HB 823 (traveling definition) removes previous case law?

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HB 823 (traveling definition) removes previous case law?

Postby largelybored » Wed Jun 01, 2005 1:16 pm

Since HB 823 defines traveling as:

(1) in a private motor vehicle
(2) not otherwise engaged in criminal activity
(3) not prohibited by law from posession
(4) not a member of a criminal street gang
(5) not carrying a handgun in plain view

Does it remove the established case law that would not have the above restrictions?

For example, prior to HB 823, traveling is only defined under case law, and includes a number of requirements, such as multi-county trips, overnight trips, going to the gunsmith, etc.

It is my understanding that open carry while traveling was ok under the previous case law. Such as open carrying is now legal under the sporting exemption.

( I use exemption, because right this second I don't remember if it was an exception or defense to prosecution.)

Since all the previous case law was based on the vacuum of legislative definition, would the passing of HB 823, wipe out all the previous case law?

Additionally, if one fell under the traveling exemption as defined under HB 823 AND the person had a CHL. Would they not be required to inform an officer they were carrying during a traffic stop? I believe the law states that you must inform while carrying under the CHL statute and the officer 'demands' your identification. Since you could be carrying under the traveling exemption, and not the CHL statute, you would not be required to notify. Such as you would not be required to notify while on your premise, or if you were a peace officer who also had a CHL.

What do ya'll think?
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Postby Charles L. Cotton » Wed Jun 01, 2005 2:22 pm

HB823 effectively, though not expressly, overturns prior case law dealing with the scope of the term “traveling,� but only insofar as we are talking about traveling in a “private motor vehicle.� No longer does someone traveling by private motor vehicle have to try to guess what constitutes “traveling� in the counties through which they plan to drive. The case law held everything from crossing a single county line to crossing multiple county lines, requiring an overnight stay and not being a normal route (i.e. traveling salesman). If you are in your car, and meet the other requirements, then you are presumed to be traveling, even if you’re just going to the store for a gallon of milk.

However, the old case law is still applicable if you are traveling by a method other than in a “private motor vehicle.� Examples include bicycle, walking/hiking, boat, etc. True, most people don’t “travel� by bicycle or on foot in the conventional sense, but some do. (My oldest son often rides his bicycle a 100 miles or more in races, sometimes over more than one day.)

On the issue of a CHL notifying a LEO you are armed if asked for an ID, I think the courts will likely hold that the CHL notification requirement still applies, in spite of HB823. HB823 is silent on the issue, so it does not override the CHL statute by timing and implication. Secondly, the notification requirement is in the CHL statute, applies to all CHL’s, and makes no exceptions. I have been asked if the concealment requirement applies to a CHL carrying his handgun on his own property. I do not believe there are any cases on point, but when on your own property, you are not carrying pursuant to the CHL statute, thus I do not believe the appellate courts would uphold a conviction for failure to conceal. (I also doubt a reasonable DA would accept the charges.) The same argument could be made about the notification requirement when stopped by a LEO, but I think it’s more likely with that fact pattern that the charges would be accepted and the appellate courts would uphold the conviction. The rationale would be that “the specific controls over the general� combined with a recognition of the actor being on his own property.

Remember, until we see some appellate opinions, if any are forthcoming, this is merely Cotton On The Law, which is worth every penny you've paid for it.

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Postby largelybored » Wed Jun 01, 2005 2:49 pm

Being that a first offense for failure to notify is a non arrestable, administrative suspension only. (and I argue all failure to notify violations are non arrestable, unless the officer has knowledge that you were previously suspended).

Could one risk not informing the officer, and only be in jeopardy of the administrative suspension? Then any appeal would be against the administrative suspension and not a criminal charge.

I realize that the officer would know if the registered owner has a CHL, and might ask if you were carrying a firearm. You could say no, or you could say yes, but I am traveling. :)

Alternatively, you could leave your CHL at home while driving. Officer pulls you over, runs your plate and knows you have a CHL. How can they argue that you are carrying under the CHL statute if you do not have the CHL in your posession as you must in order to be afforded its protection?

Either you choose not to carry the CHL, and fall under traveling, or you carry it, and choose not to fall under its protection by not following its rules.

I would expect the courts to rely on *any* available statute that removes jeopardy, versus, relying on the one that imposes it and ignoring all others.
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Postby DFC » Wed Jun 01, 2005 6:41 pm

Here is what seems strange to me. My employer has valid 30.06 signs at every entrance of the parking lots. With a valid CHL I cannot enter the parking lot and leave my gun locked up in my car but someone who does not have a CHL can leave their gun locked up in the car. In otherwords these signs at parking lots need to go.
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Postby largelybored » Thu Jun 02, 2005 7:38 am

No offense DFC, but it is considered impolite to hijack a thread by posting on a tangent.

Regardless, my thought is that perhaps you can circumvent the signs by transporting the firearm unloaded and not within reach, ie in the trunk.

The point being that you are not carrying under the authority of the CHL law.

I realize this complicates getting access to the handgun, and you wouldn't be able to strap it on as soon as you get into the car.

Edit: After reading a few other posts on the message board, my understanding has muddied. Perhaps Charles can comment if 'premise' under 30.06 includes the parking lot or not, even if the 30.06 is posted at the entrance of the parking lot.
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Postby DFC » Thu Jun 02, 2005 8:25 am

Sorry, I was not trying to hijack this thread my point was that a person without a CHL could legally carry a "loaded & concealed" handgun places now that someone with a CHL could not. If you lived in the Plano school district and were dropping your child off at school which have 30.06 posted at the parking lot entrances it would be the same situation. (I understand that they could not legally prosecute you but I wouldn't want to be a test case).
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Postby dolanp » Thu Jun 02, 2005 8:32 am

That does bring up an interesting scenario. You would have a good defense if your gun was concealed in your car and you were prosecuted for 30.06, however if it was concealed then they wouldn't find it eh? :wink:

In theory though it seems your situation would default to the protection of 'traveling' as long as the gun remained in the car and out of sight. I am no lawyer though and it may take a court case to hammer that out.
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Postby largelybored » Thu Jun 02, 2005 9:17 am

It was my understanding that HB823 (definition of traveling) was passed by the legislature, but was not signed yet by the governor and therefore not the law yet...

