Law Enforcement level...

So the solution is this...

If you really feel adament about carrying a firearm for lawful purposes...

Get your Texas CHL licence (Concealed Handgun Licence) and this issue becomes a moot point...

Later,
Steve
("stevie_d_64")

Travis Fell said...

Interesting post. Thanks for sending me the link.

"I testified at the hearings in both chambers in favor of the bill"

I'm glad to see that you and the ACLU of Texas are taking steps to help safeguard a woman's right to self-defense (AKA gun rights).

Jed said...

As much as I'd love the Parks and Wildlife interpretation to be correct, the sloppiness of the legislature has left room for a good argument against that interpretation.

One of the basic canons of statutory interpretation is that every word is intended and has a meaning. By the use of "is presumed...", the legislature has created a presumption, but it's not clear how the presumption can be overcome.

The TPWD intrepretation reads the statute to require disproving one of the five presumption facts in order to overcome the presumption. But that would render the "is presumed" as a nullity, changing the statute from a presumption of traveling to a definition of traveling (think of it as "is presumed to be traveling" v. "is traveling." This violates the canon noted above.

If the court were to buy this, the prosecution would merely have to prove non-traveling under the old case law, which isn't very difficult to do.

I would hope that the courts would look to the legislative intent to clean up the legislature's mess, but I'd hate to be the guinea pig stuck with the legal bills (and the ride).

o_malfeasance_of_justice@hotmail.com said...

Litigation, arbitration and judicial determination have clouded the minds of judiciary whom would otherwise (or 'should' otherwise) lend to legal good intentions as the 'framers'so set forth.

I am not a legal scholor but have learned enough to run for a legislative seat...

The courts tend to overlook the simplicity of the peoples 'rights' and complicate the matters as best said by one of the many well written 'posters' herein...
(Jed)"By the use of "is presumed...", the legislature has created a presumption, but it's not clear how the presumption can be overcome."

"The TPWD intrepretation reads the statute to require disproving one of the five presumption facts in order to overcome the presumption. But that would render the ""is presumed"" as a nullity, changing the statute from a presumption of traveling to a definition of traveling (think of it as "is presumed to be traveling" v. "is traveling.""
I feel that Arguement falls on who presents the best arguement giving partiality to the higher courts pre-determinate interpretations-not to our Constitutional Law and to that which was written in OUR 'Bill of Rights'.

Sadly as it seems-'presumed: presumption; presumably; and presumptiveness' are all used in the determining factors within the context of a meaning in which they are presented and accepted, not given. (thus for sake of arguement), yet-not by the manner in which they were written to have but insignificant meaning to what they simply had meant.....(past-tense?).....

To be or Not to Be.....The right to Be free....??

Scott Chaffin said...

The courts tend to overlook the simplicity of the peoples 'rights' and complicate the matters

Well, that's the problem, innit? RKBA has devolved into a mish-mash of egghead intellectualisms about presumptions becoming nullities and the definition of travelling. A simple 'people' would argue that the repeal of the offending law is better than 99 new ones that seek to refine it to a point that approaches the intention of the 2nd Amendment.

[insert standard rant about lawyers making laws that they will get paid to defend/prosecute when they're finished piddling around in the lege.]

Anonymous said...

To the poster who recommended the CHL as the answer. He/she's obviously not worried about having their name on a list with the government. The CHL grants rights in exchange for privacy given up. The fundamental right to protect one's self shouldn't require any registration.

The Harris County DA obviously has too much funding, since he has completed reaching the pinnacle of protecting his constituents (Not!) and now has the time and money to attack those constituents.

I'll handle the first one in my county pro bono, if our DA acts as obnoxiously.

Islandjack

B.D. Burke said...

Some still think that county lines define traveling, when in fact they are not mentioned. Then , what about those who travel on motorcycles? The "collar" depends on the police officer that makes the stop. B. D. Burke

Anonymous said...

Jeepers. All this fuss over "SHALL NOT BE INFRINGED" and how our governing bodies have tried to circumvent such a plainly worded prohibition.

