User Panel
We are not talking about whether or not we will do this-- we are talking about how the law is written. Has nothing to do with being a shall-issue state. Saying, "you might beat the wrap...but you wont beat the ride," as Cirbria has stated, indicates that cops may arrest you for anything they wish, whether right or wrong, and its up to you to fight it in court or have the charges dropped by the DA, even though the law is clearly stated in the penal code. There are many cases where someone is falsely arrested because the cop didn't know or completely understand the laws. |
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So you are willing to spend thousand of dollars to get you're ass out of jail. Losing your 2nd Ammendment rights. Possibly lose your job. And risk jail time? I'm not. I agree the law is unconstitutional. However, I can work within the law to keep and exercise my 2nd Ammendment right. Which also affords me to vote. But that is your choice SuperAlpha, I sincerely hope you do not get in a situation where your stance gets tested. If you do, I hope you have ETH's number and have a lot of time off on the books at your work. And some money saved up. Cause you may have to take your 2nd Ammendment defense all the way to the Supreme Court and force them to finally decide wether or not the 2nd Ammendment is an individual right. Man I wish you luck. |
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This is my point: If this is true, and its the common thinking of the legal system, the TX legislature SHOULD ammend this portion of the TX Penal Code to update each point to reference CHLs, or to define the term "Traveling". I don't see why they cannot do this, since they have clearly modified other portions of this same chapter. |
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Since the "peaceable travel" is a defence to prosecution, the less defined the law the better it is for the defendant. I would not want to be the defence attorney defending against a law that is black and white.
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I was thinking that a couple hours ago... hehe New title: How does one meet the DFW group?/TX Penal Code & "Traveling" |
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Well, I did some research and there is no bright line test for determining what is "traveling," not in the statutes or in case law. This has been an on-going problem since the 1800's. In 1898, the Court of Criminal Appeals suggested the legislature define the term as it makes the law abiguous and therefore technically unconstitutional, but they have yet to act. The question has always been left to the trier of facts, be it the judge or jury, which ever the case. The Attorney General opinions on the subject generally point to George v. State, 90 Tex. Cr. R. 179, 234 S.W. 87, which state the travel must include an overnight stay. Other cases tend to indicate the travel must cross a county line in addition to the overnight requirement, but even these requirements have not been held absolute as I found one case in which a railroad workers conviction was overturned because the court found that his daily train ride of 150 miles was traveling. Courts have consistently held that minor deviations in travel, like stopping to eat or going to a doctor, do not negate the traveling defense but that conducting other non-related business enroute does. Also, once the destination point has been reached, traveling ceases. Here are a couple of interesting cases. The first being one of the most recent cases I could find (1997), the latter the 1898 case I mentioned:
Continued on next post.... |
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... Here's the 1898 case
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OMG! You ROCK!!!! That is awesome! How did you find all this? Through the Lexis/Nexis network? damn... So... this just proves my point: ITS NEVER BEEN DEFINED, EVER, as the "cops" will say.... And basically, as we've always said: IT IS UNCONSTITUTIONAL! (and the 1898 Court of Criminal Appeals agreed!) (damn that was long ago!) This just also proves, that even the TX Penal Code back in 1995, did not define this term, as some claimed earlier... Anyway, what can we do to get the Legislature to define this in the Penal code? BTW: What do you do for a living???? |
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§ 46.05. Prohibited Weapons
(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells: (1) an explosive weapon; (2) a machine gun; (3) a short-barrel firearm; (4) a firearm silencer; (5) a switchblade knife; (6) knuckles; (7) armor-piercing ammunition; (8) a chemical dispensing device; or (9) a zip gun. (b) It is a defense to prosecution under this section that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility. (c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended. (d) It is an affirmative defense to prosecution under this section that the actor's conduct: (1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or (2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b). (e) An offense under this section is a felony of the third degree unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor. So... if you are transporting a machine gun, silencer, SBR, (AOW?), etc., it is actually a defense to prosecution if you are a legal owner of one of these devices. So this probably means you cannot easily carry these types of weapons, since you can definately wind up in court depending on the circumstances, since its actually listed as a defense to prosecution...? Is that right? |
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I started out at the Attorney General's site and found the cases they cited, chiefly George v. State but from there I went to LexisNexis.
Yes, "traveling" has never been defined. Even the courts vary widely on their interpretation. I was amazed.
The entire unlawful carry statute seems unconstitutional to me due to the vagueness of the traveling provision. It just hasn't been tested to that point. Most of the sentences I noticed were very minor, hardly worth carrying to the US Supreme Court.
Yup, and that explains why everybody seems to have a different conception of the term.
I wrote my congressman today! I told him about this vagueness and suggested the legislature finally act on the more than a century old suggestion by the Court of Criminal Appeals.
