TexasCHLforum.com

hmb wrote: In my opinion, someone without a CHL who goes around the block to the local 7-11 and carries his pistol with him in his car is clearly NOT traveling, under any stretch of the imagination, and will be dealth with as such in our jurisdiction.

Please explain to me this then;


Texas Penal Code
§46.02. Unlawful carrying weapons.

(a) A person commits an offense if he intentionally,
knowingly, or recklessly carries on or about his person a handgun,
illegal knife, or club.



§46.15. Nonapplicability.



(b) Section 46.02 does not apply to a person who:



(3) is traveling;






Maybe you have not had your Continuing Education yet;

In the regular session of the 79th Legislative Session in Texas, House Bill 823 was passed.

It reads



SECTION 1. Section 46.15, Penal Code, is amended by adding
Subsection (i) to read as follows:
(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.

If I meet those 5 requirements how do you, as a person sworn to uphold the law and not your own beliefs, state that it matters where the person was going or for how long?

txinvestigator wrote:If I meet those 5 requirements how do you, as a person sworn to uphold the law and not your own beliefs, state that it matters where the person was going or for how long?

As an extension to TXI's question, I want to also ask this. Please realize I'm not just trying to be silly or start an argument. What about a non-CHL simply sitting in a car? That does not sound like travelling, but fulfills every legal requirement of the law. HB823 does not say anything about the person moving. They could be stopped at a light, or just sitting in there car outside their house/apartment. What section of Texas law would this person be arrested under? If I read HB823 in plain English (as I believe it was meant to be written) I see nothing legally wrong with a non-CHL taking a handgun for protection to 7-11, or even just sitting in their car.

<~~~~~~~ anxiously awaiting hmb's reply to txinvestigator's question

gigag04 wrote:<~~~~~~~ anxiously awaiting hmb's reply to txinvestigator's question

A fine question indeed.

One more waiting. Seems like it is plenty easy for 100's or even several 1,000s of law abiding citizens w/o all that paper on the wall to understand these 5 simple statements. If the guy going around the block to the stop & rob is CLEARLY not traveling, how far does he have to go before he is vaguely traveling? Then how many more miles to finally being CLEARLY traveling? Suddenly we are right back to the old officer discretion deal of how far are you going where is your destination & different courts & different juries deciding how far & why are you going there to be the criteria of traveling. Once had a fellow tell me that visiting family was not TRAVELING no matter how far. Vacation was traveling. I am just not smart enough to believe that. Real answer is get a CHL & carry it 24-7.

KBCraig wrote:

hmb wrote:Just reviewed this thread, and have the following comments. I am an elected prosecutor in Texas.

Oh, boy. This is going to be fun!

Prosecutors follow the law, and not the wishes of those who sit on the sidelines.

So, can you please reconcile this with your next sentence?

In my opinion, someone without a CHL who goes around the block to the local 7-11 and carries his pistol with him in his car is clearly NOT traveling, under any stretch of the imagination, and will be dealth with as such in our jurisdiction.

And this?

Comment 2: "The way I understand it is no matter where you are going, as long as you meet the 5 items above, you are good to go."

Don't think so. See Comment 1, above. Wishful thinking on the part of some will not make it so.

If prosecutors simply follow the law, as you've said you do, then you won't be prosecuting anyone for UCW if they meet the five elements of travelling. Right? Because despite your opinion, that is what the law says.

Comment 4: "There is now a presumption of traveling if you meet 5 criteria. If you meet those 5 you ARE traveling PERIOD. If you are traveling, then 46.02 does not apply to you, PERIOD." The person who wrote this did not make the law.

But it very conveniently matches what has been said by the people who did make the law.

By the way, we got in this mess, with the 5 steps, etc., because of the Legislature.

The only "mess" is if prosecutors pursue charges of UCW against someone despite the law.

But otherwise, yes, you're quite correct, the Legislature produces lots of messes, and frequently makes bigger messes with their attempts at correction.

Kevin

+1

This "presumed traveling" has been on the books for a long(ish) time now and no cases in court yet? If not, that says something.

txinvestigator wrote: (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. [/b]

If I meet those 5 requirements how do you, as a person sworn to uphold the law and not your own beliefs, state that it matters where the person was going or for how long?

