HEADLINE: Have Gun, Will "Travel";
Firearm Advocates, Prosecutors Take Aim at New Law
BYLINE: Mary Alice Robbins
BODY:
The Texas Legislature's effort to prevent the arrest of law-abiding citizens who aren't licensed to carry concealed weapons but carry handguns in their cars while traveling may misfire. H.B. 823, which took effect on Sept. 1, provides the first presumption in the Texas Penal Code that favors defendants. But whether the new law will prevent many arrests for unlawful handgun possession in vehicles remains to be seen.
Although 46.02a of the Penal Code makes it illegal for anyone without a concealed handgun license to carry a handgun or to have one accessible in a vehicle, Texans long have been allowed to carry weapons while traveling. However, courts have issued various interpretations of what the word "traveling" means.
"I think the old law is so vague as to be, in all fairness, unenforceable," says Tyler solo Sean Healy, who testified on behalf of the Texas State Rifle Association in support of H.B. 823 during legislative hearings on the bill earlier this year. "That hasn't stopped anybody from enforcing it," Healy adds. Healy says he thinks the point of H.B. 823 was to clarify the law and make it much more difficult for somebody to run afoul of it. "If the prosecutors and peace officers will follow the intent of the bill, then it will go a long way toward solving the problem," he says.
State Rep. Terry Keel, R-Austin, the bill's author, says the new law is designed to end the debate on the street and in the courtroom about what constitutes traveling with a concealed weapon. But Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association, says there is confusion about the effect the law has on a police officer who finds a weapon in a motorist's car. "No one knows how a defense presumption works on the street," Edmonds says.
Under the new law, there is a legal presumption that citizens are traveling if they are in a private vehicle, have a handgun that is not in plain sight, and are not engaged in unlawful activity, prohibited by law from possessing a firearm or members of a criminal street gang. Those criteria are set out in amendments to 46.15 of the Penal Code. H.B. 823 also amended 2.05 of the Penal Code, which deals with presumptions. "It says the presumption that you are a traveler applies, unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist," says Keel, a partner in Keel & Nassour and a former Travis County sheriff and prosecutor. Keel says the intent of the law is to provide police officers meaningful criteria to determine if a person found with a handgun in a vehicle is a traveler who does not have to be arrested for unlawfully carrying a weapon, a Class A misdemeanor punishable by incarceration of up to a year in county jail and a $4,000 fine. There is no longer a need for a police officer to apply a subjective definition of what constitutes traveling, when the person is cloaked with the evidentiary presumption that he or she is a traveler under this law, he says.
Presumption vs. Bar
However, people who are arrested for carrying handguns in their cars can expect to be prosecuted in Houston. "Just because there's a presumption does not mean the presumption will not allow prosecution," says Harris County District Attorney Chuck Rosenthal. Rosenthal says the new law changes the burden of proof on the presumption of traveling. Whether the presumption is proved is a matter for the courts, says Rosenthal, adding that he doesn't think police officers should make that decision. Rosenthal says an officer can check a database to see if a person is a convicted felon prohibited from possessing a weapon, but the officer won't necessarily find that the person is under a temporary restraining order that prohibits him from carrying a handgun.
Colorado County Attorney Ken Sparks says he wants law enforcement officers to make roadside decisions about whether motorists found with handguns in their vehicles are travelers. "If they qualify as a traveler, I don't want them prosecuted; I don't want them filed on," Sparks says. But Sparks says the case law on this issue indicates someone has to be on an overnight trip to be a traveler. Someone who travels from one small town in Colorado County to another small town in that county to buy groceries is not a traveler, he says. Sparks is critical of the new law. "If the Legislature wanted to create a defense, they should have done so," he says. "They didn't; they created a trial presumption. Any presumption can be removed with evidence at the time of trial."
Healy, the attorney who backed H.B. 823 on behalf of the pro-gun group, says he thinks the only unfortunate thing about the bill is the Legislature's failure to provide a definition of traveling.
Keel says the Legislature has shied away from defining traveling out of concern that a definition would limit what the word means. Instead, the Legislature passed a bill designed to prevent the arrest of anyone who meets the bill's criteria for a traveler, he says. "Arresting someone simply because he has a handgun is flagrantly against the intent of the bill," Healy says.
But no one is betting that it won't happen
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http://gritsforbreakfast.blogspot.com/2005/09/texas-new-carry-law-what-does-it-mean.html[THE STORY AT THIS LINK HAS MANY HOT LINKS FOR FURTHER INFO] Wednesday, September 14, 2005
Texas' new carry law: What does it mean?
So can law-abiding Texans carry a loaded firearm in their personal vehicles now, or not?
With the passage of HB 823 (Keel/Hinojosa) into law September 1, legislators and the National Rifle Association believed they'd finally resolved a longstanding dispute that for years turned thousands of legal gun owners into law enforcement targets. Texas law lets drivers carry a weapon in their car when they're "traveling," but the definition of traveling has never been legally settled.