I'm semi-retired and now a full-time student at UT Tyler majoring in criminal justice with a minor in pre-law. I hope to earn a law degree and become an advocate for gun rights. |
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The unlawful carrying statute applies only to handguns, illegal knives, and clubs.
However, there are a number of places where the weapons listed in § 46.05 are prohibited, such as schools, court houses, etc.. |
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Here are a few more cases I found interesting:
Shelton v. State, 27 Tex. Ct. App. 443; 11 S.W. 457: A Fugitive from Justice, while fleeing the country, is not "a person traveling," within the exception of the statute forbidding the carrying of a pistol. Witt v. State, 89 Tex. Crim. 368, 231 S.W. 395: The trial judge gave the following instruction to the jury: "A traveler is a person who is making a journey to a distant point from his place of residence, or place of starting. But upon reaching his destination he then ceases to be a traveler while staying at his journey's end until he is ready to resume his journey or return." The Court of Criminal Apeals held that: "We are of the opinion that the charge was over-restrictive of appellant's right to have the jury determine, under all the facts before it, whether his journey had ceased or been deflected from in the sense that it would deprive him of the benefit of the law exempting a traveler from the prohibition of the statute." Irvin v. State, 51 Tex. Crim. 52, 100 S.W. 779: The Court of Criminal Apeals held that: "We do not believe that a man who is otherwise a traveler is required to go in a hurry to his point of destination, and it would be a difficult matter to determine what delay would on the trip cut him off from the defense of being a traveler while he was still in pursuit of his journey. Of course, if he went about some business or pursuit disconnected with his journey, he would cease to be a traveler, but some delay incident to his journey would not deprive him of his defense of traveler. For the errors pointed out, the judgment is reversed and the cause remanded." |
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I think you totally missed the point here.
If you submit to the permit, then you have lost your rights and are now licensing them.
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I got your point, but I think you missed mine. 2nd Ammendment has been eroded. How do you propose to stop it by carrying an unlicensed firearm and going to jail. Does that make sense to you? I can't very well have right if I am a felon right? So, being that the truest form has been eroded or mis-construed. How do you propose we get it back. By this obeying the law? In doing so you risk being put in jail, and losing all rights. Then we are back to you 2nd Ammendment defense. Will you be the one to take it to the Supreme Court to force em to decide wether the 2nd is an individual right? So how do you solve this problem SuperAlpha? At this poiont it is not about wether the law is un constitutional. The law is the law. Now the fight is to repeal these laws. That will not be done by disobeying it. That will be done by working within it. |
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You know everyone can scream 2nd Ammmedment this and 2nd Amm. that. Until you actually get involve by writing your rep/senator/congressmen and voting. YOu are just one of those people that is helping make these laws come to fruition.
You do vote don't ya SuperAlpha? Secondly, Having a CHL in good standing adds to the statictics that concealed carry is good for the community. It shows that gun owners are responsible. It has also shown that crime goes down once a state adopts such law. Albeit unconstitutional, in its truest sense, it does help gun owners. So if you are so pro-gun, why are you not helping? |
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Having a CHL also shows that gunowners will pay to exercise their rights.
And about teh part where if youa re a felon, you will lose your 2A rights. I can think of many examples where felons don't give a shit about the laws........ |
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So, you have not answered my question. How do you propose to change this? By commiting a felony and recommending others to do the same?
And yes felons do not care about laws, that is why they are felons. So are you saying you are a felon? |
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I wholeheartedly agree. |
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I know that my profile says the peoples republic of california, but I'm from N.R.H., Tx and am only out here because of military obligations. I have a CHL from Texas and a DL. Anyways, you are still allowed to carry a handgun if you are travelling across 3 or more county lines, I've read it in the statutes and also, if you go to www.texas.gov and go to licenses and choose concealed handguns and then look at the faq, you'll see this:
Q: Can I still carry a handgun without a permit while traveling? A: Yes. The concealed handgun law augments existing state weapons laws but does not replace them. The offense of unlawfully carrying a weapon does not apply if you are traveling. Just my two cents worth. Ps. I only live like 2 1/2 miles from Johnphin, in Tx |
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SO energizer and SuperAlpha, are you both carrying everytime we meet for dinner?
I know a few always are? You talk the talk, but do you walk the walk? I know where you both stand on the issue, and I appreciate your position. But do you carry on your person all the time? Do you carry at work? TXL |
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Usually have at least a long gun and usually a pistol nearby.
Rarely carry on person, but would like to get a S&W SC360PD (light .357 mag with hi-viz green and dark color) model for concealment. I never felt comfortable carrying the Glock 26 or the Colt defender concealed. |
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