Quoted: Quoted: and yes i got a ticket for a headlight.. Musta acted like a jerk.  It has to be your fault.

No... no one ,not even the cop acted like a jerk.. .:)


pulled over turned off the truck..

turned on the dome lights ..

never moved my hands from the wheel..

we never even spoke to each other < exect for DL > untill i had signed the ticket..

sweeeeeeet, I could use some nice settlement money from Dallas PD for failing to provide proper training.


*speeds*

Quoted: It's nice when someone takes "safety" beyond the letter and intent of the law and uses "personal beliefs" and gets a nice mark on your arrest record.

I have firsthand experience with inspectors with a certain Federal agency, who do it all the time, and get away with it (not LE agency though).

Quoted: It's nice when someone takes "safety" beyond the letter and intent of the law and uses "personal beliefs" and gets a nice mark on your arrest record.

You kidding? If I ever get arrested, I hope its for something like that. It would be the easiest few thou I ever made. Then I would stop at Jack in the Box every day to tease the arresting officer.

crazy texans!        

Quoted: Yeah, but down here in harris county(Houston for those outside texas) the DA has stated he will prosecute anyone caught with a handgun in there car concelaed unless they have a  CHL. his reasoning being that the new law is BS and he wants to challenge it.

What a jingweed.  The DA does NOT make the laws, only prosecutes violations of them.  If he wants to make laws, tell him to become a legislator and get into the correct branch of government.  

It's shitheads like him that screw up the checks and balances.....alongside the ever present "activist judges".

Small town south of Dallas on I35 not Dallas County but a bedroom community that many Dallas employees live in. Buddy speeds through a construction zone on I 35, 5 year old in baby seat in the back seat of his crew cab, on the back floorboard is a paint ball gun in the shape of an AR. Cop comes up, tells him why he pulled him over, sees the gun, asks no questions, tells him to come to the back of the truck, tells him to turn around, throws cuffs on him and throws him in the back of the squad car.
How many problems can you read in this? Nothing wrong with carrying a long gun. If the cop thought it was real, why did he leave a 5 year old unattended in the vehicle with the gun? Too many other things come to mind - I still can't believe he didn't sue the sh^t out of the local city.

Damn goonboss, I though all you secruity guards thought you were members of the blue brutha'hood

We hashed this issue out several times:  It comes down to the fact that you can beat the rap but you can't beat the ride.

Get a CHL if you want to carry a gun on your person.

Quoted: The DA in Houston has gone on record stating that he will continue to charge people who have concealed handguns in their cars...FWIW

And he WILL call your friends and neighbors and co-workers into court to testify you live in the area and weren't traveling.   He intends to fight this "assumed to be"  with proof the assumption is wrong.

It's a novel approach, but it would SUCK to be the test case.

Quoted: Quoted: The DA in Houston has gone on record stating that he will continue to charge people who have concealed handguns in their cars...FWIW And he WILL call your friends and neighbors and co-workers into court to testify you live in the area and weren't traveling.   He intends to fight this "assumed to be"  with proof the assumption is wrong. It's a novel approach, but it would SUCK to be the test case.

Isn't traveling from your house to the grocery store still "traveling"?  What an asshole DA.

I'm glad we don't need a permit to CCW in our cars here in CO, but I'm sure that will change soon enough with all the Californicators moving here.

No, it is most certainly not travelling.

There was a long thread about this a few months ago.

The change in the wording of the law only causes LEO to presume you are travelling (unless you meet one of the other requirements); that does not mean they cant consficate the weapon and arrest you.  It is still only a defense to prosecution, which means it is still up to the courts to decide (just like always).

So, who wants to be the guinea pig?

