Question: New September law..."castle doctrine"

[govnor]

I keep seeing people talk about the new law coming into effect next month. God bless Rick Perry. Anyway, some people are saying that after it goes into effect, the "travelling" situation won't matter anymore for non-CHL holders. Is there something I missed? Will people be allowed to keep a loaded, concealed weapon in their cars after the law takes effect without a CHL?

[jnkirk1974]

Here is all the information on the new bills getting signed into law. It's from the Texas State Rifle Association:

2007 Was Our Best Year Ever For Gun Owners in Austin!
On May 28, the Texas Legislature adjourned "sine die," meaning they had no further business to conduct. For the NRA and Texas State Rifle Association (TSRA), the session was marked with many new travails: unprecedented strife among the lawmakers, opposition of a type and on a scale we had never faced before, and the most ambitious legislative agenda we had ever attempted to pass.

While many groups like the TSRA are happy to pass a single piece of legislation in Austin, we worked on an aggressive pro-gun legislative agenda composed of nine bills, and secured passage by the House and Senate of eight of them! We are pleased to let you know that all of these bills were signed into law by Governor Perry.

The new pro-gun laws we helped pass are:

•Castle Doctrine/"Stand Your Ground" Legislation~SB 378 by Senator Jeff Wentworth (R-San Antonio)/Rep. Joe Driver (R-Garland)
This legislation puts the protection of the law where it belongs: with the law abiding, not the law breaking. If a criminal unlawfully enters or intrudes into your home, occupied vehicle, or place of business, you can presume that he is there to cause death or great bodily harm and you may use any manner of force, including deadly force, against him. The bill also explicitly states in law that you have no "duty to retreat" from a criminal attack if you are in any place you have a right to be and you are not engaged in unlawful activity. Last, the proposal would limit the ability of criminals and their families to sue victims for killing or injuring their attackers. This was signed into law by Governor Perry, the first bill signed into law this legislative session! It will go into effect on September 1, 2007.

•Emergency Powers Act Amendments~SB 112 by Senator John Carona (R-Dallas)/Rep. Frank Corte (R-San Antonio)
This law limits the powers of municipalities to seize or confiscate firearms in times of emergency. This law will ensure that Katrina-style, Mayor Nagin-inspired civilian disarmament will never happen in the Lone Star State. It has been signed into law by Governor Perry and went into immediate effect!

•Replacement for the "Traveling" Law Passed in 2005~HB 1815 by Rep. Carl Isett (R-Lubbock)/Senator Juan "Chuy" Hinojosa (D-McAllen)
Currently referred to as the "Motorists Protection Act"
In 2005, the Texas Legislature passed a bill establishing that a person is presumed to be traveling if he or she is in a private motor vehicle, is not engaged in criminal activity, is not prohibited by law from possessing a firearm, and is not a member of a criminal street gang. The clear intent was to protect law-abiding citizens' right to carry a handgun concealed for personal protection in their cars or trucks without needing a Concealed Handgun License (CHL).

However, some District Attorneys in Texas have thumbed their noses at the intent of the law and have gone so far as to issue public statements that they will arrest anyone found within their jurisdictions to be carrying a handgun in his or her vehicle without a CHL. HB 1815 fixes that problem once and for all.

HB 1815 includes the same safeguards and requirements passed by the 79th Legislature. However, it will no longer be an offense for Texans to have a handgun in their vehicles or vehicles under their control. It passed unanimously in both houses of the Texas Legislature, was signed by the Governor, and goes into effect on September 1, 2007.

•CHL Confidentiality~HB 991 by Rep. Patrick Rose (D-Dripping Springs)/Senator Bob Deuell (R-Greenville)
The bill would prohibit access to information regarding CHL applicants and license holders, except by federal, state, and local law enforcement agencies and their employees. Twenty-six "Shall Issue" states have enacted confidentiality provisions as part of their concealed carry statutes. This bill passed overwhelmingly in both houses and was signed by the Governor on May 23, and went into immediate effect!

•Possession of Handgun by a CHL on LCRA Property (SB 535 by Senator Glenn Hegar (R-Katy))
This bill clarified problems in the state law that could have led to prosecutions of CHL holders on LCRA property and makes permissible the discharge of a firearm for self-defense. It passed without opposition, was signed by Governor, and goes into effect on September 1, 2007.

