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10/20/2017 1:01:18 AM
9/22/2017 12:11:25 AM
Posted: 8/29/2005 5:50:23 AM EDT
I took my CHL class over the weekend (Houston) and the instructor said that the bill only changes the burden of proof from us to the officers. After researching it further, it looks like he is completely wrong. I pulled these conditions from the bill:

a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

It appears that traveling in this bill means is going anywhere in his/her car/truck. Am I reading this correctly. Obviously this won't effect me once I get my CHL, but I do have friends that don't want to get a CHL and wanted some clarification on the wording.

Any lawyers out there?



Link Posted: 8/29/2005 6:51:34 AM EDT
The popo has to prove that you are a felon in a gang robbing the local 7-11.
Link Posted: 8/29/2005 7:45:22 AM EDT
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.
Link Posted: 8/29/2005 9:56:58 AM EDT
Thanks Jolly_Roger.
Link Posted: 8/29/2005 10:28:05 AM EDT

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



you're wrong guy.
Link Posted: 8/29/2005 1:06:58 PM EDT

Originally Posted By distributor_of_pain:

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



you're wrong guy.



Given you haven't read the law (Gun Racks Illegal in Texas), what makes you think he is wrong?
Link Posted: 8/29/2005 1:17:42 PM EDT
[Last Edit: 8/29/2005 1:19:09 PM EDT by distributor_of_pain]

Originally Posted By RenegadeX:

Originally Posted By distributor_of_pain:

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



you're wrong guy.



Given you haven't read the law (Gun Racks Illegal in Texas), what makes you think he is wrong?



My question was regarding carrying a loaded weapon UNCONCEALED in your vehicle while traveling.

ETA: You ain't bustin nobody!
Link Posted: 8/29/2005 1:35:22 PM EDT

Originally Posted By distributor_of_pain:

Originally Posted By RenegadeX:

Originally Posted By distributor_of_pain:

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



you're wrong guy.



Given you haven't read the law (Gun Racks Illegal in Texas), what makes you think he is wrong?



My question was regarding carrying a loaded weapon UNCONCEALED in your vehicle while traveling.

ETA: You ain't bustin nobody!



Ok, OK. But what is your answer based on? I have seen a couple lf lawyers claim you can only refute points 1-5, not whether or not they were actually traveling. What say you?
Link Posted: 8/29/2005 1:42:37 PM EDT

Originally Posted By RenegadeX:

Originally Posted By distributor_of_pain:

Originally Posted By RenegadeX:

Originally Posted By distributor_of_pain:

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



you're wrong guy.



Given you haven't read the law (Gun Racks Illegal in Texas), what makes you think he is wrong?



My question was regarding carrying a loaded weapon UNCONCEALED in your vehicle while traveling.

ETA: You ain't bustin nobody!



Ok, OK. But what is your answer based on? I have seen a couple lf lawyers claim you can only refute points 1-5, not whether or not they were actually traveling. What say you?



Like every other law, it all boils down to interpretation.
Interpretation is what neutered your guns, and it also defines what was changed in the law, no matter how poorly it may have been worded.

Gov. Perry interpreted "traveling" to mean you can carry a firearm in your car without a CHL.
And that's all that matters.
Link Posted: 8/29/2005 3:36:20 PM EDT

Originally Posted By Jolly_Roger:
Note that the statute says a person is "presumed to be traveling if...". This does not change the definition of "traveling" which has been defined (poorly) by case law. Traveling has never meant commuting to and from work, going to the grocery store, etc. So even though you are "presumed" to be traveling, if the DA can prove you weren't, you would still be guilt of UCW (if you don't have your CHL).

For instance, if you are stopped and the officer asks where you were going, your answer might prove that you were NOT "traveling". Your own statement is the proof necessary to rebut the presumption of "traveling". Or, if you claimed you were traveling, but your vehicle contained no luggage, maps, etc. those facts could be enough to overcome the presumption of traveling.

Bottom line, everyone who is eligible should get their CHL and avoid all the legal wrangling. The basic law of UCW in Texas has not changed. The only change is that now the DA must prove that your were NOT traveling; but that won't be difficult in most UCW cases.



That is not how a presumption works at all. If you meet the requirements of the presumption, you are traveling. Period

Sec. 2.05. PRESUMPTION. (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:
(1) if 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) if 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) that the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B) that 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) that 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) if 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) When 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) if 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) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) 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;
(C) even 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) if 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.
SECTION 3. The 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.
SECTION 4. This Act takes effect September 1, 2005.
Link Posted: 8/29/2005 5:05:20 PM EDT
I was wondering about this bill also. Even after reading the comments here and the bill itself, I'm still confused.