Anonymous said...

What good is HB 823 if we don't know what it means? Law abiding citizens should be able to carry protection in their cars, so the authors of this bill (Keel/Hinojosa) should clear up the meaning of Traveling. There is apparently no understanding of the law by the public or the law enforcers.

Jr Graham said...

I think it is long overdue, for years now criminals and cops were the only ones able to carry their weapons in their vehicle w/o violating the law or spending alot of time and/or money for a permit. I have been a street cop, and still am in law enforcement. I think we as law abiding citizens have the right to carry a handgun to protect ourselves, and if we get into a scrape with this weapon then we will have to justify it's use.

Anonymous said...

To my thinking, the whole mess is the Legistature's doing for having used the entire "defense against proscecution" model for the legislation.
(I want to remember that Ohio's SC voided the nearly identical legal structure under Ohio law as unconsitutional for not presuming the innocence of an areestee.)

In any event, the flaw in the structure still remains. The officer on duty cannot make a finding of fact or law. He only has two choices: Arrest or Not Arrest. It's then down to the County Attorney in the county in whihc one is arrested to decide whether to go forward with prosecution.

So, the "reasonable man" cannot make anything other than a guess, to know if he is in reasonable compliance with the law. Just the thing that voided the Ohio law. Until that is fixed, the present definition will be no better than the one before the last with its convolution of traveling from one's own county to another county by the most direct route practible . . .

Which still places the onus of lawfull arrest upon the on-scene officer.

Anonymous said...

what a goofball state texas is, that they think that they have domain over any individuals at all. this is a free country, we are allowed to carry firearms as stated in the bill of rights. no exceptions. we are the new militia of america. we need to protect our country. our government certainly is not.

Anonymous said...

To Anonymous^

There are much harsher states for gun control if you're talking about government controlling your right to bear arms.

Anonymous said...

Comming from a former law enforcement officer, my oppinion is that is anyone feels the need or urge to carry a firearm, so be it. Licensed, not licensed, criminal (they are going to carry one anyway if they want), carry if however you wish, concealed, not concealed. It doesn't matter to me. I will speak much more politely to the gentleman with a handgun on his hip than the gentleman who does not. Gun laws only restrict law abiding citizens and registration only empowers a power hungry government and politicians with an agenda. Felons obvoiusly are not law abiding citizens by definition, so what is the use in putting that restriction besides giving leverage to future prosecution. I don't have much issue with that, but penalizing individuals who have not been offenders are being disallowed to make rational decisions for themselves. I wonder when the day will come that this country goes through another civil war over this issue and the governments attempt to disarm it's citizens. "An armed man is a citizen, an unarmed man is a subject."

Anonymous said...

I personally couldn't care less about the laws regarding this subject say. I don't need joe law to tell me what is right and wrong, when they wouldn't know real justice if it slapped them in the face. The fact is that so called law enforcement "officials" DA's, and judges will twist any law into something that enables them to get an easy conviction against a good citizen.

An honest citizen is the easiest target for these corrupt hacks. God-forbid that actual criminals are apprehended, but of course that would require actually performing the duties that law enforcement is supposed to be performing. If I feel that I need to arm myself, I'll do so.

One day, the honest citizens of this corrupt country are going to take a stand against those who manipulate laws, line their pockets with bribe money, and elevate themselves above the very laws they are sworn to uphold.

Anonymous said...

I believe that the main question here is one of relevance. I am not even involved in the legal system of the state and, yet, I can predict how each case will turn out.

According to the law, a driver is only eligible to be charged with a UCW if the driver is presumably not travelling, as determined by one of the five factors. The problem lies here: if a John Doe was pulled over for speeding three mph over, in a school/construction free zone, and any of the five conditions disproves him of being a traveller, an attorney should (to the best of my knowledge) have no problem getting the case dismissed, due to the fact that none of these five conditions have any effect, whatsoever, on whether or not a person is considered to be "travelling" -- at least not to my understanding.