So the Legislature passed HB 823 creating a "presumption" that the driver is "traveling" unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant committed a Class B misdemeanor or worse, or (e) the defendant is a gang-banger. (Conflict alert: I testified at the hearings in both chambers in favor of the bill on behalf of ACLU of Texas.)
The new law seemed pretty straight forward. If the gun is legal, you're not a crook, you're driving your own car, and if the gun is stowed (i.e., you're not driving around with it laying on the passenger seat like an idiot), then you can carry a gun in your car when you're driving. At least, that's what legislators thought they'd passed.
Nearly immediately, though, prosecutors and police began to say they wouldn't enforce the new law, or, rather, would continue to enforce the old one. Harris County DA Chuck Rosenthal led the charge, announcing instructions to officers to continue to make arrests for UCW (unlawfully carrying a weapon) just like they always had.
On the District Attorney Association's public user forums, a discussion occurred that gives a good idea of what the arguments will ultimately look like when this plays out in court. Several prosecutors are looking for a way to agree with Mr. Rosenthal. A Department of Public Safety lawyer announced she thought the old court cases on "traveling" were still applicable, while another from Columbus announced:
I am giving the officers in my county the following instructions:
A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.
[THAT IS NOT THE LAW, AN OVERNIGHT TRIP IS NOT REQUIRED, IT'S MERELY A FACTOR TO CONSIDER]That's simply ignoring the new law. I wonder what prosecutors are telling officers in other jurisdictions?
Fortunately, cooler heads emerged in the DA's discussion forum. After that interpretation was challenged, an attorney with Texas Parks and Wildlife (which oversees Texas game wardens) weighed in with this analysis:
As I read it, the state must be able to prove beyond a reasonable doubt at every UCW trial one of the following: Defendant is a gang member, was breaking a law, was prohibited from possessing a gun, was not in a private vehicle, or was carrying a handgun in plain view. The presumption cannot be rebutted by showing the [driver] was not really "traveling." What matters is whether the state can prove (or disprove, as applicable) one of those 5 facts beyond a reasonable doubt. I don't see any other way and have advised TPWD officers accordingly. ...
On the surface the new law is worded as a presumption, but in substance at least one of the 5 facts must be treated as an element of the offense which the state must prove at trial (or disprove, depending on which one of the 5 is chosen). ... For what it's worth, I have no reason to believe this new law will increase crime. It may even have a deterrent effect as criminals realize that more honest citizens will be armed in more situations.
That's how legislators understood the bill when it was debated and passed. I predict, at the end of the day, it's how the courts will interpret it (though I'm no attorney and could certainly be wrong). Bill author Terry Keel issued a statement on the controversy, siding with the Parks and Wildlife intepretation of the statute:
“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,” said the bill’s primary author, Rep. Terry Keel, R-Austin.
“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said.
“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,” he said.
I'll bet that makes Chuck Rosenthal apoplectic. Ironically, now that Keel's running for a seat on the state Court of Criminal Appeals, there's a good chance he'll actually be a sitting justice by the time any case reaches the highest levels. Having the bill author seated on the bench might give justices special insight, one could imagine, into the specifics of "legislative intent."
UPDATE: Of Arms and the Law wonders if police officers who make arrests without discovering evidence voiding the presumption might open themselves up to wrongful arrest suits. Injustice Anywhere thinks Chuck Rosenthal's on a power trip. The Waco Herald-Tribune (9-16) covered the controversy. There's a good discussion at Texas Concealed Handgun of San Antonio.
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www.concealedhandgun.com/newlaw.htmSome New Concealed Handgun Laws
Effective September 1, 2005
Several new laws have been passed by the Texas Legislature and signed by Governor Perry to become effective on September 1, 2005. Although trying to detail all of them would be burdensome and confusing, I will try and summarize a couple of very important ones with emphasis on the last one:
* Renewal time has been extended from 4 years to 5 years. This is only for licenses that expire after September 1, 2005. Additionally, for seniors (60 years or older) the renewal fee is reduced to $35.00. New licenses will be issued for 5 years.
* Effective after September 1, 2005, active duty military, or honorably discharged veterans, may obtain a license when they are 18 years of age. All fees to the state are cut in half for active duty military only and range qualification is optional if you qualified with a handgun (not a rifle) in the last five years. You will need to send DPS proof of this by certification or notation in your military records.
* You may have heard about a new law [HB 823] which allows Texans to carry a handgun in their private vehicle without a license. Please read the following very carefully. This is not a scare tactic or an attempt to increase my business. Actually my classes have been doing quite well in the last several months, including the future October and November dates.