Can I, or can I not carry a gun in my car with my without a CHL? And, if I can does it have to be concealed or does it have to be in plain sight?

Any clarifications on this in laymans terms would be appreciated.
Link Posted: 8/29/2005 5:17:57 PM EDT

Originally Posted By LonghornAR15:
I was wondering about this bill also. Even after reading the comments here and the bill itself, I'm still confused.

Can I, or can I not carry a gun in my car with my without a CHL? And, if I can does it have to be concealed or does it have to be in plain sight?

Any clarifications on this in laymans terms would be appreciated.



Section 46.02 of the Texas Penal Code prohibits a person from carry on or about their person a handgun, illegal knife or club. Section 46.15 states that 46.02 does not apply to a person who is traveling.

Traveling has NEVER been defined by statute, until now.

Now (sept 1)
a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.


So if you meet those criteria you are presumed to be traveling.
Link Posted: 8/29/2005 6:03:54 PM EDT

Originally Posted By txinvestigator:

Originally Posted By LonghornAR15:
I was wondering about this bill also. Even after reading the comments here and the bill itself, I'm still confused.

Can I, or can I not carry a gun in my car with my without a CHL? And, if I can does it have to be concealed or does it have to be in plain sight?

Any clarifications on this in laymans terms would be appreciated.



Section 46.02 of the Texas Penal Code prohibits a person from carry on or about their person a handgun, illegal knife or club. Section 46.15 states that 46.02 does not apply to a person who is traveling.

Traveling has NEVER been defined by statute, until now.

Now (sept 1)
a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.


So if you meet those criteria you are presumed to be traveling.



Nice.......thank you very much for the clarification. The way you laid it out made it make a lot more sense to me. I appreciate it!!

Link Posted: 8/29/2005 7:08:43 PM EDT
I think we really agree except for one thing. I don't think this new statute defines "traveling". It only says if you meet the elements set forth, you are "presumed" to be traveling. As you pointed out, the Penal Code sets out the procedure for instructing the jury about, and proving or disproving a presumption.

Under this new statute, it looks as if the jury would be instructed (provided the defendant meets the elements) that they (the jurors) should presume that the defendant was traveling at the time of the offense UNLESS the prosecution proves beyond reasonable doubt that he was not traveling.

If the new statute defined traveling, it would say "a person is traveling if...." . A presumption can always be rebutted if there is enough evidence. If traveling were defined by the statute, there would be no need to submit the issue (or instruction about the presumption of traveling) to the jury.

These are interesting questions, which will ultimately be answered by the courts as cases get taken up on appeal. I wish the Legislature would have clearly defined "traveling" as they should have done years ago.
Link Posted: 8/29/2005 7:19:03 PM EDT
distibutor_of_pain, I didn't read the other thread so I don't know what your question was. I was responding to the question that was asked in this thread. I quite possibly could be wrong, but I'd like to hear why you think so.

FYI, Gov. Perry didn't say you could carry a gun in your car without a CHL. He only signed the bill which the Legislature passed, and IMHO, that is not what the bill says. Gov. Perry's opinion really doesn't matter at all - the opinions of the judges are what really matters. As you say, interpretation is everthing, and the judges interpret the law.

I'd like to hear from any LEOs what they have been told about this new law.
Link Posted: 8/29/2005 7:38:56 PM EDT
What the law does is to shift the burden of proof to the prosecutor. It probably isn't legal to take your gun in your car with you on the 10 minute ride to and from work every day (court precedent indicates this isn't travelling). However, unless you are dumb enough to make a statement about where you are going to a police officer who stops you, the state might have a hard time proving you aren't travelling (can they definitively prove that you weren't on your way to or from a distant destination?).


Link Posted: 8/30/2005 4:51:06 AM EDT
Jolly Roger is correct: this new law does not define "traveling." It merely establishes the "presumption of traveling," which is a totally different bird.

I don't know why the Legislature didn't make a clear definition of traveling.

It's my opinion that if you're stopped by an LEO and you don't have a CHL, when asked why you have a handgun in your car, you're best to answer literally, "I am traveling to/from so-and-so."

Also be ready to answer where you are traveling to or from. THEY have to prove you are not travelling so have a plausible answer to the question.

Until a law is written that clearly defines "traveling" - or - makes your vehicle an extension of your "home," best to get a CHL.