Personally, I would like to see state legislation be a great deal more precise. I would like to see a legislation, like most other 'privelege legislations', if you will, that lists a number of qualification aspects one must pertain to in order to receive the benefit of being lawfully able to __________________. (carry a loaded, legal weapon in a vehicle, for example).

Plus, the precedent of "no duty to retreat" has been understood and defended in this country since the early 19th century...if I feel like there is a possiblity that I could be done physical, maybe even lethal, harm in my vehicle, it should not only be allowed, but supported by the law -- and the agents that enforce it.

-Cody W.-

TheBoss said...

Hello Grits:
Go Boy! I am here to help you out from you liberlization problems!

TheBoss said...

Waaaaaaaaa, Waaaaaaaaa, Waaaaaaaaaaa. I am so sick of Anti-American liberalization. No wars, no guns, can't discipline our children and everyone wondering why the world is going to Hell in a handbasket. The only thing I see in common with those opposed to "legalization of our constitution right to 'Keep and bear arms'" is the word annonomous!! I stand for all 28 amendments there to and it sickens me that people in this day and age (with all the crimes being committed on innocent citizens) never have the intestinal-fortitude to stand up for what is right. I suggest before anyone here attacks this ole boy, read George Orwells books Animal Farm and 1984. If you have have never read these books, shut up!

TheBoss said...

To me, it is abhorent that we have border protrol agents in jail awaiting The King of Big Brothers' pardon to free them from the confinement of our justice system run amuck for doing the job they were hired to do because liberal thinking people don't have the spine to stand behind our law enforcement agents/officers! In this country, they too expect them to bail them out of loans that they made in bad faith, while honest working people have to suffer for the sake of, shall we say the politically correct words "undocumented workers" instead of calling a spade a spade, damn criminals! Under the guise of jobs that we won't accept, companies hire illegal aliens--the correct term- because of their illegallity wages become digressive so that billionaires can pad thier wallets with a few more coins!

TheBoss said...

HELLO:
I am talking to you "Annonomous." Cat got your tongue? No snappy comebacks? Huuum! This is getting boring fast!

TheBoss said...

Ok,guess I will have to respond to 123. . . Let me get pulled over, as mine will be concealed, and I will file a counterclaim in a Federal Court for malicious prosecution! Do not tell me that you can't fight city hall; that is a misnomer.

Anonymous said...

DA's don't have to prove anything in court. The vast majority of cases are plea bargained, so all they do is charge you with a bunch of crap they know they can't prove, and then offer to drop some charges if you plea guilty to others.

Anonymous said...

As a Peace Officer and a CHL holder, I have no problem with the new law. I would not arrest any one as long as the 5 basic rules were followed. Still, if your worried about getting arrested just get your CHL and be done! It's just smart! Tim

Anonymous said...

Tim,

You are a police officer. I would be interested to hear both your take and an attorney's take on this interpretation of this new law:

Under the new law I as a citizen am under no direct or implied obligation to inform any law enforcement agent that I am carrying a firearm in my vehicle. Is that correct or incorrect? If you or any other police officer never know I have a firearm in my possession then the whole argument is moot. Unless of course you have some argument for probable cause to search my vehicle.

As for the CHL I am in agreement with a few other comments. The government has enough information on me it does not need more and certainly does not need to know I am armed.

As an officer does it bother you if a citizen does not disclose the presence of a firearm?

-Sam

PICKERREED said...

I WAS SO PROUD WHEN TEXAS ENACTED THE CHL LAW. IT MADE A FINE LINE BETWEEN BLACK AND WHITE. NOW A NEW LAW WITH MUDDY WATER FOR THOSE
WITHOUT A CHL. IF I AM IN A CAR
WITH AN UNARMED PERSON AND I AM
ARMED, I DO NOT HAVE TO IDENTIFY
OR ANYTHING UNLESS I AM ASKED TO.
I THINK WITHOUT DOUBT ANY OFFICER
THESE DAYS WILL ASK IS THERE A GUN
IN THE CAR. SHOULD HE TELL THAT I
HAVE A GUN IF HE KNOWS????

