From this THREAD I am requesting a FIRE MISSION to email the District Attorney's Office - Chuck Rosenthal.
His email address is ROSENTHAL_CHUCK@dao.hctx.net
PLEASE - be articulate and polite, but strong in your position.
Below is a letter that I sent, along with his response.
Dear District Attorney Rosenthal,
I was greatly disappointed to read your reaction in the August 30th Houston Chronicle to the recently passed HB823, which clarified "presumption of traveling" with regards to carrying a handgun in a private motor vehicle.
It appears that the District Attorney's office has lost sight of this new law's intent - to ALLOW law-abiding citizens, the very same ones that elected you to office, to protect themselves and family while in their privately owned motor vehicles.
These law-abiding citizens are of no threat to you, law enforcement officers, or other citizens.
It is counter productive to crime reduction to prosecute law-abiding citizens for their efforts to defend themselves.
I strongly suggest that you reconsider the intent of the Legislature, and thus the people of Texas, before attempting to prosecute a law-abiding citizen with regards to this matter.
With Best Regards
Sirs, the Texas law reads that a person commits an offense if he intentional, knowing or recklessly carries on or about his person a handgun illegal knife or club. It is a class A misdemeanor to commit such an offense. The law says further that there are exceptions to this law. Hunting, fishing going to and from gun ranges AND traveling. If the new law had read that a person IS traveling when they are in a private vehicle, are not committing other crimes, not prohibited from having a handgun etc., that would be one thing. This new bill creates a "presumption" of traveling in those circumstances. That means that if someone is not actually traveling, they are in violation of the law.
Legally, when a presumption exists, the State (prosecutors) have to produce evidence that overcomes that presumption.
For example, if a friend of yours catches someone burglarizing his home and holds them for the police, at trial the burglar is PRESUMED to be innocent.
If someone is driving from his home to the grocery store to get a gallon of ice cream, he is not traveling within the court recognized meaning of the term.
During the session, we pointed out to the legislators that they needed to define "traveling". They could not. Since 1845 appellate courts have made determinations on what is and what is not traveling. Some decisions say traveling is from county to county if not habitually done. Some require longer journeys.
Another example. Police officer stops someone for running a stop sign and sees the butt of a handgun under the seat. The officer asks the destination of the motorist. Maybe it's the grocery store 2 blocks away and he intends to return to his home, 2 blocks the other direction. Is he traveling as the courts have interrupted that term?
The law used to be that if a citizen wanted to take advantage of the traveling defense, the defendant had to produce evidence that he was, in fact traveling. Now, the ball is in our court to prove that someone was not traveling.
If everyone in Texas who wanted to carry a handgun was an innocent citizen, we wouldn't need the law. Problem is that a lot of folks who get caught carrying guns.
The purpose of my letter to the editor was not to crusade. It was to warn Texans and others in ALL COUNTIES of this state that they will be subject to arrest if they carry weapons in violation of the law. Because sir persons are PRESUMED to know the law whether they do or not.
another respnse from me:
Thank you for the response.
No doubt, there are those who carry a weapon who are not "innocent." That would never need to be under debate.
My point, and seemingly the point of other citizens that wrote you, is that if a citizen was traveling to the grocery store 2 blocks away (have to "travel" to get there, right?) and they were stopped by a Law Enforcement Officer for something such as a simple traffic violation and discovered the presence of a concealed weapon via questioning, why would your office seek to prosecute in this situation?
There is discretion on the part of your office to prosecute or not, in many cases that are not clearly "black and white" especially, when in my example case above, no harm or intent to harm was done.
I appreciate you taking the time to read this.
With Best Regards,
His (weak) response:
Blame it on lawyers. Traveling, as far as the Penal Code goes has a particular meaning as in "one who goes on a trip or journey" and not one who simply changes his location.
His response looks pretty reasonable, and is in sync with how most people interpret the new law (that it shifts the burden to the prosecution). I'd rather save the "fire missions" for occasions when there's a problem that might be corrected. In this case, no amount of mail or Email to the Houston DA is going to change the law.
If you want a fire mission, push your legistlators to define travelling.
I am not going to comment on the positions stated in the respective messages, but I would sure expect better spelling and grammar from a DA.
Won't chanhe the law, I know that. It may, considering he is an elected official, remind him who put him in office when it comes to decisions on prosecuting.
Also, not a slam at all but please do not dump on this thread, or my request for the emails to the DA. I respect you opinion to not email him, so please respect mine to do so.
Thanks for the input.
This is just another chapter of the perpetual law making machine producing work for themselves.
Get your CHL or carry something much more effective!!!
quite obviously the stupid piece of shit has forgotten that people are innocent until proven guilty, while furthermore is it honestly that big of a deal to follow the suspect to wherever he's headed and see who he's meeting with? or to set up surveillance? If memory serves me correctly, armed robbery is a felony and so using up more resources to watch the suspect is necessary and henceforth a reasonable use of said resources......
i.e. he's trading our rights for his own sloth and laziness.
Chuck Rosenthal can kiss my ASS !!
I hope he gets voted out of office.
from the other thread about HB823 ,
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.
this isn't specific enough for Chuck ??
seems like the intent of HB 823 is spelled out very clearly here by the author of the bill
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
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.
Email sent to DA CR.
By my read as long as I am not violating one of the qualifiers (member of gang, prohibited from possession, other than private vehicle, etc.) then I am travelling!!
The legislatures intent was to remove the prerogative of individual County DA's from defining "Travelling". The Texas legislature defined it and they purposely did not include milage, county line count or stay duration!
Well done CMOS. Be sure to highlight that you are a Primary Voter when you email the DA.
Is this DA mistaken about the legal use of the word "presumed"?