Sept. 1 - Welcome to Dodge City

[KD5NRH]

The "presumed fact" as stated above is that the person was "traveling".

Last I checked, before a jury gets to determine anything, the person most interested in that decision gets to spend some time being cuffed, stuffed, and listed in the local paper's jail log for all to see. (IMO, they should be required to publish an acquittal log along with a jail log, but that's a different rant)

[txinvestigator]

The "presumed fact" as stated above is that the person was "traveling".

Last I checked, before a jury gets to determine anything, the person most interested in that decision gets to spend some time being cuffed, stuffed, and listed in the local paper's jail log for all to see. (IMO, they should be required to publish an acquittal log along with a jail log, but that's a different rant)

I am afraid I miss your point.

[stroo]

TXI,

First, look at Birch v. State, 948 S.W.2d 880, 1997 Tex. App. LEXIS 2892(1997). That opinion, which involves traveling cites a whole bunch of other cases dealing with traveling. I know what case law is and there is case law on traveling.

Second, go back and read Texas Penal Code 2.059(b) (1) "if 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; ..."

The clause after the word "unless" allows a court to not present the presumption to the jury if the evidence as a whole precludes the finding beyond a reasonble doubt of the presumed fact. The presumption is rebuttable not only as to the facts giving rise to the presumption but as to the overall facts at issue. Again, if I go from my home in Coppell to Kroger's in Coppell to go grocery shopping I don't believe a court is going to have much of a problem in finding that I wasn't traveling regardless of the presumption.

[txinvestigator]

TXI,

The clause after the word "unless" allows a court to not present the presumption to the jury if the evidence as a whole precludes the finding beyond a reasonble doubt of the presumed fact. The presumption is rebuttable not only as to the facts giving rise to the presumption but as to the overall facts at issue. Again, if I go from my home in Coppell to Kroger's in Coppell to go grocery shopping I don't believe a court is going to have much of a problem in finding that I wasn't traveling regardless of the presumption.

Then you just don't understand the law. IF the court finds that the 5 elements were there, then you were in fact traveling without regard for distance or destination. The presumption met takes away the ambiguatory nature ou traveling.

[age_ranger]

Interesting read.....So, what I understand is that after 01 September, it is legal for a non-CHL holder to have a loaded firearm in his/her vehicle whether parked or driving.

My question is this, if a person who is a non-CHL holder is stopped, do they have an obligation to tell teh officer there's a loaded firearm in the vehicle?

[govnor]

Interesting read.....So, what I understand is that after 01 September, it is legal for a non-CHL holder to have a loaded firearm in his/her vehicle whether parked or driving.

My question is this, if a person who is a non-CHL holder is stopped, do they have an obligation to tell teh officer there's a loaded firearm in the vehicle?

I was also wondering that. My first thought is no. Even with a CHL, there are some people that don't think you have to tell the officer. Of course when he runs your license it will tell him you are a CHL holder on his screen and then that might make him question why you didn't tell him. I personally think there is nothing to hide.

I would assume that after the new law passes, if they ask (non-CHL), it would be a good idea to tell them there is a weapon in the car. If not, then oh well. What they don't know won't hurt them. I didn't see anything in the law that says you have to give them a heads up. If I thought there was a reason to tell them, then I would. In that case, they probably wouldn't ask anyway until you were out of the car and leaning up against it...

[txinvestigator]

My question is this, if a person who is a non-CHL holder is stopped, do they have an obligation to tell teh officer there's a loaded firearm in the vehicle?

No legal obligation.

[KBCraig]

"Do you have any weapons in the car?"
"I don't have anything illegal, officer."

[seamusTX]

His position is that people who don't have a CHL have been arrested for having a handgun in a vehicle, despite the presumption. The TSRA published a paper about it: http://tsra.com/docs/AboveTheLaw.pdf

- Jim

[stroo]

That's because the presumption was not as lock tight as TXI or the TSRA or apparently the legislature thought it was. Whether TXI likes it or not and despite the fact that he has resorted to insulting me rather than meeting my arguments, there was a decent argument that prosecutors could rebut the presumption using the existing case law on traveling. BTW, whatever TSRA or the legislature intended when it was enacted, the presumption on its face did not redefine or overturn the findings of appellate courts over the past 100 years as to traveling. It was only a presumption, nothing more. As a strict constructionist, I really want legislatures to say in the statutes exactly what they mean. The presumption statute did not do that. Instead it tried to finesse the traveling law and left open room for the prosecutors' argument. Thankfully, 1815 does state the Legislature's intent exactly.

Therfore, there is no argument for prosecutors to rely on under 1815. As a result, TXI is exactly right that arrests for having a gun in the car should not occur under 1815 the way they did under the presumption.

[Liberty]

whatever TSRA or the legislature intended when it was enacted, the presumption on its face did not redefine or overturn the findings of appellate courts over the past 100 years as to traveling.

which appelate court findings are you talking about? I thought the travelling rule had never made it to the appellate courts.

I know there was a couple of arrest in Harris county over the newrer traveling Bill but if my memory recalls correctly their weren't any convictions.
It seems reasonable to believe that if the old bill were left to stand it would have pretty much held up. Rosenthals stand was a stretch, and he would have been proven to be the an idiot if it ever went to trial.

What I wonder about though with the new law law is if some does a very minor crime that is not part of the traffic laws while carrying under the new law.
For instance littering. Or smoking in a park in Baytown. or any of a zillion little laws. sudenly one could be exposed to UCW ?

[seamusTX]

What I wonder about though with the new law law is if some does a very minor crime that is not part of the traffic laws while carrying under the new law.
For instance littering. Or smoking in a park in Baytown. or any of a zillion little laws. sudenly one could be exposed to UCW ?

Yep. "...engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic..."

(I wouldn't mind if noise ordinances with regard to loud car radios were enforced better. )

Another thing to keep in mind is that any offense that occurs within 100 yards of school grounds can be enhanced by one level, so UCW, normally a class A misdemeanor, becomes a felony.

- Jim

[longtooth]

Gentlemen you need to quit the barbs at each other.
It is not going anywhere.
You can both disagree & argue all you want to PM if you choose but not on the public board.

[stroo]

Liberty, Look at the Birch case I cited above. It has footnotes citing a number of other cases on traveling over the years. All of those are appellate opinions. While the appellate courts were not consistent on what constituted traveling, I am not aware of any case that found someone was traveling when making normal trips around town for errands. You generally had to actually be on a trip of some kind although there also were exceptions to allow you to transport a gun to work to protect the workplace, home from a gun store where you had purchased the weapon, and a couple of other things.

I am not aware of any cases under the presumption that have made it to an appellate court. While I don't particularly like Rosenthal's interpretation, I think he is right and TSRA is wrong. Certainly the courts could go with him particularly if you had a case where involving someone simply going to the convenience store two blocks from the home to pick up some beer. The problem is that the presumption statute only created a presumption; it did not on its face redefine "traveling". Therefore it left room for Rosenthal's interpretation.

1815 on the other is pretty clear and does not leave room for that kind of interpretation.

[seamusTX]

While I don't particularly like Rosenthal's interpretation, I think he is right and TSRA is wrong.

The legislative intent of the current law was clearly to allow citizens to carry handguns in their cars. They just chose the wrong way to accomplish it in 2005.

The meaning of the current law (pre-September 1) is further supported by nearly all charges being dropped or cases being dismissed in a preliminary hearing.

- Jim