Quoted: Quoted: The new law doesn't make it leagl to carry concealed in a carry without a CHL.  It's just a defense from prosecution.  This has been hashed to death in the TX forum.  They can still arrest you, but getting a conviction is a whole 'nother matter. www.concealedhandgun.com/newlaw.htm Agreed.  This has been beat to death time and time again.  The new law does NOT define "traveling"  It simply defines the "presumption of traveling"  One can argue it falls under non-applicability... so therefore the arrest should not take place.... but the judge will be the one to sort that out. Until the law clearly states that it is perfectly legal to carry a concealed weapon in any motor vehicle, PERIOD.... I'd say this cop is right.  It is up to him to enforce the law, which states UCW is illegal in Texas.  He can do his best to determine if you have a valid defense of "traveling" and if he doesn't think so, you get popped.  Pure and simple. I dont agree with it.... but that is why I am waiting on my CHL to come in.  This law didn't change enough in my mind, to make a difference.

NO, it is not a defense to prosecution.  It falls under section 46.15, non-applicability.  It states that section 46.02 (unlawful carrying weapons) does not apply to a person who is travling. Then it states that a person is presumed to be traveling if the handgun is concealed, the person is not a part of a stret gang, the person is not engaged in ciminal activtiy above class C's, the person is on a private motor vehicle and the person is not prohibited from possessing a handgun under Brady.

If they meet those requirements then they ARE travling and a person travling does not have 46.02 apply to them.  

;)

Quoted: The change in the wording of the law only causes LEO to presume you are travelling (unless you meet one of the other requirements); that does not mean they cant consficate the weapon and arrest you.  It is still only a defense to prosecution, which means it is still up to the courts to decide (just like always). So, who wants to be the guinea pig?

ARRGH, it is not a defense to prosecution.  See my post just prior to this.  

And SC, if you meet the requirements of the traveling presumption, if you drive across the street you are traveling.

This officer's attitude is very disappointing, but not surprising.  DPD officers, in general, don't seem to be up
on firearms laws...

TXInvestoigator,

I see two different ways of looking at this change in the law:

1.  My original thought:  Its a rebuttable presumption that the prosecution can overcome.  Thus- traveling would be defined by prior case law- which I have researched and walking across the street or to the store is not traveling.  This is the way prosecutors are looking at the law BTW.

2.  Its an irrebuttable presumption if you meet the requirements of the law:  I was convinced by a couple of non-lawyers on this borad that this may be the proper way to look at the law.  If you look at how TX law treats presumptions, then unless hte prosecution could prove that the defendant fell outside the presumption, the jury WOULD HAVE to presume that he was traveling.  In fact, I think this may be a judge issue and the case may get a directed verdict at the close of the prosecution's case.



Either way, driving across the street or to the grocery store, or to work and back is not travelling as defined by TX case law developed since the 1800s.

Remember- the new law DID NOT define traveling- it didn't have to- it created a presumption of traveling, whatever that may be- that puts the actor into the protection of non-appicability.


Remember, and this is where I got tripped up, you have to go and see how TX criminal law treats a legal presumption.

that is the key to understanding how this law should work.

FYI: It is an addendum to the existing law - the existing law allows for carrying (concealed or otherwise) while traveling (did I say only in a car? no) in any vehicle, horse, on foot, motorcycle, bike, etc...

The addendum creates a presumption of travelling to undo the years of convoluted case law that infringed on the original intent of the law.

I thought you all might like to read a press release from Rep. Terry Keel who authored HB823 which eventually became law.  It appears he, at the very least, clarifies "legislative intent."

TO: Media
FROM: Terry Keel, State Representative, Austin
RE: HB 823 by Keel, Effective 9/1/05
Clarifies Right to Carry Handgun in Vehicle While Traveling
DATE: August 30, 2005

PRESS RELEASE

It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of “traveling”. The legislature has likewise never defined “traveling” because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.

HB 823 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.

HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang.

In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling” where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way.

HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. 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. By enacting this evidentiary standard in conjunction with the presumption, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler.

It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason for a 1997 legislative change which replaced the “defense” of traveling with a classification of the statute of UCW as instead entirely “inapplicable” to a traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term “traveling” was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun while traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling.

In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be “crossing county lines” may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. The new statute instead focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers.

There are several additional important points that should be made in regard to the enactment of HB 823 and its interface with current law.

HB 823 does not give “everyone the right to carry a gun in a car”. State and federal laws applicable to firearms must be noted in conjunction with the new statute’s terms, particularly the limitation of the presumption to persons who are “not otherwise prohibited by law from possessing a firearm.” For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions.

Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction.

The presumption also does not apply where the gun is openly displayed.

The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling----a right to which they are already entitled.

For further information, contact State Representative Terry Keel, 512-463-0652.

HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. 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.

how would they prove you where not "traveling"

since one is presummed to be traveling if the points are meet.. ie. concealed.. not a gang member.....

the only way i can see the presumtion being removed is if you fall into the few reasons that the law states would make you not traveling..    ie.. you state you are within your rights ....   the DA proves you are a gang member..   game over...


but if a texan meets all the requirments that the law states .. then you ARE traveling .. arent you.. ?




In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling” where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way.


this seems to be that plain english explaination......    seems the courts dont speak plain english...



ETA..



law states if you meet the requirments... you ARE traveling....

it does not state if you meet the requirements but are only  going to the store ... too bad not far enoough...   hell thats the whole point to this law isnt it...  



BTW .. cost me 9.87 to fix my headlight    and yes i went to walmart..

Sounds like this cop is itching to get sued for unlawful arrest or some such charge.

Quoted: Quoted: Quoted: The new law doesn't make it leagl to carry concealed in a carry without a CHL.  It's just a defense from prosecution.  This has been hashed to death in the TX forum.  They can still arrest you, but getting a conviction is a whole 'nother matter. www.concealedhandgun.com/newlaw.htm Agreed.  This has been beat to death time and time again.  The new law does NOT define "traveling"  It simply defines the "presumption of traveling"  One can argue it falls under non-applicability... so therefore the arrest should not take place.... but the judge will be the one to sort that out. Until the law clearly states that it is perfectly legal to carry a concealed weapon in any motor vehicle, PERIOD.... I'd say this cop is right.  It is up to him to enforce the law, which states UCW is illegal in Texas.  He can do his best to determine if you have a valid defense of "traveling" and if he doesn't think so, you get popped.  Pure and simple. I dont agree with it.... but that is why I am waiting on my CHL to come in.  This law didn't change enough in my mind, to make a difference. NO, it is not a defense to prosecution.  It falls under section 46.15, non-applicability.  It states that section 46.02 (unlawful carrying weapons) does not apply to a person who is travling. Then it states that a person is presumed to be traveling if the handgun is concealed, the person is not a part of a stret gang, the person is not engaged in ciminal activtiy above class C's, the person is on a private motor vehicle and the person is not prohibited from possessing a handgun under Brady. If they meet those requirements then they ARE travling and a person travling does not have 46.02 apply to them.   ;)

Answer me this.  If you CAN be arrested for UCW (even if "traveling").  And you CAN get thrown in the slammer.  And you can post bond.  And you can show up to your court date.... to present the facts and have the case dismissed.....

How is that not a defense of prosecution?  If you get popped, and taken to jail.... how is that non-applicable?

The non applicability clause has been in there since 97.  And yet still, so many people are arrested for UCW.... and have to have the charges dismissed in court.  Explain to me again how this was not applicable?

Color me stupid, but if you headlight was just out, and no other officer stopped you, how the crap can they give you a ticket???  That's like fining you for a busted windshield when a stone drops off an overpass and you're on your way to the repair shop... WTF?

I had a nice conversation with a DA investigator today from one of hte smaller counties.  

An interesting fact (and I hope I relay these accurately):
1.  He stated that the intake DA was not accepting charges for UCW unless one oof the disqualifiers for the presumption was present

Sounds like a rookie

Now if they could only go back in and edit it one more time......... to add the text of the "legislative intent" statement, and the final section:

§4g (or whatever)
All courts at any level in the State of Texas shall apply the following declaration of legislative intent in any deliberations on the meaning/intent of this section.

Quoted: Make a call or two. See that this is brought to someone's attention. Someone higher up. Shift supervisor? No need for unneccesary arrests to be made. Costs too much on both ends.

I suggest writing a letter to the Watch Commander, Prosecutors office, and your favorite Legislator.  Write the details clearly and to-the-point without being wordy, and CC all three.  Perhaps send a copy to your local NRA representative, too.  Become part of the solution!