Before everyone gets all excited about this new law, please read the following:
In essence, this law simply changes the presumption of traveling, thereby shifting the burden of proof to the State to prove the person charged with Unlawfully Carrying was not traveling. The previous charge of Unlawfully Carrying forced the Defendant to prove he/she was traveling based on the definitions of traveling, i.e., traveling through two counties/overnight stay, as set forth in case law (there was no definition of traveling in the Penal Code). Now, if he/she is in a private vehicle, it is presumed he/she is traveling, however the state can, and may, offer proof the person charged was not traveling based on the definition of traveling in, guess what, state case law. The state can show, for example, the person arrested for Unlawfully Carrying had perishable groceries in their vehicle or was going to work, etc., so consequently, they did not meet the test of traveling as defined by case law. This is called a "rebutted presumption".
As in many laws, a lot will depend on the subjective reasoning of the officer. Prior to concealed handgun licenses becoming available, it was generally accepted by many Texas Peace Officers for Texans to carry weapons in their vehicles. When the CHL came into effect (1996) most officers agreed a person would now need a license to carry, even in their vehicles. Mostly it depended on the attitude of both the officer and driver. Until new case law is established, the same will hold true.
The average citizen should always consider getting a concealed handgun license to prevent being arrested for Unlawfully Carrying and becoming the new case law, even with the presumption of traveling now going to the Defendant. It is certainly conceivable this law, by rewriting, could gain more teeth in the next several years, but for right now, nothing takes the place of the license to remove any doubt in the officer's mind.
Remember, if you are carrying a handgun, either in your car or on your person without a license, a police officer can arrest you, place you in jail and you may then face a trial. Even if the case is eventually dismissed, or you are found not guilty by a judge/jury, a night in jail is not real desirable and lawyers are expensive. Remember, "you may beat the rap, but not the ride". The San Antonio Police Department and the Bexar County Sheriff's office have advised me they will continue, after more thorough investigation, i.e., location, time etc., to make arrest for Unlawfully Carrying if the test for traveling, according to case law, has not been met. Most District Attorney's offices have indicated they will evaluate an arrest and make a determination whether to prosecute or not on a case by case basis.
A well known, "high powered", San Antonio criminal defense attorney told me " I might be able to beat the charge in court, but only after being arrested and spending a night in jail. So, I'm certainly not going to test this new law by carrying a weapon in my car without a license".Permission to use the following Email received from Judge Tim Johnson, Bexar County Court Number 5.
Sammy, Your website is very well done. I was particularly impressed with your explanation of the impact of the traveling presumption. You and I are on the same page in regards to it being a rebuttable presumption. The state has the right to put on evidence to rebut the traveling presumption. If the state puts on no evidence, the presumption stands and the defendant is acquitted. From a practical standpoint I think it reverts to officer discretion or department policy. This may be the old saw "you can beat the rap but you can't beat the ride". I especially agree with your conclusion that the better practice is to get the CHL and remove any doubt.
Tim Johnson Judge, County Court 5The following is a verbatim legislative update distributed to all District Attorney's offices in Texas by The Texas District and County Attorney's Association:
"Perhaps the most significant change to Sec.46.15 comes by way of HB 823, which creates a new presumption of traveling in certain circumstances. Texas already generally prohibits people from carrying weapons in their cars unless they are "traveling" (Sec. 46.15(b)(3)) or complying with another defense under the law. The code previously did not define this defense of traveling - and HB 823 does not define it either - but the bill does create a new defense presumption that a person is traveling if he is:
* in his private vehicle;
* not otherwise engaged in criminal activity (other than a traffic offense);
* not otherwise prohibited by law from possessing a firearm;
* not a member of a criminal street gang; and
* not carrying a handgun in plain view.
This change is tied to an amendment to Penal Code Sec. 2.05 (Presumption) in which the legislature creates, for the first time, a presumption for use in establishing a defense. See the notes after that section for more details about potential problems with the implementation of that amended statute in court proceedings. The creation of this new defense presumption also raises several questions for peace officers in the field. HB 823 indicates a legislative intent to de-criminalize the carrying of a weapon under the provisions listed in new subsection (i); however, defenses, presumptions, and other related legal concepts are issues for the courts, not the street. Therefore, officers are still acting within their lawful discretion if they arrest a person who might qualify for the traveling defense or the new traveling presumption, just as they can arrest a person who might have an alibi defense or a claim of self-defense. Nevertheless, the new presumption will require peace officers to conduct more thorough investigations in order to assist the courts in determining whether these new presumptive facts apply in each case. Finally, note that the new defense presumption applies to both drivers and passengers, and it does not directly impact the rights, responsibilities, or potential prosecution of a person licensed to carry a concealed handgun under Sec. 46.035."
The following is a link to the Texas DPS website and their interpretation of this new law which basically states the same as mine noted above.
www.txdps.state.tx.us/administration/crime_records/chl/Traveling.pdfI personally spoke with Mr. Damian Duarte, the senior law clerk for the house committee responsible for passing HB823. Mr. Duarte was very cooperative and confirmed the above explanation as being the purpose and intent of the new law. It was not to allow the free carrying of weapons in vehicles without a concealed handgun license.
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