Quoted: Amen!!! Getting your ass out of jail will cost you more than its worth. Why even bother with the "traveling laws" TX is a shall issue state. If you have your CHL, no worries. Carry whenever you want.

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.

Quoted: This argument is pointless cause TX is a "shall issue" Concealed Handgun state. That law even makes provision for under priveleged individual and lowers fees for them. So barring not being able to pass the background check, there should be very little reason as to why a person should not have one. By having a CHL, you bypass "peaceable travelling" law altogether. Which makes this conversation pointless.

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.

Should I change the title on my thread

Quoted: Should I change the title on my thread

I was thinking that a couple hours ago... hehe

New title:  How does one meet the DFW group?/TX Penal Code & "Traveling"

Quoted: Quoted: The word "travelling" seems to be one of those terms which is not clearly defined in the TX Penal code (Ch. 46), which applies to concealing a handgun. Citbria & dad seem to think it is defined in the TX penal code, but I have yet to find it (since its not really there). They believe that it is defined as crossing three county lines-- I've heard this before, but it can never be confirmed in the statutes I have searched. I think it might be found on either the DPS site or the Attorney General's site in the form of an AG opinion.

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:

BIRCH v. STATE, 948 S.W.2d 880; 1997 Tex. App.: TRAVELING DEFENSE The traveling defense provided  [**7]  by statute has remained unchanged since its promulgation in n5 "Traveling" has never been defined by statute and the precise meaning of the term has been the subject of much debate. Ayesh v. State, 734 S.W.2d 106, 108 (Tex. App.--Austin 1987, no pet.); see generally Robert G. Newman, A Farewell to Arms? -- An Analysis of Texas Handgun Control Law, 13 ST. MARY'S L. J. 601, 607 (1982). The decisions have not been harmonious. 20 TEX. JUR. 3D Criminal Law § 1327 at 469 (1982). In fact, the decisions have been described as being in a state of "hopeless confusion." Smith v. State, 630 S.W.2d 948, 951 (Tex. Crim. App. 1982). There is no bright line test for determining when one is "traveling" for the purpose of the statute and the standards that have evolved from the case law are not models of clarity. Soderman v. State, 915 S.W.2d 605, 610 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd, untimely filed).   - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Act approved April 12, 1871, 12th Leg., R.S., ch. 34, § 1, 1871 Tex. Gen. Laws 25, 25, reprinted in 6 H.P.N. GAMMEL, LAWS OF TEXAS 927, 927 (1897); see also Moosani, 914 S.W.2d at 574.   - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  [**8]   In applying the term "traveling", Texas courts have generally considered distance, time, and mode of travel. See Practice Commentary,  [*883]  TEXAS PENAL CODE ANN. art. 46.03 (Vernon 1989); 6 MICHAEL B. CHARLTON, TEXAS CRIMINAL LAW § 26.3 at 317-18 (West 1994). One who goes from one point in one county to another point has been held a "traveler" within the meaning of the statute. See Ballard v. State, 74 Tex. Crim. 110, 167 S.W. 340, 340 (1914); Campbell v. State, 58 Tex. Crim. 349, 125 S.W. 