Also anxiously awaiting a response. The definition of traveling seems to be pretty cut and dried, unless, of course, you don't LIKE the definition, and choose to prosecute what you think should be the law. That's rather upsetting, as well it should be.

+ one more

A person is not obligated to do more than meet those five requirements, and to ask for more is trying to amend the law by adding requirement # six, amendments should only be made by Legislators!

Photoman wrote:This "presumed traveling" has been on the books for a long(ish) time now and no cases in court yet? If not, that says something.

Good point and my guess is this. If you get to the point that a officer "finds" your carring a gun in your car you more than likely have bigger problems. I have never had a policeman ask me if I had a weapon in my car or asked to look thru my car. This whole idea of traveling is moot. I believe even Harris county;s sheriff said they will arrest anyway and le the court decide if your traveling..... BUT if it's not in plain view and your not giving them a reason to ask....

I guess we need a test case......?

Don't need a test case. What we need is the elite prosecutors to get voted out & someone who can read the 5 requirements to be presumed traveling, start obeying the law.

Chase a rabbit here that I did not address earlier but really .
Before HMB decided to bow out of this because he was not surrounded by armed balifs & liberal judges he stated that most of the prosecutors he knew were "decent, honest, underpaid, & hard working." I will only address one of these because it is another farse that has been stated so long that the American public has started believing it. I hope hmb is lurking even though unwilling to try to defend the foolish statements made.
Sir you are not under paid. You are an elected public servant. I too am a public servant though not pd w/ tax money. # 1, & #2 apply to me & I have stated it. Pastor Baptist Church for 32 yr now & there are at least as many preachers who do not like me as politicians.
1. No servant decides what he is worth. The master does. In your case the taxpayers.
2. No servant raises his own wages as do politicians. You say you do not raise your own salery. It is not voted on by the public so it is raised by some politicians who raise yours & others so they can justify raising theirs also. Easy enough for every ordinary citizen to see. Only ones that cannot are the ones receiving the tax money.
3. Public servants who are pd w/ tax money do nothing to aid the tax burden of the ordinary citizen. Tax pd public servants tend to erroniously think, "we pay taxes 'like' everyone else." No you don't. Mr. or Mrs. Ordinary Citizen "GENERATES" tax money through production of new goods or services, then pays it. Public servants pd w/ tax money definately provide a service & most of the time a needed one, but they only recycle tax money previously "GENERATED" by Ordinary Citizen.
4. If every public servant was pd what they think they are worth there is no way 2 nations could support your self percieved value any more than a manufacturing company could afford the wages of the employee that says, they don't pay me enough to do that job. (line worker translation of professional term "underpaid")
5. We the people understand the 5 simple statements of traveling. Amazing to us all how some who are degreed way above our reason & understanding think they know more than we do.
5. And yes sir I probably better never come before you in court for any reeason & that changes nothing.

This should not be read as an internet "flame." I adopt our founding Father Thomas Jefferson's words in the Declaration of Independence that he wrote on our behalf to King George & all his Magistrates who knew more about how those colonists ought to be governed than they did. With manly firmness King George was addressed. I should hope this comes across with close to the same firm politness of our mentor & example.

ElGato wrote:A person is not obligated to do more than meet those five requirements, and to ask for more is trying to amend the law by adding requirement # six, amendments should only be made by Legislators!

I agree. Harris County DA Chuck Rosenthal announced that his office would continue to prosecute non-CHL holders found with a handgun in their car. I think that is misfeasance.

All of this was discussed extensively in tx.guns (and for once it was a civil discussion).

I think it will be a long time before a test case emerges. Most people can't afford to go to trial on a misdemeanor. My guess is that they will plea-bargain to disorderly conduct with probation.

- Jim

With that sort of a plea bargain, what does that do to a future ability to get a CHL?

A disorderly conduct is a class C but for the CHL would be treated as a class B misdemeanor, and would cause a 5 yr wait, a person already licensed would lose the license for 5 yrs + 2 [ I think ] + the time it would take to get the case adjudicated.

Only answer is still the same. GET YOU CHL & CARRY YOUR WEAPON.