XXXXX,
I am not with the media but I am looking for a statement on Toby's stand on the recently passed HB 823 and the continued prosecution of citizens that are exempted by this law.  I am resident of Dallas, consider myself a Republican, and will be voting in the up coming election.  In Harris County, a fellow Republican DA has openly stated that he will not honor the new bill and hence has become the target for removal from office by the NRA and TSRA.

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

Thank you,
CQToverVmatch


Lets see what kind of reply I get.

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

first response

Quoted:

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

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


CMOS

some douments from their team:

HB 823 - Intent.doc

HB 823 - STATEMENT OF LEGISLATIVE INTENT It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of "traveling". The legislature has likewise never defined "traveling" because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances. HB 823 shores up the right of citizens to carry a concealed handgun while traveling by further underscoring the inapplicability of the offense of unlawfully carrying a weapon ("UCW") (Penal Code §46.02) to persons under particular factual circumstances. It does this by providing for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang. In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes "traveling" where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way. HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. If the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists. By enacting this unprecedented evidentiary standard under §2.05 in conjunction with the substantive terms of the presumption in §46.15, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler. It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason the 75th Legislature replaced the "defense" of traveling with a classification of the statute of UCW as instead entirely "inapplicable" to a 4908 79th LEGISLATURE — REGULAR SESSION traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term "traveling" was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun while traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling. As originally filed, HBi823 proposed to classify traveling as an "exception" (per Penal Code §2.02) to prosecution for UCW. However, after further consideration, the Criminal Jurisprudence Committee concluded that such an approach would be as ineffective as the 1997 change for the very same reasons. In passing HB 823, this legislature, like all previous legislatures, has declined to define traveling, avoiding limiting the term to a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be "crossing county lines" may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. HBi823 instead focuses on creating a specific set of relevant, objective facts that are capable of being determined on the spot by law officers. There are several additional important points that should be made in regard to the enactment of HBi823 and its interface with current law. HBi823 does not give "everyone the right to carry a gun in a car". State and federal laws applicable to firearms must be noted in conjunction with the new statute’ s terms, particularly the limitation of the presumption to persons who are "not otherwise prohibited by law from possessing a firearm." For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions. Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction. The presumption also does not apply where the gun is openly displayed. This was added by the Senate in response to concerns that citizens would otherwise possibly inadvertently have a weapon visible in a fast food or bank drive thru, etcetera, and alarm others. (Note, however, that the requirement that the gun be concealed is pertinent only to the issue of whether the defendant is eligible to receive a presumption instruction per the new terms of §2.05. It is not a new element required of a person who is traveling within the context of §46.15). The enactment of HBi823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. The new law is intended to assist law enforcement in doing its job while at the same time Friday, May 27, 2005 HOUSE JOURNAL — 79th Day 4909 protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling——a right to which they are already entitled. Terry Keel, Chair Criminal Jurisprudence Committee

HB 823 - Enrolled Version.pdf

H.B.ANo.A823 AN ACT relating to the applicability of the offense of unlawful carrying of weapons to certain persons and to the consequence of certain presumptions in the prosecution of a criminal offense. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTIONA1.AASection 46.15, Penal Code, is amended by adding Subsection (i) to read as follows: (i)AAFor purposes of Subsection (b)(3), a person is presumed to be traveling if the person is: (1)AAin a private motor vehicle; (2)AAnot otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic; (3)AAnot otherwise prohibited by law from possessing a firearm; (4)AAnot a member of a criminal street gang, as defined by Section 71.01; and (5)AAnot carrying a handgun in plain view. SECTIONA2.AASection 2.05, Penal Code, is amended to read as follows: Sec.A2.05.AAPRESUMPTION. (a) Except as provided by Subsection (b), when [When] this code or another penal law establishes a presumption with respect to any fact, it has the following consequences: Page 2 (1)AAif there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and (2)AAif the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows: (A)AAthat the facts giving rise to the presumption must be proven beyond a reasonable doubt; (B)AAthat if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find; (C)AAthat even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and (D)AAif the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose. (b)AAWhen this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences: (1)AAif there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is H.B.ANo.A823 2 Page 3 satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and (2)AAif the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that: (A)AAthe presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist; (B)AAif the state 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)AAeven though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and (D)AAif the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist. SECTIONA3.AAThe changes in law made by this Act apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date. SECTIONA4.AAThis Act takes effect September 1, 2005. H.B.ANo.A823 3 Page 4 ______________________________ ______________________________ AAAAPresident of the Senate Speaker of the HouseAAAAAA I certify that H.B. No. 823 was passed by the House on April 20, 2005, by a non-record vote; and that the House concurred in Senate amendments to H.B. No. 823 on May 27, 2005, by a non-record vote. ______________________________ Chief Clerk of the HouseAAA I certify that H.B. No. 823 was passed by the Senate, with amendments, on May 24, 2005, by the following vote:AAYeas 29, Nays 2. ______________________________ Secretary of the SenateAAA APPROVED: __________________ AAAAAAAAAAAAAAAAADateAAAAAAA AAAAAAAAA __________________ AAAAAAAAAAAAAAAGovernorAAAAAAA H.B.ANo.A823 4

HB 823 - Bill Analysis.pdf

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

sent this again :

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

received this, this morning

Mr CQT, My name is Bill XXXXX and I am helping Mr. Shook on his campaign. Toby fully supports HB 823 and he believes that every law-abiding citizen should have the right to defend themselves against  criminals. By way of background, I am a fellow assistant district attorney who is volunteering for the campaign in my free time. I am a TSRA member and a NRA Life Member. Toby and I have been shooting together, and I would never support any candidate for any office that did not support the Second Amendment. Sorry it took so long to get back with you. Please let me know if you have any further questions.

leaves it open to interpretation.