893, 893 (1910). This is particularly true where there is a real journey. See Smith v. State, 42 Tex. 464, 465-66 (1875). Where the distance is short and there is no real journey, one is not a traveler although he may be going from one county to another. See Blackwell v. State, 34 Tex. Crim. 476, 31 S.W. 380, 380 (1895); see also Stanfield v. State, 34 S.W. 116, 116 (Tex. Crim. App. 1896). When applying the general rule of going from one county to another, the mode of travel and not distance alone is to be considered. Kemp v. State, 116 Tex. Crim. 90, 31 S.W.2d 652, 653 (1930). All the circumstances of each case must be considered. See George v. State  [**9]  , 90 Tex. Crim. 179, 234 S.W. 87, 88 (1921). Early on, it was said that it was impossible to establish any unbending rule or determine distance that will characterize an act as a journey or the actor as a traveler. Bain v. State, 38 Tex. Crim. 635, 44 S.W. 518, 518 (1898) (holding that one who traveled thirty-five miles was a traveler). Where the actor was preparing to spend the night, the distance of twenty-five miles has been held sufficient to constitute one a traveler. See Price v. State, 34 Tex. Crim. 102, 29 S.W. 473, 473 (1895). The trip must be typically overnight. Vogt v. State, 159 Tex. Crim. 211, 258 S.W.2d 795, 796 (1953); Ayesh, 734 S.W.2d at 106. However, Vogt did not restrict the defense solely to those situations. Matocha v. State, 890 S.W.2d 144, 145 (Tex. App.--Texarkana 1994, pet. ref'd). The question of whether one is a traveler is a fact-driven determination that is not dependent upon any one particular situation. Id. at 145. CESSATION OF A JOURNEY The cessation of a journey on legitimate business incident to the journey or other valid reason does not forfeit a defendant's right as a traveler to carry a pistol. Kemp  [**10]  v. State, 116 Tex. Crim. 90, 31 S.W.2d 652, 653 (1930) (holding that stopping to dine while leaving a gun in car did not cause loss of traveler status); Irvin v. State, 51 Tex. Crim. 52, 100 S.W. 779, 780 (1907) (holding deviation valid if for medical reasons); Price v. State, 34 Tex. Crim. 102, 29 S.W. 473, 473 (1895). Mere delay does not deprive one of the defense of traveling. Irvin, 100 S.W. at 780; Hunt v. State, 52 Tex. Crim. 477, 107 S.W. 842, 844 (1908). When one turns aside from his journey to partake of any pleasure or business not connected with the journey he may lose his traveler status. See Tadlock v. State, 124 Tex. Crim. 637, 64 S.W.2d 963, 964 (1933); Pecht v. State, 82 Tex. Crim. 136, 199 S.W. 290, 291 (1917); Colson v. State, 52 Tex. Crim. 138, 105 S.W. 507, 507 (1907). The traveling status also ceases when a traveler has returned home from his journey. Smith v. State, 630 S.W.2d at 951. A traveler who returned to his own home from out of state, showered, changed clothes, and drove out into the country with his wife was no longer a traveler when he was arrested for unlawfully carrying. Kiles v. State, 398 S.W.2d 568,  [**11]  569 (Tex. Crim. App. 1966). However, on returning from a journey, a person may carry his pistol home from the train to his home or place of business. Linticum v. State, 17 S.W. 930, 930 (Tex. Crim. App. 1891). In fact, a pistol may lawfully be taken to one's home or place of business for the purpose of leaving it there. See Fields v. State, 45 Tex. Crim. 563, 78 S.W. 932, 933 (1904).