Al said...

So, what's the latest on this law? I found online sources that state that the gun can be carried in our vehicles without a permit. Is that the case? What have you all heard lately? I'll eventually get my permit, but the classes are full until April, and then I'll have to wait about 3 more months to get my permit. That's way too long! Too many crazies out there! Any info would be appreciated. -Al

Josh said...

Hey Al,

The latest on this would simply be that the new gun law allows you to carry in your personal vehicle without a CHL, regardless of the county lines or the previous definition of travelling (provided you meet the 5 requirements)...

If you are planning on carrying with you in the streets, then it's probably safe to say you should absolutely get your CHL.

As for myself, I only plan on keeping mine with me in my car and would prefer to not have to inform the government that I'm armed if I didn't have to and thus why I will not be getting my CHL.
-Josh

brutal.conversions@yahoo.com said...

So far vermont is the closest to freedom to own and carry weapons. So far in Texas only cops, lawyers and criminals can have guns, becuase you have to be a fucking lawyer to get and keep your license. There shouldn't be any license. If you are not in police custody, you should be able to pay cash for and walk out with a pistol, any day of the week. No sunday laws, gun a month laws, misdemeanor restrictions (speeding 20 over is a misdemeanor!) etc

want our rights back said...

rosenthal, sounds like ADL. They don't want any white people with guns.

fuck zionism said...

Scott chaffin is genius. The second amendment didnt' create rights to own guns, it was to defend the public from losing them to anti-civilian legislation


Well, that's the problem, innit? RKBA has devolved into a mish-mash of egghead intellectualisms about presumptions becoming nullities and the definition of travelling. A simple 'people' would argue that the repeal of the offending law is better than 99 new ones that seek to refine it to a point that approaches the intention of the 2nd Amendment.

GSTERLINGW said...

Now Chcuk the "alleged criminal himself" is out of office. So now we say to Chuck.......go f*** yourself and let the law abiding citizens start protecting themselves, their property and their families.

CASE CLOSED MR. EX DA. Apologize to your wife and stay off the DRUGS.

Anonymous said...

I have had my CHL almost from the beginning here in Texas. I feel with this new law that all people are allowed to carry without a CHL really makes me feel sick. What's the point in me paying for a CHL license and going through the classes and requalification if I could carry it in my car without paying all that out. I don't think this new law is fair to those of us who are paying and possess a CHL license. What's the point of having it now?

Anonymous said...

to the last disgruntled poster...

whaaaaaa!!! don't you have better things to complain about... geeeez

e h mackey said...

i was convicted of a felony when i was 17 and i am now 53 my wife has never been in any trouble at all yet if i am riding in the car with her and her gun i will go to jail
i paid my debt to society yet the government says i must continue to pay unless i hire a lawyer to get pardoned and then beg the a.t.f. to allow me to have my inalienable right to bear arms given back to me . i can not even get a license to provide meat for my family by hunting for food with a gun .yet i have never been in trouble other than that one stupid time when i was a teenager. it is time we the people made them the politicians stop with the paranoid delusions that this stops criminals this only makes a man that changed resentful of a lifetime of unforgiveness !

Law Abiding Texas Citizen said...

Dear e h mackey,

It's morons like you that cause all of us to have to deal with such stupid laws and the need for permits.

What ever stupid crime you did is your own fault, now shut up and live with the consequences.

e h mackey said...

who ever posted the comment calling me a moron and to deal with it is right , and because i told the court appointed lawyer who did the crime i was accused of and he went to the police and told them, so that they made sure the guilty would walk and i would get the conviction ,and the whole bill of rights and constitution was changed and alterted to make it hard on the moron who called me a moron to "Bear Arms" must be a wise old viagra moron that never stood up for the rights of the people and demanded they not be altered , I on the other hand learned from my incarceration and have never been in trouble of anykind since (36yrs.). Yet Sam Walton , Gov. Bill Clements ,President Bush sr. and many others have wrote me about my help to the needy and children and stance on government issues !
I do not understand how a man pays his debt to society , yet he can never be forgiven and is always considered owing forever ,but thanks to the moron writer i understand better it is easy to sit and condemn than meet and forgive and understanding is not relevant to his view of life !
I pray the lord gives you total understanding and it opens your eyes wide to the real picture.
e.h. Mackey.