•TSRA Specialized License Plate Language Change~HB 2045 by Rep. Larry Phillips (R-Sherman)/Senator Bob Deuell (R-Greenville)
This new law will clarify the expenditure process for thousands of dollars raised by TSRA members purchasing special organizational license plates. It passed without opposition, was signed by the Governor, and goes into effect on September 1.

•Laser-sight Hunting of Texas Game Animals for Visually Handicapped Hunters~HB 308 by Rep. Edmund Kuempel (R-Seguin)/Senator Craig Estes (R-Wichita Falls)
Despite media hoopla, Texas is not passing a law to make it legal for blind people to hunt. It is currently legal for anyone with a Texas hunting license, and no handicap is excluded. TSRA supports the passage of HB 308 to create a better hunting experience and more ethical shot for legally blind hunters when hunting with a sighted spotter of a certain age. This bill passed with no opposition, other than that of radio talk show hosts, was signed into law by the Governor on June 15, and went into immediate effect.

•Protect Second Amendment Rights for Foster Parents~SB 322 by Senator Bob Deuell (R-Greenville)/Rep. Dan Flynn (R-Van)
The homes of foster children are regularly and thoroughly inspected for any number of hazards including storage of medicines, power tools, swimming pools, hazardous chemicals, firearms, and even car keys!

However, a new administrative rule developed by Texas Child Protective Services would have called for the removal of all firearms from the property of foster parents with "special needs" children. These CPS rules would have been the most restrictive in the country, even more restrictive than those in New York or California! This regulation would have effectively ruled that foster parents be deprived of their Second Amendment rights and the ability to protect the children in their care. Upon notification of our team by TSRA members who were foster parents, our people picked up the ball and ran with this one. As a result, CPS has been forced to return to the "safe storage" rule that has never been known to cause a death or injury to a foster child. This bill passed overwhelmingly, was signed into law by the Governor on June 15, and went into immediate effect.

[seamusTX]

Will people be allowed to keep a loaded, concealed weapon in their cars after the law takes effect without a CHL?

Yes, with appropriate precautions.

http://www.texasshooting.com/TexasCHL_F ... php?t=7834

This has nothing to do with "castle doctrine" (IMHO incorrectly named), which removes any duty to retreat outside of one's home. That is SB 378, mentioned above.

- Jim

[stoneface]

Okay, I get the "no duty to retreat" part of the castle doctrine, but according to the TSRA's summary of the law above, if a person breaks into your home, occupied vehicle (i.e., carjacking), or business, you are automatically justified in using deadly force without further provocation. Again, this is what they say in their summary. Is this right? I haven't seen the actual language of the bill yet, so I don't know if this is an accurate summary or not.

[frankie_the_yankee]

Okay, I get the "no duty to retreat" part of the castle doctrine, but according to the TSRA's summary of the law above, if a person breaks into your home, occupied vehicle (i.e., carjacking), or business, you are automatically justified in using deadly force without further provocation. Again, this is what they say in their summary. Is this right? I haven't seen the actual language of the bill yet, so I don't know if this is an accurate summary or not.

I would not interpret it quite that way. Nothing is "automatic". In my view, any use of force must be "reasonable". That is, that a reasonable person, knowing what you knew at the time, would have used that level of force.

Now certainly, if someone bashes your door in the situatioon is pretty clear cut. But that was true all along. 'Castle Doctrine' did nothing to change that except extending protection against civil liability to the person employing deadly force.

[seamusTX]

The final version of SB 378 is here. It's important to look at this version, because it shows what has been added and removed.

The key is the phrase "when and to the degree the actor reasonably believes the deadly force is immediately necessary."

If it is possible to use less than deadly force or to retreat, in my amateur opinion, deadly force is not justified.

As a scenario, let's say that you are in your vehicle with the door locked, and someone who is not obviously armed tries to open the door. You can't simply roll the window down and blast him. There has to be some indication that he intends to do you harm, that he is capable of getting in, and that you can't drive away.

All of the above IMHO.

- Jim

[TX Rancher]

If it is possible to use less than deadly force or to retreat, in my amateur opinion, deadly force is not justified.