DFC, I apologize for saying you were hijacking the thread, I did not realize you were talking about the traveling exemption in your scenario.
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Postby dolanp » Thu Jun 02, 2005 9:52 am

True, I am going on the presumption of his signature and an effective date of 9/1.
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Postby txinvestigator » Thu Jun 02, 2005 6:14 pm

The "premises" definition that excludes parking lots ONLY applies to those locations listed in 46.03 and 46.035.

A private entity (business or residence) not listed in those sections CAN prohibit parking lot carry.

The duty to inform a LEO that you are carrying applies regardless of under what authority you are carrying. (411, govt code, or a non-applicability under TPC 46.15)

§ 411.205. DISPLAYING LICENSE; PENALTY. (a) If a
license holder is carrying a handgun on or about the license
holder's person when a magistrate or a peace officer demands that
the license holder display identification, the license holder shall
display both the license holder's driver's license or
identification certificate issued by the department and the license
holder's handgun license. A person who fails or refuses to display
the license and identification as required by this subsection is
subject to suspension of the person's license as provided by
Section 411.187.
(b) A person commits an offense if the person fails or
refuses to display the license and identification as required by
Subsection (a) after previously having had the person's license
suspended for a violation of that subsection. An offense under this
subsection is a Class B misdemeanor.


And I would not count on the fact that a police officer would know he should not arrest for first offense of fail to notify.

I posted here about an incident I had with DPD regarding this.
:(
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Postby largelybored » Thu Jun 02, 2005 8:21 pm

So, the way I understand that is if I have an out of state permit, and left it out of state, and that state has reciprocity with Texas, I must inform and show the peace officer the license I don't posess even though I am traveling.

????

The duty to inform is on a license holder. A license holder is defined as one licensed to carry a handgun under the act.

(b) The governor shall negotiate an agreement with any other
state that provides for the issuance of a license to carry a
concealed handgun under which a license issued by the other state is
recognized in this state or shall issue a proclamation that a
license issued by the other state is recognized in this state if the
attorney general of the State of Texas determines that a background
check of each applicant for a license issued by that state is
conducted by state or local authorities or an agent of the state or
local authorities before the license is issued to determine the
applicants' eligibility to possess a firearm under federal law.

Is an out of state permit holder a license holder under texas law?
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Postby KBCraig » Fri Jun 03, 2005 11:06 pm

largelybored wrote:So, the way I understand that is if I have an out of state permit, and left it out of state, and that state has reciprocity with Texas, I must inform and show the peace officer the license I don't posess even though I am traveling.


If you're carrying a concealed handgun, yes.

Even if your home state doesn't require you to have the license on your person while carrying, I can't fathom carrying in another state without the license. Since other states won't have access to your state's database, how would you show that you're licensed?

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Postby largelybored » Sat Jun 04, 2005 3:26 pm

Kevin, my point is that you shouldn't have to show that you are licensed while traveling, or carrying under any other exemption under the law, like on private property, or target shooting/hunting.
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Postby Greybeard » Sun Jun 05, 2005 7:31 am

Quote: "Kevin, my point is that you shouldn't have to show that you are licensed while traveling ... "

This is all quite interesting. I'm anxious to go back to DPS' CHL instructor renewal school in a few months to hear their legal beagles' interpretation of this - and what they expect us to teach. I sincerely doubt they are going to take the position "you shouldn't have to show that you are licensed while traveling ..."

As most CHL holders already know, one does not HAVE to show the CHL if the handgun is not present. But, when an officer goes back to his/her vehicle and runs the DL for any outstanding warrants, "CHL holder" will most likely show up on the computer. And most LEOs typically ain't happy campers when they return to continue with a CHL holder who failed to mention in the initial interaction. In reality, I doubt many of 'em are going to be in much of a mood to discuss with a CHL holder the new "traveling" intepretation on the shoulder of the road ... :wink:

If a CHL holder, why not just show 'em both the DL and CHL and be done with it? :?:
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Postby largelybored » Sun Jun 05, 2005 8:45 am

Greybeard wrote:
If a CHL holder, why not just show 'em both the DL and CHL and be done with it? :?:


You're absolutely right Greybeard. I have a habit of being pedantic about the law. I was somewhat unpopular in the police academy because of this and my interest and prior knowledge of civil rights.

Regardless of how courteous one is during a traffic stop, (I have always informed the officer I was carrying and showed my out of state permit), I think its important to understand the subtlety of the law because its the subtlety that most officers don't understand and act upon.

Just recently, a guy returning from an annual shooting/bbq/camping gathering was stopped by Austin Park Police for a faulty license plate light. He had firearm parts in his back seat. He does not have a CHL recognized by the state of TX. He refused consent, they searched anyway and found two handguns under the seat.

He tried to plead the traveling (current interpretation) exemption and the officer stated the traveling exemption only applies if the firearms are in the trunk.

He will either get off on the historical traveling exemption or the sporting nonapplicability.

Regardless, the lack of understanding of the finer points of the law led to him spending some time in the Travis County jail, and his firearms won't be returned until after they are ballistically tested to see if they were used in a crime.

Please let us know what you hear from DPS.
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