TexasCHLforum.com

cb1000rider wrote:I don't remember that, but I suspect that it wasn't all law enforcement...

Charles L. Cotton wrote:Here's another one. This one is more explicit concerning HPD following Rosenthal's lead.

Chas.

Aug. 30, 2005, 1:35AM
DA opposed to new handgun law
Pistol-toting drivers without a permit will still be prosecuted, Rosenthal warns

By CLAY ROBISON
Copyright 2005 Houston Chronicle Austin Bureau

AUSTIN - Motorists arrested for carrying pistols in their cars without a concealed handgun license will continue to be prosecuted in Houston, despite a new law that purports to give them a legal defense, Harris County District Attorney Chuck Rosenthal said Monday.
Although the sponsor said the law should reduce the number of arrests for unlawful handgun possession, Rosenthal said it won't change enforcement practices in Houston after it goes into effect on Thursday.

"It is still going to be against the law for (unlicensed) persons to carry handguns in autos," the district attorney said, adding that the new legal defense can still be challenged by prosecutors.

The new law, enacted during the regular legislative session last spring, seeks to clarify a longtime law that allowed Texans to carry handguns while traveling, a qualification that was subject to a number of inconsistent court interpretations over the years.

The new statute says a person is "presumed to be traveling" if he or she is in a private vehicle, is not engaged in criminal activity (except for a minor traffic offense), is not prohibited by any other law from possessing a firearm and is not a member of a criminal street gang.

It also requires the handgun to be concealed in the car, although weapons can be discovered by officers during routine traffic stops if a driver gives permission for a car to be searched or opens a glove compartment where a gun is secured to retrieve an insurance card or other documentation.

"The intent of the law is to keep innocent people from going to jail," said the sponsor, Rep. Terry Keel, R-Austin, a former prosecutor and former Travis County sheriff who now is a candidate for the Texas Court of Criminal Appeals.

The law, House Bill 823, was supported by the National Rifle Association and the American Civil Liberties Union and opposed by various law-enforcement groups.

More than 237,000 Texans have concealed handgun licenses. But many other law-abiding adults don't have licenses because they are disqualified by exceptions that have nothing to do with public safety, said Alice Tripp, a lobbyist for the Texas State Rifle Association, an NRA affiliate.

Tripp said people who have defaulted on student loans, who owe the state sales tax or franchise tax payments or are behind in child support payments are ineligible to receive a license.

Keel said he hoped the law will prompt police officers to think twice about arresting motorists who meet the new legal presumption and spare them the expense and "indignity" of arrest and prosecution.

Otherwise, he said, "They basically are going to arrest innocent people and make them prove their innocence."

Rosenthal and Rob Kepple, executive director of the Texas District and County Attorneys Association, disagreed.

Rosenthal said the new presumption about "traveling" doesn't define what constitutes traveling and can be challenged in court by prosecutors, leaving it to juries to decide verdicts "based upon the facts of the case."

A prosecutor could summon witnesses to successfully argue that a defendant wasn't traveling because he was simply "driving around the corner for a carton of milk," Kepple said.

"I really don't think (the law) should affect how police officers respond in arresting somebody," he [Rosenthal] added.

Houston Police Department spokeswoman Johanna Abad indicated Houston police were going to take their advice from Rosenthal's office.

Unlawful possession of a weapon is a class A misdemeanor punishable by as much as one year in county jail and a $4,000 fine. Rosenthal said most cases are resolved through plea bargains.

The prosecutor said he asked Gov. Rick Perry to veto the bill because "taking weapons off the street is a pretty good deal." He said his office handled about 5,000 weapons cases of varying degrees of severity last year.

Tripp called Rosenthal's opposition a case of "sour grapes ... and a threat to the general public."

clay.robison@chron.com

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http://www.chron.com/CDA/archives/archi ... 05_3899161

srothstein wrote:I think he has an interesting point and might be right. I don't believe he is right, but he might be. We need to remember that the general law is that it is illegal to carry a pistol if you are off your own property. That is PC section 46.02. Section 46.15 says that 46.02 does not apply to a CHL. Normally, I would say this means it is legal and you cannot be accused of violating 46.02. But, and this is an important but, I have a vague recollection of a problem once before with the wording of the law. I remember some court case that said there were only defenses (including affirmative defenses) or exceptions which must be stated as exceptions to the law. The wording "does not apply" does not fit into either of these categories. I hope Charles can remember this case better than I can and can tell us the actual terms and rulings and what it might mean in this debate.

There are old SCOTUS rulings that say a police officer does not have probable cause if the behavior is at least as likely to be legal as illegal. This is important because it might allow a police officer to argue that the behavior is not as likely to be legal. Remember how small a percentage of the population have CHLs. If the meaning of does not apply turns out to be a defense instead of an exception, it would certainly allow officers to claim that the behavior is illegal and only a defense exists. If it turns out to be an exception, an officer might still be able to claim the odds are in favor of illegal behavior based on the percentages. I think the court case would turn out poorly for the officer, but I can see soem of them, especially with certain DAs backing them up, makign the argument.