Continued on next post....

... Here's the 1898 case

BAIN v. STATE, 38 Tex. Crim. 635; 44 S.W. 518; 1898 Tex. Crim. App.: Carrying Pistol -- Traveler.   On a prosecution for unlawfully carrying a pistol, where it apepared that defendant lived in M. County, thirty-five miles on a direct line to the point of destination, where he arrived at 1 o'clock, remained over night, and returned home next day, Held, he was evidently a traveler.   Carrying Pistol -- Suggestion to Legislature to Define the Statutory Word "Traveler."   In view of the fact that the decisions as to what constitutes a traveler are not harmonious, and the further fact that to give the word a liberal construction or definition would, in a great measure, tend to defeat the purpose of the law against carrying a pistol, it is suggested that the Legislature define what is meant by the word "traveler." OPINION:  [*635]   [**518]  HENDERSON, Judge.--Appellant was convicted of carrying a pistol, and his punishment assessed at a fine of $ 35; hence this appeal. Upon the trial, the defendant being on the stand as a witness in his own behalf, the State asked him "if it is not a fact that you have been heretofore charged, in a number of instances, in this county, with like offense?" to which he replied, "I have been charged before with like offenses; I don't know how many times." This evidence was clearly inadmissible. The fact that a man unlawfully carries a pistol is no bar upon his credibility as a witness. The lowest penalty attached to this offense is a fine of $ 25. The jury assessed a fine of $ 35. This illegal testimony may have caused this result. The defense was that appellant was a traveler. It appears from the record that  [***2]  he lived in Motley County, about thirty-five miles on a direct line from Childress, the point of his destination, and in going to which place on this journey he passed through portions of several counties. He arrived at Childress about 1 o'clock in the day, and remained over night, returning home the next day. Unquestionably, this raised the issue whether or not he was a  [*636]  traveler at the time he was charged with carrying the pistol. The illegal evidence may have induced the jury, notwithstanding they might have believed he was a traveler, to find against him because of his habit of carrying pistols. Under the circumstances of this case, we believe the defendant had a good defense. He was evidently a traveler. We are aware that the decisions upon this point are not harmonious. See Darby v. State, 23 Tex. Ct. App. 407, 5 S.W. 90; Price v. State, 34 Tex. Crim. 102, 29 S.W. 473; Stanfield v. State (Texas Crim. App.), 34 S.W. 116; Eubanks v. State (Texas Crim. App.), 40 S.W. 973; Stayplace." See Cent. Dict.; Webst. Dict. By this term, construed under the statute, who is a traveler. The statute uses the term "traveler," and exempts all such from liability or punishment for carrying  [***3]  a pistol. The general definition of a "traveler," in the dictionaries, is "one who travels in any way; one who makes a journey, or who goes from place to place." See Cent. Dict.; Webst. Dict. By this term, construed under its ordinary meaning, almost anyone who goes from place to place would be exempt from the operation of the law. We do not understand, however, that it was the object of the lawmakers to place this liberal construction on the statute by the use of this term. Article 9, Penal Code 1895, requires: "All offenses shall be plainly defined, and the import of the language shall be construed without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words." Article 25, Code Criminal Procedure, 1895, provides: "The provisions of this code shall be liberally construed so as to attain the objects intended by the Legislature, the prevention and suppression and punishment of crime." If the liberal definition is given to the word "traveler," almost every person who goes from one place to another may be considered a traveler. If  [***4]  a statutory interpretation or construction is enforced, it is difficult, under the definition, to determine who is a traveler. We would suggest, in this state of uncertainty, that the Legislature define what is meant by a "traveler." For the error above pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.

Quoted: 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.

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????

§ 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?

Quoted: OMG! You ROCK!!!! That is awesome! How did you find all this? Through the Lexis/Nexis network? damn...

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.

So... this just proves my point: ITS NEVER BEEN DEFINED, EVER, as the "cops" will say....

Yes, "traveling" has never been defined. Even the courts vary widely on their interpretation. I was amazed.

And basically, as we've always said: IT IS UNCONSTITUTIONAL! (and the 1898 Court of Criminal Appeals agreed!) (damn that was long ago!)

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.

This just also proves, that even the TX Penal Code back in 1995, did not define this term, as some claimed earlier...

Yup, and that explains why everybody seems to have a different conception of the term.

Anyway, what can we do to get the Legislature to define this in the Penal code?

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.

BTW: What do you do for a living????

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.

Quoted: 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?

The unlawful carrying statute applies only to handguns, illegal knives, and clubs.

§ 46.02. Unlawful Carrying Weapons (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.

However, there are a number of places where the weapons listed in § 46.05 are prohibited, such as schools, court houses, etc..

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."

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.

Quoted: Quoted: I disagree.  Is it worth losing your rights or having to pay to get a "permit" to exercise your rights?? The 2nd Amendment trumps these laws.  The 2nd Amentment is very clear. Ignoring the 2nd Amendment for arguments sake, the Texas law is clear.  According to Webster's the definition is clear and the law is clear. It is the fuckers that harass you that want to muddy the definitions. (btw: "travel" means to go from one place to another) 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.

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........

Quoted: 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.

I wholeheartedly agree.

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

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

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.