CMOS
Link Posted: 8/30/2005 8:05:30 AM EDT

It's my opinion that if you're stopped by an LEO and you don't have a CHL, when asked why you have a handgun in your car, you're best to answer literally, "I am traveling to/from so-and-so."

Also be ready to answer where you are traveling to or from. THEY have to prove you are not travelling so have a plausible answer to the question.



I disagree strongly. You DON'T want to answer the "why do you have a handgun" question at all (unless you are 100% sure that what you are doing constitutes one of the exceptions to the carry law). If you say "I'm travelling from my house to my friend's house", that might or might not really constitute travelling. A better approach would be to shut up, and let a prosecutor try to prove that you weren't travelling without giving him any story that he could break/twist.

Of course, refusing to answer questions will probably get you arrested for unlawful carry, but at least you'll beat it in court.
Link Posted: 8/30/2005 8:55:07 AM EDT
The Houston DA now says that the new law changes nothing, and that they will prosecute any unlicensed carry to the maximum extent of the law they can until some judge says no. Does anyone here know the Houston DA? They seem like a bunch of asshats from the article.

www.chron.com/cs/CDA/ssistory.mpl/metropolitan/3330553

Link Posted: 8/30/2005 9:30:03 AM EDT
happy,

I've met Chuck Rosenthal before. Seemed like a real nice guy - very old school. I'm shocked at his position.

BTW, in a few minutes I'm going to start another thread to request letters to him. I just got his email address.


CMOS
Link Posted: 8/30/2005 10:13:23 AM EDT
The more I think about this, the more problematic it seems. I can see why people think the new law defines "traveling", although I still think it doesn't.

If a judge were to rule that the presumption of traveling would apply UNLESS the DA could prove beyond reasonable doubt that at least one of the five criteria were not met (for example, the defendant was not in a private motor vehicle, was engaged in other criminal activity, carried a handgun in plain view, etc.), then the new statute in effect does define traveling, because the DA couldn't prove that you weren't traveling simply because you were going to the grocery store, because your destination is not one of the five criteria set out in the new statute.

That's about clear as mud, isn't it? I'll try again - a judge could rule that the only relevant evidence regarding "traveling" is evidence which tends to disprove one of the five elements giving rise to the presumption. In that event, any evidence about your destination or length of your trip would be irrelevant, because those are not any of the elements of the presumption. Therefore, that evidence should not be admitted, and the presumption of "traveling" would prevail, and the defendant should be acquitted.

Of course, in order to use the presumption of traveling, you must be on trial for UCW. This new statute probably won't prevent anyone from being arrested and charged, but it might result in their acquittal. Again, I would advise anyone who is eligible to get their CHL and not wind up being the "test case" on this new statute.

It will be interesting to see how the trial and appeals courts try to make sense of what the Legislature has done.
Link Posted: 8/30/2005 4:08:33 PM EDT

Originally Posted By pliftkl:
What the law does is to shift the burden of proof to the prosecutor. It probably isn't legal to take your gun in your car with you on the 10 minute ride to and from work every day (court precedent indicates this isn't travelling).




If you meet the 5 criteria, then you are PRESUMED to be traveling. Past case law is not relevant.

From the author of the law

TO: Media
FROM: Terry Keel, State Representative, Austin
RE: HB 823 by Keel, Effective 9/1/05
Clarifies Right to Carry Handgun in Vehicle While Traveling
DATE: August 30, 2005

PRESS RELEASE

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 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.

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.

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 evidentiary standard in conjunction with the presumption, 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 for a 1997 legislative change which replaced the “defense” of traveling with a classification of the statute of UCW as instead entirely “inapplicable” to a 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.

In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as 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. The new statute instead focuses on a defined 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 HB 823 and its interface with current law.

HB 823 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.

The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time 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.

For further information, contact State Representative Terry Keel, 512-463-0652.
Link Posted: 8/30/2005 5:43:44 PM EDT

Originally Posted By pliftkl:
What the law does is to shift the burden of proof to the prosecutor. It probably isn't legal to take your gun in your car with you on the 10 minute ride to and from work every day (court precedent indicates this isn't travelling). However, unless you are dumb enough to make a statement about where you are going to a police officer who stops you, the state might have a hard time proving you aren't travelling (can they definitively prove that you weren't on your way to or from a distant destination?).






Where does it state that "traveling" has to be a certain distance (and what distance) ie... down the street or 3 counties? It Does not state how long or short the travel is. Travel is Travel 1 block or 1000 miles

The new bill states presumed to be traveling (1) in a private motor vehicle. "Traveling" is defined by the statement itself. Defenation - Traveling (see 1-5)

Thats the way i read it. Inturpet what you want read what it states.

