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9/19/2017 7:27:10 PM
Posted: 1/29/2006 8:45:52 AM EDT
[Last Edit: 1/29/2006 8:55:04 AM EDT by CQToverVmatch]
XXXXX,
I am not with the media but I am looking for a statement on Toby's stand on the recently passed HB 823 and the continued prosecution of citizens that are exempted by this law. I am resident of Dallas, consider myself a Republican, and will be voting in the up coming election. In Harris County, a fellow Republican DA has openly stated that he will not honor the new bill and hence has become the target for removal from office by the NRA and TSRA.

Has Toby taken a stand on this issues? If not, I hope that he would consider HS 823 to be law and respect the decisions of the Texas Legislature.

Thank you,
CQToverVmatch


Lets see what kind of reply I get.
Link Posted: 1/29/2006 8:51:32 AM EDT

Mr. XXXX -- Since it is Sunday, I will respond back to you either
tomorrow or Tuesday. Thank you for your interest in Toby Shook. XXXXX





first response

Link Posted: 1/29/2006 3:49:38 PM EDT
Originally Posted By CQToverVmatch:

Mr. XXXX -- Since it is Sunday, I will respond back to you either
tomorrow or Tuesday. Thank you for your interest in Toby Shook. XXXXX





Translation: "Shit. Nobody asked us that one before. Better do some digging before I answer this one."


CMOS
Link Posted: 1/30/2006 6:21:59 PM EDT
some douments from their team:

HB 823 - Intent.doc



HB 823 - STATEMENT OF LEGISLATIVE INTENT

It is well established in Texas that a person who is traveling has a right to

possess a handgun for personal protection. The practical problem with this right

has historically been that courts have disagreed on the definition of "traveling".

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.

HB 823 shores up the right of citizens to carry a concealed handgun while

traveling by further underscoring the inapplicability of the offense of unlawfully

carrying a weapon ("UCW") (Penal Code §46.02) to persons under particular

factual circumstances. It does this by providing 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.

In plain terms, a law-abiding person should not fear arrest if they are

transporting a concealed pistol in a motor vehicle. 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. Under those circumstances the citizen should be allowed to proceed

on their way.

HB 823 represents the first time a presumption has been crafted in favor of a

defendant in the modern penal code of Texas. 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. By enacting this unprecedented evidentiary standard

under §2.05 in conjunction with the substantive terms of the presumption in

§46.15, the legislation is intended to have the practical effect of preventing in the

first place the arrest of citizens who meet the newly specified prerequisites of

being a presumed traveler.

It should be noted that the very real problem of citizens having to prove their

innocence after arrest by the assertion of their right to carry a firearm while

traveling was the reason the 75th Legislature replaced the "defense" of traveling

with a classification of the statute of UCW as instead entirely "inapplicable" to a

4908 79th LEGISLATURE — REGULAR SESSION

traveler. This change was well-intentioned but did not have the intended effect of

protecting honest citizens from potential arrest because the term "traveling" was

still left to individual police or judicial officials to define on a case-by-case basis.

As a consequence, law-abiding citizens who availed themselves of their right to

have a handgun while traveling continued to face arrest and often later prevailed

only in a court of law after proving that they were indeed traveling. As originally

filed, HBi823 proposed to classify traveling as an "exception" (per Penal Code

§2.02) to prosecution for UCW. However, after further consideration, the

Criminal Jurisprudence Committee concluded that such an approach would be as

ineffective as the 1997 change for the very same reasons.

In passing HB 823, this legislature, like all previous legislatures, has

declined to define traveling, avoiding limiting the term to a narrow set of

particular circumstances. For example, to require someone to have an overnight

stay in a journey in order to be classified as a traveler would be unfair to persons

traveling great distances in one day. Likewise, a requirement that a citizen be

"crossing county lines" may make no sense, such as in areas of Texas where

travelers drive hundreds of miles without leaving a single county. Moreover, the

ability of police to elicit such evidence and consistently apply its subjective terms

on the street in a traffic stop has not proven practical, at all. HBi823 instead

focuses on creating a specific set of relevant, objective facts that are capable of

being determined on the spot by law officers.

There are several additional important points that should be made in regard

to the enactment of HBi823 and its interface with current law.

HBi823 does not give "everyone the right to carry a gun in a car". State and

federal laws applicable to firearms must be noted in conjunction with the new

statute’ s terms, particularly the limitation of the presumption to persons who are

"not otherwise prohibited by law from possessing a firearm." For example,

persons subject to an active protective order are not covered by the presumption,

nor are persons with any felony conviction or even some misdemeanor

convictions for offenses, e.g., family violence. The presumption is likewise

inapplicable to persons associated with a criminal street gang, even if they have

no conviction for any offense. These as well as all other existing limitations on

firearm ownership and/or possession make the new statute inapplicable to persons

covered by such prohibitions.

Furthermore, as stated in the statute, the presumption will not apply to

persons who are otherwise engaged in any criminal conduct. This would include

persons who are driving while intoxicated, driving recklessly, committing

criminal mischief, or committing any other criminal offense outside that of a

minor traffic infraction.

The presumption also does not apply where the gun is openly displayed.