Anonymous said...

hey law abiding citizen ,
Did you hear about the horse thieve who escape from jail and became a marshall and movie consultant and hung out with a known gambler and killer ?
try looking up wyatt earp! umm
e h Mackey

Anonymous said...

Hello fellow gun owners, I have a very dumb question? In the state of Texas if you are legal to carry a handgun and have a clean background can you carry a pistol locked and loaded in your personal automobile without the worry of being arrestested? I would like to know as soon as possible due to living in a bad neighborhood.I fear for my spouse and myself because there is too many crazys and crackheads out there for me to feel comfortable and neither my wife or myself have our CHL but we own guns. Can someone please let me know if I am legal to do so? Thanks for all of your time and good advice.

Anonymous said...

hey little known letter of the law fact . A flare gun is considered a emergency help device not a firearm as to the letter of the law you can carry in your vehicle and you buy them without a background check as matter of fact no check , just put in basket and go . plenty good for up close .
i only hate saying anything because they will outlaw them or make them a pain to get .

Anonymous said...

I was not asking about a flair gun why would i want to just burn someone if my life is in danger idiot only someone that wants to piss someone off would do something retarded as that i take it you are probably not able buy a gun legally only a jackass would want to try to catch everything around them on fire if you miss there would be problems what if you where around gas pumps at a store or something you damb moron if i feel it is critical to pop a cap in someone i dont want to just burn them or blow up everything around me how dumb can you get

Anonymous said...

wow what a moron mentality were you raised up being called a dumb moron ? you really seem to have a complex about it . i guess it makes more sense to shoot a gun around a gas pump oh i guess a .44 , .45, ak-47, as they surely could not ignite a gas pump , yet they might kill innocent by-standers , but the real fact is popin a cap in them is not near as effective as lighting them up with a seven second burn at a 12 gauge cal. , but hey you moronic anti-people rights , government issue piece of moron leavings kiss off !survival and legal right to defend is the priority . NOW , again for those of you who can not afford or have trouble getting a gun just go anywhere and for 16.oo dollars get you a perfectly effective flare gun . NO checks no hassles . always remember if it saved your life everything else is irrelevant . Except to the MORON man what a nut-job .

Anonymous said...

The Question was about carrying a loaded firearm in a car not about a flare gun if i just wanted to piss someone off and burn them i would i wanted to know about my legal rights without a chl. Not starting a fire you jackass that could cause an explosion with a flare you are dealing with phospherous i know a little about chemistry and they could actually probably sue you over that if they found out who you where I have a clean record i just want to know about possessing a handgun without a chl if they dont live to tell about you are protected as long as your life is in ammediate danger I know done shot someone for breaking into my home in texas just want to know the stipulation on a handgun locked and loaded in a vehicle in my state without holding a chl

Anonymous said...

fine you can put your gun in a locked trunk and be safe , while traveling you can carry in the car . a gun is not the only solution to protecting oneself and if you are not properly trained in gun awarness and saftey you probly will get sued anyway , to point a gun at someone is considered assualt with deadly intent .
you worry about crack dealers and users try moving , call law enforcement have them get rid of the crackers . A flare gun can also signal distress or need for help . I think in a life threatening scenario being sued would be about last on my list of worrys . burning someone and pissing them off ? you really have not been in a life threating situation have you . There is no time it all happens quickly and in a matter of seconds it is over . I have been and you might just be thankful for a flare gun in the glove box , and you may not have time to get to it .
it is probly better that you get a big stick or bat you really do not sound like a person who really understands the responsibility involved with a gun of any kind !