FireBlade
Link Posted: 8/30/2005 5:52:48 PM EDT

Originally Posted By happycynic:
The Houston DA now says that the new law changes nothing, and that they will prosecute any unlicensed carry to the maximum extent of the law they can until some judge says no. Does anyone here know the Houston DA? They seem like a bunch of asshats from the article.

www.chron.com/cs/CDA/ssistory.mpl/metropolitan/3330553




Did you also read the thers a guy in Houston that wants ppl to wear car helmets for saftey.

FireBlade
Link Posted: 8/30/2005 6:07:44 PM EDT

Originally Posted By FireBlade:
Where does it state that "traveling" has to be a certain distance (and what distance) ie... down the street or 3 counties? It Does not state how long or short the travel is. Travel is Travel 1 block or 1000 miles

The new bill states presumed to be traveling (1) in a private motor vehicle. "Traveling" is defined by the statement itself. Defenation - Traveling (see 1-5)

Thats the way i read it. Inturpet what you want read what it states.



A presumption is merely something that a prosecutor needs to overcome. When you go on trial, there is a presumption that you are innocent. The prosecutor will then try to overcome this presumption with evidence. The same thing will happen when you are arrested on the way back from the grocery store. The prosecutor will argue to the jury: "Do you consider going down the block to get milk a trip? Do you think that's travelling?" The prosecutor will then introduce case law to demonstrate that travelling has been historically defined as long trips, and that no court has ever agreed that going out for milk is travelling.

Carrying in your car is definitely still a bad idea without a CHL. If you do decide to carry in your car without a CHL and you are pulled over, don't give the police officer a story that a prosecutor will use to show that you aren't travelling. You have a better chance now of beating the charges, since the prosecutor will have the responsibility for overcoming the presumption, but "getting away with it" isn't quite the same as "it's legal to carry in your car".

Again, only my opinion here. I'm fairly sure that there will be some test cases for the new law within the first week of September. I'm very interested in seeing how they pan out.


Link Posted: 8/30/2005 7:02:05 PM EDT
please remember the addendum to the law is for presumption of travel, to undo all the prior "case law" bullshit - please also note that you can still apply the original common definition as your defense whether the gun is concealed ot not, you are on horse, bike, walking, etc - traveling means to go from one place to another (like across the street!) - that part is not taken out of the law!
Link Posted: 8/30/2005 8:42:08 PM EDT

Originally Posted By pliftkl:

Originally Posted By FireBlade:
Where does it state that "traveling" has to be a certain distance (and what distance) ie... down the street or 3 counties? It Does not state how long or short the travel is. Travel is Travel 1 block or 1000 miles

The new bill states presumed to be traveling (1) in a private motor vehicle. "Traveling" is defined by the statement itself. Defenation - Traveling (see 1-5)

Thats the way i read it. Inturpet what you want read what it states.



A presumption is merely something that a prosecutor needs to overcome. When you go on trial, there is a presumption that you are innocent. The prosecutor will then try to overcome this presumption with evidence. The same thing will happen when you are arrested on the way back from the grocery store. The prosecutor will argue to the jury: "Do you consider going down the block to get milk a trip? Do you think that's travelling?" The prosecutor will then introduce case law to demonstrate that travelling has been historically defined as long trips, and that no court has ever agreed that going out for milk is travelling.

Carrying in your car is definitely still a bad idea without a CHL. If you do decide to carry in your car without a CHL and you are pulled over, don't give the police officer a story that a prosecutor will use to show that you aren't travelling. You have a better chance now of beating the charges, since the prosecutor will have the responsibility for overcoming the presumption, but "getting away with it" isn't quite the same as "it's legal to carry in your car".

Again, only my opinion here. I'm fairly sure that there will be some test cases for the new law within the first week of September. I'm very interested in seeing how they pan out.





No, that is wrong. Read the presumption law

(b) When 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) if 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) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) 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;
(C) even 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) if 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.
SECTION 3. The 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.
SECTION 4. This Act takes effect September 1, 2005.


That is it. The 5 elements of the presumption are presented to the jury. The prosecution must prove, beyond a reasonable doubt, that one of the 5 elements does not exist.

There is no past case law to consider.

Link Posted: 8/31/2005 5:50:04 AM EDT
In short, there are two ways to interpret this poorly worded law.