This was added by the Senate in response to concerns that citizens would

otherwise possibly inadvertently have a weapon visible in a fast food or bank

drive thru, etcetera, and alarm others. (Note, however, that the requirement that

the gun be concealed is pertinent only to the issue of whether the defendant is

eligible to receive a presumption instruction per the new terms of §2.05. It is not a

new element required of a person who is traveling within the context of §46.15).

The enactment of HBi823 was the culmination of study, committee hearings

and debate by the House Committee on Criminal Jurisprudence. The new law is

intended to assist law enforcement in doing its job while at the same time

Friday, May 27, 2005 HOUSE JOURNAL — 79th Day 4909

protecting law-abiding citizens from the threat of arrest for merely exercising

their right to arm themselves while traveling——a right to which they are already

entitled.

Terry Keel, Chair

Criminal Jurisprudence Committee



HB 823 - Enrolled Version.pdf


H.B.ANo.A823
AN ACT
relating to the applicability of the offense of unlawful carrying
of weapons to certain persons and to the consequence of certain
presumptions in the prosecution of a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 46.15, Penal Code, is amended by adding
Subsection (i) to read as follows:
(i)AAFor purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1)AAin a private motor vehicle;
(2)AAnot otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3)AAnot otherwise prohibited by law from possessing a
firearm;
(4)AAnot a member of a criminal street gang, as defined
by Section 71.01; and
(5)AAnot carrying a handgun in plain view.
SECTIONA2.AASection 2.05, Penal Code, is amended to read as
follows:
Sec.A2.05.AAPRESUMPTION.
(a)
Except
as
provided
by
­Subsection (b), when [When] this code or another penal law
establishes a presumption with respect to any fact, it has the
following consequences:

Page 2
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A)AAthat the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B)AAthat if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C)AAthat even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
(b)AAWhen this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
H.B.ANo.A823
2
Page 3
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A)AAthe presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B)AAif
the
state
failsto
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;
(C)AAeven though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
SECTIONA3.AAThe changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect at the time the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTIONA4.AAThis Act takes effect September 1, 2005.
H.B.ANo.A823
3
Page 4
______________________________
______________________________
AAAAPresident of the Senate
Speaker of the HouseAAAAAA
I certify that H.B. No. 823 was passed by the House on April
20, 2005, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 823 on May 27, 2005, by a non-record
vote.
______________________________
Chief Clerk of the HouseAAA
I certify that H.B. No. 823 was passed by the Senate, with
amendments, on May 24, 2005, by the following vote:AAYeas 29, Nays
2.
______________________________
Secretary of the SenateAAA
APPROVED: __________________
AAAAAAAAAAAAAAAAADateAAAAAAA
AAAAAAAAA __________________
AAAAAAAAAAAAAAAGovernorAAAAAAA
H.B.ANo.A823
4



HB 823 - Bill Analysis.pdf


SRC-BEC, JSP C.S.H.B. 823 79(R)
Page 1 of 1
BILL ANALYSIS
Senate Research Center
C.S.H.B. 823
79R17655 KCR-D
By: Keel (Hinojosa)
Criminal Justice
5/20/2005
Committee Report (Substituted)
AUTHOR'S/SPONSOR'S STATEMENT OF INTENT
Under Section 46.15 (Nonapplicability), Penal Code, Section 46.02 (Unlawful Carrying
Weapons), Penal Code does not apply to a person who is "traveling." The word "traveling" has
ben given various appellate interpretations, but it has never been defined in statute.
C.S.H.B. 823 amends Section 46.15, Penal Code, to clarify that a person is presumed to be
"traveling" if the person is in a private motor vehicle, is not otherwise engaged in criminal
activity, is not prohibited by law from possessing a firearm, and is not a member of a criminal
street gang.
This bill further amends Section 2.05 (Presumption), Penal Code, to provide proper evidentiary
instruction of the presumption.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a state officer,
institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 46.15, Penal Code, by adding Subsection (i) to provide that for
purposes of Subsection (b)(3), a person is presumed to be traveling if the person is engaged in
certain activities.
SECTION 2. Amends Section 2.05, Penal Code, as follows:
(a) Makes a conforming change.
(b) Provides that when this code or another penal law establishes a presumption in favor
of the defendant with respect to any fact, it has certain consequences.
SECTION 3. Makes application of this Act prospective.
SECTION 4. Effective date: September 1, 2005.



Link Posted: 2/3/2006 6:31:08 AM EDT
sent this again :



Mrs. XXXXXX,
I have not heard back from you was wondering if you had a response to my question.

Thanx in advance,
CQT



received this, this morning


Mr CQT,

My name is Bill XXXXX and I am helping Mr. Shook on his campaign. Toby
fully supports HB 823 and he believes that every law-abiding citizen should
have the right to defend themselves against criminals.

By way of background, I am a fellow assistant district attorney who is
volunteering for the campaign in my free time. I am a TSRA member and a NRA
Life Member. Toby and I have been shooting together, and I would never
support any candidate for any office that did not support the Second
Amendment.

Sorry it took so long to get back with you. Please let me know if you have
any further questions.




leaves it open to interpretation.
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