Locked in trunk, not travelling - CHL vs. no CHL

[PatrickS]

OK, here's another question that's been rattling around in
my head for awhile.

If I don't have a CHL, I think it's pretty much agreed that if I
were to put my handgun in the trunk of my car and go to
work, with the intention of heading to the practice range after
work, that that would be a no-no (not travelling, and not
transporting directly to/from the premises of a sporting activity).

Now, I have seen in numerous places discussion about when
CHL holders have to leave their handgun e.g. locked in the
trunk of their car to visit some building or location where
concealed carry is not allowed, e.g. going to work where one
can't carry at work, so one leaves the gun in the car while
at work, etc.

OK, so can someone please tell me how/why it's legal for a CHL
holder to leave a handgun locked in the trunk of their car while
at work, but it wouldn't be legal for a non-CHL holder to leave
a handgun locked in the trunk of their car while at work?

(please no arguments about the new law which "presumes"
one is travelling, etc. -- let's say it's clear/agreed that I'm not
travelling)

Why is it different for a CHL holder than a non-CHL holder (or
is it?) It seems that in both cases, access to the gun is equally
controlled and since the owner is absent from the vehicle (regardless
of whether they have a CHL permit or not) how is legality affected
by the CHL rights of the *absent* owner?

Or is this simply one of the many "bizarre" features of the
Texas gun laws?

Cheers,

Patrick

patrick.stickler@gmail.com

[Lumberjack98]

I think it's pretty much covered here:

http://www.texasshooting.com/TexasCHL_F ... highlight=

Technically, the fact that you left you house means that you are traveling (yes, I heard you , no arguments).

[KBCraig]

Locked in the trunk is not "on or about" your person. UCW, CHL, travelling, direct route, et al., would not apply.

[ghentry]

That's a very good question Patrick. I've never thought about that. I'm curious now. I'm sure Charles or txinvestigator could answer this one.

[PatrickS]

[quote="Lumberjack98"]I think it's pretty much covered here:

http://www.texasshooting.com/TexasCHL_F ... highlight=

Technically, the fact that you left you house means that you are traveling (yes, I heard you , no arguments).[/quote]

That's not my interpretation of the law, nor of the many precidents on the books. Driving 4 miles to work and back is not "travelling". True, the new laws put the burden on the justice system to prove I wasn't travelling, but I think it would be pretty easy and quick to convince a jury that driving 4 miles to/from work is not travelling.

At least that's the way I've understood it (though I certainly could be wrong).

Cheers,

Patrick

[Lumberjack98]

That's not my interpretation of the law, nor of the many precidents on the books. Driving 4 miles to work and back is not "travelling". True, the new laws put the burden on the justice system to prove I wasn't travelling, but I think it would be pretty easy and quick to convince a jury that driving 4 miles to/from work is not travelling.

Here you go. Seems pretty clear, though a little off of your original question.

(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.

I agree with KBCraig regarding it being in your trunk though.

I also think that in order to mitigate any potential problems, you should pursue obtaining a CHL.

[PatrickS]

[quote="Lumberjack98"][quote="patrickstickler"]That's not my interpretation of the law, nor of the many precidents on the books. Driving 4 miles to work and back is not "travelling". True, the new laws put the burden on the justice system to prove I wasn't travelling, but I think it would be pretty easy and quick to convince a jury that driving 4 miles to/from work is not travelling.[/quote]

Here you go. Seems pretty clear, though a little off of your original question.

(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.

I agree with KBCraig regarding it being in your trunk though.

I also think that in order to mitigate any potential problems, you should pursue obtaining a CHL.[/quote]

No, I think you're missing my point. I was specifically speaking of
that particular text (and didn't feel the need to include it explicitly).

If you read the opinions/summaries of various judges and lawyers,
all the above text does is reverse the presumption -- i.e. before, a
person was presumed guilty until *they* proved they were innocent
(travelling) but now, a person is presumed innocent until the
*state* proves they are guilty (not travelling).

Even if one meets all 5 of those tests, they still might NOT be travelling
and thus still be guilty of illegal carry. All those tests do is provide
a basis for presuming innocence, not establishing innocence.

In the scenario I described in my original question, I would NOT
be considered to be travelling (regardless of whether I pass those
5 tests and initially am presumed to be travelling) and thus, stopping
for work on the way to/from the practice range would not be
acceptable. My question was specifically about the legality of leaving
a loaded handgun locked in one's trunk -- about why it's not legal
for a non-CHL holder but is (presumably) legal for a CHL holder.

I see alot of folks telling alot of other folks that the new law makes
car carry legal, and I think that that is going to get alot of folks in
trouble. From what I've understood from the legal summaries, nothing
at all has changed regarding non-CHL car carry except the shift
in presumption of innocence. If a LEO has any reason to doubt that
you are actually "travelling", or simply doesn't want to be bothered to
make that determination, you can still be hauled to jail, but now
the state has to prove you weren't travelling rather than the other way
around, as before, when you'd have to prove you were in fact travelling.

The new law does not make it legal to carry a gun in your car all
the time, irregardless of where you are going.

(at least, that is my understanding of the concensus of legal experts)

Cheers,

Patrick

[Lumberjack98]

Roger.

Geez, this is tough...I've been searching all over the web for some kind of answer to this trunk question and everything I see is talking about a concealed loaded weapon inside the vehicle (I presume this means within reach and not in the trunk).

Charles, txinvestigator...got anything?

[txinvestigator]

Roger.

Geez, this is tough...I've been searching all over the web for some kind of answer to this trunk question and everything I see is talking about a concealed loaded weapon inside the vehicle (I presume this means within reach and not in the trunk).