- Jim

Not sure I agree with the entire sentence Jim...but then again I sure ain't no laywer or judge...so take my thoughts with a large grain of salt...

My disagreement is on the retreat comment. In the bill, it states:

" (c) A person who has a right to be present at the location
where the deadly force is used, who has not provoked the person
against whom the deadly force is used, and who is not engaged in
criminal activity at the time the deadly force is used is not
required to retreat before using deadly force as described by this
section.
(d) For purposes of Subsection (a)(2), in determining
whether an actor described by Subsection (c) reasonably believed
that the use of deadly force was necessary, a finder of fact may not
consider whether the actor failed to retreat.

I feel those statements remove any requirement to retreat from the law.

I agree I still need justification for using force (not just deadly force by the way...).

Please discuss...I would like some additional input...especially if I have it wrong

[seamusTX]

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

I feel those statements remove any requirement to retreat from the law.

I forgot about that.

The phrase "when and to the degree the actor reasonably believes the deadly force is immediately necessary" implies that if there is any way to avoid the use of deadly force while still eliminating the threat, it should be employed.

However, the section you quoted definitely removed any duty to retreat.

No doubt some case law will settle this in the future.

- Jim

[Renegade]

Please consider joining TSRA. Some other good bills did NOT pass. With more members comes more money, and more clout.

[txinvestigator]

The Castle Doctrine only removed the requirement to retreat outside of the home.

All other aspects of using deadly force remain intact. deadly force is only justifiable IF DF under 9.31 is justified AND

TPC 9.32(3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use or
attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.

A lot of written reports on this law are making it appear that the legislature removed the above. They did not.

You still must reasonably believe that deadly force is immediately necessary to protect yourself against the others use of or attempted use of deadly force, or to prevent the IMMENINT commission of one of the listed crimes.

[txinvestigator]

I keep seeing people talk about the new law coming into effect next month. God bless Rick Perry. Anyway, some people are saying that after it goes into effect, the "travelling" situation won't matter anymore for non-CHL holders. Is there something I missed? Will people be allowed to keep a loaded, concealed weapon in their cars after the law takes effect without a CHL?

This is the text of the new law;

SECTION 1. Section 46.02, Penal Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:
(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.

Prior to this, in 2005, the legislature made a "presumption" of traveling if the person met the requirements of a-1 above were met, effectively making all of met that presumption traveling. 46.02 did not apply to a person traveling. Some District Attorney's decided that the courts should still be the ones who decide if a person met the presumption, and stated they would still prosecute.

The author of the bill decided to take that power away from District Attorneys. The result is H 1815, and what you see above.

Now, to arrest, an officer must have probable cause to believe one of these;


(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.

[txinvestigator]

The phrase "when and to the degree the actor reasonably believes the deadly force is immediately necessary" implies that if there is any way to avoid the use of deadly force while still eliminating the threat, it should be employed.


- Jim

Jim, I disagree. It does not use the phrase, "as a last resort". You must reasonably believe that deadly force is immediately necessary.

The key is what was reasonable for a person under the exact same circumstances you were in.

If a person pulls a knife, and I have a long pipe next to me, I am under no obligation to try to use it rather than use my handgun.

[Charles L. Cotton]

The "Castle Doctrine" also creates a presumption that you reasonably believed that deadly force was immediately necessary, if someone unlawfully and with force enters, attempts to enter, removes you, or attempts to remove you, from your home, business (premises under your control), or car. In my opinion, this is the single most important aspect of the "Castle Doctrine." The removal of the retreat duty and the additional civil liability protection are certainly important, but the "presumption" is huge.

Chas.

[seamusTX]

If a person pulls a knife, and I have a long pipe next to me, I am under no obligation to try to use it rather than use my handgun.

We'll have to see how DAs handle situations when the new law goes into effect. Fortunately, cases like those of Gordon Hale and Harold Fish are few and far between.

- Jim

[txinvestigator]

If a person pulls a knife, and I have a long pipe next to me, I am under no obligation to try to use it rather than use my handgun.

We'll have to see how DAs handle situations when the new law goes into effect. Fortunately, cases like those of Gordon Hale and Harold Fish are few and far between.

- Jim

That is no different from how the law has been for over decades.