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Posted: Mon Oct 08, 2007 7:27 pm
by frankie_the_yankee
seamusTX wrote:agdude wrote:I have... re-read (i)(5)... I think open carry qualifies as "plain view"
That part of the law is obsolete. They haven't updated the web site yet.
The traveling exception has always (since the 19th century) been as stated above -- just traveling.
- Jim
I don't think that section is obsolete. It was updated in 2005. I do not believe the 2007 law, which allows for
concealed carry in a motor vehicle, repealed it.
It looks to me that to qualify for the travelling exemption the gun has to be concealed.
At any rate, IMO if you OC on a motorcycle in TX, and you're not a cop or other qualifying public official, you're asking for trouble with the law.
Posted: Mon Oct 08, 2007 8:12 pm
by casingpoint
You can carry in a motor vehicle. The gun must be concealed. But one cannot be "in" a motorcycle when you are on it. So you can't carry on a bike. Sound like
legal nonsense? Of course it is. But you could get arrested and all the trimmings, and a jury might decide the issue of "in" versus "on". Boy, that's fun, going to trial and paying attorneys fees.
Posted: Mon Oct 08, 2007 9:05 pm
by lrb111
casingpoint wrote:You can carry in a motor vehicle. The gun must be concealed. But one cannot be "in" a motorcycle when you are on it. So you can't carry on a bike. Sound like
legal nonsense? Of course it is. But you could get arrested and all the trimmings, and a jury might decide the issue of "in" versus "on". Boy, that's fun, going to trial and paying attorneys fees.
You can conceal on motorcycle. Bags, trunks strap on packs, under the seat. That is pretty much exactly what we were told by DPS legal. The law does not say you can carry on your person, just in the vehicle.
How's that for gray area?
fwiw, "legal" would not entertain any "what if" questions. example, "what if you need the gun while gassing up?"
So, those that choose to carry concealed without a license are going wading in unknown, and in my opinion possibly tricky legal waters.
Posted: Mon Oct 08, 2007 9:06 pm
by seamusTX
frankie_the_yankee wrote:I don't [think?] that section is obsolete. It was updated in 2005. I do not believe the 2007 law, which allows for concealed carry in a motor vehicle, repealed it.
Please go to
http://www.legis.state.tx.us/tlodocs/80 ... 01815F.htm. This is the enrolled version of HB 1815. There you will see
SECTION 3. The following provisions are repealed:
(1) Section 46.15(h), Penal Code; and
(2) Section 46.15(i), Penal Code, as added by Chapter
288, Acts of the 79th Legislature, Regular Session, 2005.
46.15(i) is the now-obsolete traveling presumption.
There was a sound legislative reason for repealing this clause.
frankie_the_yankee wrote:At any rate, IMO if you OC on a motorcycle in TX, and you're not a cop or other qualifying public official, you're asking for trouble with the law.
I agree.
- Jim
Posted: Mon Oct 08, 2007 9:39 pm
by frankie_the_yankee
Thanks for explaining that.
Posted: Mon Oct 08, 2007 10:16 pm
by srothstein
Here is the complete version of 46.02 as it reads now:
Statute text
(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 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 that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; 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;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
I think 46.15 is too long to post in full, but the important part of it for this discussion is the same that it has always been. That part says that section 46.02 is not applicable if you are traveling.
So, if you are traveling, it has always been legal to carry concealed or open. The confusion for the past two years was that if it was open, the presumption did not apply, but the traveling exception was still there for other ways to meet its requirements. For the purposes of section 46.02, the court would consider (IMHO) riding on a motorcycle to be in a vehicle. This means that if you are on a motorcycle and have the weapon concealed, you can carry around town. If you are traveling across the state (as one example), the weapon would not have to be concealed.
Note that in this law, it specifically says that if you are in a car that you own or control, you may carry a club or illegal knife. DPS may want to interpret it differently, but I would bet it is someone relying on old laws and not really reading the new one.
AS always, I recommend a CHL to avoid most of the problems of people understanding the new laws. I also recommend not being a test case for anyone's interpretation.
Posted: Tue Oct 09, 2007 8:07 pm
by casingpoint
This is the definition of traveling in Texas as it relates to handgun carry. There is some confusion here as to whether or not a gun must be concealed while traveling to be a legal carry without a concealed permit. Read the last sentence. I believe it fully indicates a gun must be concealed while traveling.
Title 46, Penal Code, State of Texas
(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.
Posted: Tue Oct 09, 2007 8:15 pm
by seamusTX
That section of the law no longer exists. It was repealed September 1 by HB 1815. The state web site has not been updated.
The traveling exeption has been there since Reconstruction, though rewritten several times. It does not require concealment.
- Jim
Posted: Tue Oct 09, 2007 8:16 pm
by Liberty
casingpoint wrote:This is the definition of traveling in Texas as it relates to handgun carry. There is some confusion here as to whether or not a gun must be concealed while traveling to be a legal carry without a concealed permit. Read the last sentence. I believe it fully indicates a gun must be concealed while traveling.
Title 46, Penal Code, State of Texas
(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.
These presumptions are old news. They don't exist as of September 1st. While new povisions for car carry have been implimented they are not tied into the traveling provisions which you quoted.
Posted: Tue Oct 09, 2007 10:45 pm
by WarHawk-AVG
Posted: Wed Oct 10, 2007 8:32 pm
by casingpoint
Whoops. I stand corrected. In accordance with the new statute, a handgun in plain view in a car is illegal, but an affirmative defense is the operator is traveling, traveling now being well defined elsewhere in the statute. So a cop can still bust you on the open weapon, and you can affirmatively defend yourself in court. Loads of fun if you can afford it.
But a handgun not in plain view inside a vehicle is not a violation, so as long as it is hidden, consequently there is no basis for prosecution. Is this correct? It seems to solve a lot of potential problems with vehicle carry if one has not CHL.
Posted: Wed Oct 10, 2007 9:04 pm
by seamusTX
casingpoint wrote:But a handgun not in plain view inside a vehicle is not a violation, so as long as it is hidden, consequently there is no basis for prosecution. Is this correct?
Yes.
It has been 40 days now, and no news has come of the new law.
- Jim
Posted: Thu Oct 11, 2007 12:33 pm
by WarHawk-AVG
OK...so the skinny of it is
NO open carry in/on a motorcycle...even when traveling
Thus the individual I saw must have been in law enforcement in one way or another
Thanks guys!
Posted: Thu Oct 11, 2007 12:45 pm
by barres
No. You can open carry on a motorcycle if you are traveling, but you won't get what used to be called the presumption of traveling, because that requires concealment. You will get hassled about it quite likely. And traveling is a defense to prosecution, not an exception, so an arrest and trial would most likely occur.
There, is that as clear as mud?
Posted: Thu Oct 11, 2007 5:54 pm
by Liberty
barres wrote:No. You can open carry on a motorcycle if you are traveling, but you won't get what used to be called the presumption of traveling, because that requires concealment. You will get hassled about it quite likely. And traveling is a defense to prosecution, not an exception, so an arrest and trial would most likely occur.
While I will admit there is certainly a risk. And that open carry on a motorcycle is a bad idea. I don't believe arrest and a trial would be a likelihood. Most LEO understand the traveling presumption pretty well. I believe most would tell you to put it away, rather than arrest.