Charles, txinvestigator...got anything?

OK, here is the Texas Law'


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.

About your person is defined as any area within you immediate access and includes the passanger compartment of a motor vehicle.

So you would not be in violation have a handgun in the trunk of your vehicle. Period. ;)

[Charles L. Cotton]

So you would not be in violation have a handgun in the trunk of your vehicle. Period. ;)

That's my understanding as well.

Chas.

[PatrickS]

[quote="Charles L. Cotton"][quote="txinvestigator"]So you would not be in violation have a handgun in the trunk of your vehicle. Period. ;)[/quote]

That's my understanding as well.

Chas.[/quote]

OK. Hmmm.... Perhaps I've then misunderstood a key point here,
namely "on or about your person".

If locked in the trunk is not "on or about your person" would it
then be legal to e.g. lock a handgun in the trunk of ones car,
go to work, go to the movies, do a bit of shopping, etc. and
afterwards go to the shooting range? I.e. is the bit of the law
that names the various exceptions, one of which being transport
to/from the premises of a sporting activity, only apply to cases
where transport has that handgun "on or about" one's person?

I had understood it to mean anywhere, including in a locked
trunk. Perhaps I've then misunderstood.

???

Patrick

[Kalrog]

I think you did make it more complicated than it needed to be. There may be states where having a loaded pistol with you in any way shape or form is illegal. Texas is not one of them. Locked in your trunk means not accessible and not "on or about your person". So you are perfectly legal to go out, get a handgun, load it, put it in your locked trunk, and leave it there for 10 years (never leaving the state) with no intention of ever going to the range with it. But if you have that kind of spare money, would you buy me a new gun too?

[Paladin]

Mr. Cotton, KBCraig, and txinvestigator are correct.

Below is some case law from the Harris County DA's office:

"Crain v. State, 153 S.W. 155 (Tex. Crim. App. 1913) It is a violation of the law to carry a pistol, even though one should place one part of it in one pocket and another part in another pocket.
Spears v. State, 17 S.W.2d 809 (Tex. Crim. App. 1929) “Officers searched an automobile driven by appellant and found therein a pistol in the pocket of the door on the right-hand side.� “The Legislature must have meant something when it used the words ‘on or about the person,’ and on principle using the word ‘about’ in its ordinary meaning, taking into consideration the context and subject matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could without materially changing his position get his hand on it.�
Franklin v. State, 183 S.W.2d 573 (Tex. Crim. App. 1944) “Peace officers apprehended appellant driving his automobile along a public highway. In the glove compartment of the car they found a pistol, This is the State’s testimony and is sufficient to show a prima facie case of guilt.�
Hutspeth v. State, 254 S.W.2d 130 (Tex. Crim. App. 1953) “Proof that appellant carried a pistol in the glove compartment of his car warranted conviction of carrying on or about his person a pistol.� Same result in Courtney v. State, 424 S.W.2d 440 (Tex. Crim. App. 1968)
Allen v. State, 259 S.W.2d 225 (Tex. Crim. App. 1953) Pistol found on seat of truck was sufficient to sustain conviction for carrying pistol on or about person.
Tunnell v. State, 263 S.W.2d 776 (Tex. Crim. App. 1954) Pistol found on floorboard of appellant’s car sufficient to sustain conviction.
Booth v. State, 344 S.W.2d 885 (Tex. Crim. App. 1961) Pistol in locked glove compartment sufficient to sustain conviction.
Welch v. State, 262 S.W. 485 (Tex. Crim. App. 1924) Pistol in handbag on floor of vehicle
driven by appellant sufficient to sustain conviction. Same for pistol in briefcase inside car. Freeman v. State, 864 S.W.2d 757 (Tex. App.-Houston [1st District] 1993, pet ref’d)
Thibodeaux v. State, 628 S.W.2d 485 (Tex. App-Texarkana 1982) “The State is not required to prove an unlawful purpose or intent. The statute makes the carrying unlawful unless the defendant brings himself within one of the exceptions to the offense.�
Christopher v. State, 819 S.W.2d 173 (Tex. App.-Tyler 1991, pet. ref’d) “The fact that the gun was unloaded is not a defense.�
Contreras v. State, 853 S.W.2d 694 (Tex. App.-Houston [1st District] 1993) “The statute requires only a particular form of possession: carrying on or about the person, which includes, in our modern view, the interior of one’s vehicle.�

Under the statutes and the case law interpreting the statutes it is illegal to carry a pistol, club or illegal knife on your person or generally inside the passenger compartment of your vehicle including the glove compartment. This applies even though the weapon is taken apart or unloaded. If you need to transport a handgun you may do so in the trunk of a vehicle."

[txinvestigator]

Under the statutes and the case law interpreting the statutes it is illegal to carry a pistol, club or illegal knife on your person or generally inside the passenger compartment of your vehicle including the glove compartment. This applies even though the weapon is taken apart or unloaded. If you need to transport a handgun you may do so in the trunk of a vehicle."

Yep. If you meet one of the sections of 46.15, then you can carry "on or about your person".

[Paladin]

Under the statutes and the case law interpreting the statutes it is illegal to carry a pistol, club or illegal knife on your person or generally inside the passenger compartment of your vehicle including the glove compartment. This applies even though the weapon is taken apart or unloaded. If you need to transport a handgun you may do so in the trunk of a vehicle."

Yep. If you meet one of the sections of 46.15, then you can carry "on or about your person".

Well that text was from the Harris county DA... who has a rather restrictive interpretation of things. I don't want anybody to think it's my personal opinion.