Moderator: carlson1
None. I know there is a concern that some DA's will still push law enforcement in their counties to make arrests and that they will try to prosecute. I do not share that concern, because the change to TPC §46.02 is a "sea change" when it comes to arrest and prosecution.seamusTX wrote:What legal basis will the DAs use for prosecution? What specific charge will they make?nitrogen wrote:Nothing will change. Meaning arrests for legal car carry will continue in the areas where it was pushed by the local DA's.
- Jim
I agree 100%. The concept of "Blood in the Streets" is repugnant to good people - and especially to those who have considered using force to defend thier lives: gun owners.seamusTX wrote:Starting September 1, it will be legal for anyone who is not prohibited from possessing a handgun to carry one in a car that he owns or is in control of.
As we have discussed, there is no age limitation in the law.
The usual predictions of "Dodge City" and "blood in the streets" are being made.
Will this come to pass?
I say no......
- Jim
There was no prior case law for traveling. And since 05, meeting the presumption meant you WERE traveling, period.stroo wrote:I put nothing will change but actually I think there may be a slight downtic in murders and assaults in road rage incidents.
I really like this new law in part because the fix for the traveling law was pretty fatally flawed for a couple reasons. First as Charles pointed out the defendant had to prove up the elements of the presumption. But more importantly, even if that was accomplished, I believe the prosecution could rebut the presumption with evidence showing that you were not actually traveling. For example, I live in Coppell which is public record and easily available to any prosecutor. If I were arrested at the Kroger's in Coppell, I think any competent prosecutor should have been able to convince a jury that I wasn't "traveling" as defined by prior case law since I didn't appear to have left Coppell.
Right now, even if you have a CHL you could be arrested for UCW "if a cop wanted to", just as much as he could arrest you under the new UCW law.govnor wrote:So as I understand it, carrying a concealed handgun in your car without a CHL is now legal after the 1st. Obviously if you are up to no good or drunk driving and have a gun you are in trouble. I'm talking about the average guy going about his business with his Glock or 1911 in the glove box or something.
If he gets pulled over for speeding and the officer asks if he has a weapon, he says yes, could he still be arrested for it? I mean if no other arrestable offense has been committed? Obviously you could beat it in court, but you'd still have to go to jail and be inconvenienced.
An arrest is not lawful if does not meet the statutory reuirements of the Code of Criminal Procedure. If the LEO does not have probable cause to believe that you committed the elements of a crime, he cannot lawfully make a warrantless arrest.Texas Penal Code
§ 39.03. OFFICIAL OPPRESSION. (a) A public servant
acting under color of his office or employment commits an offense if
he:
(1) intentionally subjects another to mistreatment or
to arrest, detention, search, seizure, dispossession, assessment,
or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the
exercise or enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful;
Case law is created at the appellate level. Case law means OTHER courts are held to that decision, definition or whatever. In courts of original jurisdiction where you have read decisions, no other court is bound by those decisions; thus, no case law.stroo wrote:TXI
I have read several court opinions on traveling going back over the last hundred years. There was case law on it. Unfortunately the cases were not very consistent. Having said that I don't think any of the courts that issued opinions under the traveling law would have had any problem finding that I was not traveling if I went to the grocery store in the same city I lived in.
Yes, if you met the presumption, you were traveling. The law even said so. Traveling was NEVER defined; however, the presumption said that a person was "presumed" to be traveling if he met certain requirements, none of which were distance or destination. So you met the five elements the presumption was that you were traveling. Since the law was silent on distance or destination, neither mattered.Meeting the presumption as I read the law did not mean you were traveling period. A presumption is always rebuttable unless the law clearly states that it is unrebuttable. Texas law did not clearly state it was unrebuttable.
The "presumed fact" as stated above is that the person was "traveling".Texas Penal Code
46.15
(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.
2.05
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(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; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) if the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