The crafters may have intended it to nullify past case law on traveling and legalize the average citizen to carry a firearm in their vehicle no matter where they are going.

Yet, a strict interpretation of the wording (as Chuck Rosenthal's argument) clearly shows that it merely shifts the burdon to the prosecution to show that you were not traveling as defined by past case law.

Why in the world couldn't they just pass some nicely worded law, without the possibility for two interpretations? What a bunch of dopes!

This will definately have to be cleared up by the courts, at some poor guy's expense who thought he was now able to legally carry in his vehicle at all times.
Link Posted: 8/31/2005 5:52:34 AM EDT

Originally Posted By txinvestigator:
No, that is wrong. Read the presumption law

(b) When 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) if 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




I hope you're right. Unfortunately, it's going to be a judge who will make a decision about "the evidence as a whole", and that judge is going to look for a definition of traveling (which this law doesn't give). That definition is going to come from case law...
Link Posted: 8/31/2005 9:48:23 AM EDT
.
Link Posted: 8/31/2005 2:38:59 PM EDT

Originally Posted By logem:
In short, there are two ways to interpret this poorly worded law.

The crafters may have intended it to nullify past case law on traveling and legalize the average citizen to carry a firearm in their vehicle no matter where they are going.

Yet, a strict interpretation of the wording (as Chuck Rosenthal's argument) clearly shows that it merely shifts the burdon to the prosecution to show that you were not traveling as defined by past case law.




Nope, the persumption, if you read it AND the new definition of presumption, you will see that past case law means NOTHING. The burden is on the prosecution to show you did not meet the 5 stipulations of the presumption.
Link Posted: 8/31/2005 2:43:06 PM EDT

Originally Posted By pliftkl:

Originally Posted By txinvestigator:
No, that is wrong. Read the presumption law

(b) When 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) if 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




I hope you're right. Unfortunately, it's going to be a judge who will make a decision about "the evidence as a whole", and that judge is going to look for a definition of traveling (which this law doesn't give). That definition is going to come from case law...



Wrong again. The judge must look at the presumption AND the definition of presumption. I'll repeat it here;

(b) When 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) if 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) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) 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;

(C) even 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) if 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.
SECTION 3. The 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.
Link Posted: 9/1/2005 4:38:37 PM EDT

Originally Posted By logem:
In short, there are two ways to interpret this poorly worded law.

The crafters may have intended it to nullify past case law on traveling and legalize the average citizen to carry a firearm in their vehicle no matter where they are going.

Yet, a strict interpretation of the wording (as Chuck Rosenthal's argument) clearly shows that it merely shifts the burdon to the prosecution to show that you were not traveling as defined by past case law.

Why in the world couldn't they just pass some nicely worded law, without the possibility for two interpretations? What a bunch of dopes!

This will definately have to be cleared up by the courts, at some poor guy's expense who thought he was now able to legally carry in his vehicle at all times.



Why don't we send Gov Perry a email requesting him to amend 823 and take "presumed" out of this law and show him the different interpretations that this word will cause innocent people. Also send him a copy of the letter the Houston DA's repliy from the news paper. and cc all the stuff to the NRA and TSRA. Mabe someone will fix it.

You think?

FireBlade
Link Posted: 9/1/2005 5:57:56 PM EDT
The governor can't amend a law.
Link Posted: 9/2/2005 8:04:28 AM EDT

Originally Posted By pliftkl:
The governor can't amend a law.




and Perry is an idiot anyway
Link Posted: 9/3/2005 8:38:35 AM EDT
we'll someone can, who? should'nt we try?

FireBlade
Link Posted: 9/3/2005 11:17:20 AM EDT
The legistlature can. Unfortunately, they are done for the year, so you'll have to wait (but a letter wouldn't hurt!).

What we want to get is not a definition of travelling, but a clear piece of law that says you are allowed to possess a handgun in your car if it is:

(A) concealed
(B) you aren't prohibited from owning it
(C) you aren't in the process of commiting another non-traffic related crime
(D) you aren't in a gang (though I don't know how this holds up in court)

If the intent of the legistlators was to allow you to take your pistol with you to the grocery store, that's the law they should have written, not a statement saying "you are presumed to be travelling if..."
Link Posted: 9/3/2005 11:55:57 AM EDT
[Last Edit: 9/3/2005 11:56:27 AM EDT by PALADIN-hgwt]

Originally Posted By FireBlade:
we'll someone can, who? should'nt we try?

FireBlade



Try contacting the TSRA. They worked with legislatures on this issue, IIRC. You ARE a member, right?

Paladin
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