Keith B wrote:
Even if out of the vehicle, he may have an out:
Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(h) It is a defense to prosecution under Subsection (a), (a-1), (a-2), or (a-3) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.
The portion in red above appears to be from section Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. This is an early report, but it appears that the driver was not a license holder or other "special person" and, thus, would not have a defense to prosecution.http://www.statutes.legis.state.tx.us/Docs/PE/pdf/PE.46.pdf
Perhaps a lawyer could use section 9.22 as a defense.
Sec. 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.9.htm
O. Lee James, III Captain, US Army (Retired 2012), Honorable Order of St. Barbara
2/19FA, 1st Cavalry Division 73-78; 56FA BDE (Pershing) 78-81
NRA Distinguished Life Member (Disabled Vet), TSRA, NAR L1