There's a vague exception for 'traveling' in Texas.
(from gunlaws.com):
NEW GUN LAWS IN TEXAS - 2005
These laws go into effect on Sept. 1, 2005,
except SB 734, which went into effect immediately.
BIGGEST CHANGE OF THE YEAR:
"Traveling" defined at last, almost, after more than 125 years
HB 823 -- Amends Penal Code 2.05, 46.15
Analysts at the NRA, along with the Texas State Rifle Association’s Legislative Committee describe these two new amendments this way:
“Texas H.B. 823 prevents the police from routinely arresting a law-abiding person who is transporting a concealed pistol in his motor vehicle. This is accomplished by clothing a law-abiding person with the presumption of being a traveler. The traveler presumption may be rebutted by the state by presenting proof beyond a reasonable doubt. In plain terms, a law-abiding person should have no problem transporting his pistol in a motor vehicle provided the pistol is concealed.”
Texas Attorney Sean Healy has an eight-page paper
attempting to describe the new situation, read it here.
NRA short version (6/05):
“Legalizes the carrying of concealed handguns in private vehicles without a CHL.”
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Background: Since 1871, carrying a handgun in Texas, despite the Hollywood version of history, has been nearly totally banned for the public (long guns are unaffected by all this). A person who is “traveling” with a handgun is one of the very limited exemptions under the law. However, under this arrangement, mere possession of a handgun was presumed to be guilt of illegal carry, and it was up to you to prove your innocence after arrest, by proving you were traveling.
“Traveling” was not defined. Scores of county and state court cases generated numerous definitions of what constitutes “traveling,” many not even similar, many conflicting with each other. See 60 of them summarized in The Texas Gun Owner's Guide. Gun owners had no way of knowing if they were legal or not, abuse was rampant, it was a mess.
A primary function of written law is to give fair warning of what behavior is subject to punishment. The law therefore must give people a clear, understandable, unambiguous description of what the law is. When it fails to do so, it is invalid in court. That’s the principle at least. It has not been sufficient to save Texans from over a century of guessing whether they were truly traveling when they did so armed, and being arrested and convicted for simple possession of their private property.
Some Texans regained the ability to bear arms in 1995, when the CHL law was passed and signed by Governor (now President) Bush. It provided much needed relief from the long denial of rights. About 1% of all Texans have obtained a government license and can carry as they travel around the state. The other 99% are still under the ban that began in 1871.
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What the law does is create a definition of "traveling" at last, for carrying a firearm in a private motor vehicle only. It is actually a definition of a presumption of traveling, which the state would have to disprove in order to go after you for possession of a handgun. HB 823 is a somewhat roundabout way of decriminalizing a law-abiding person’s carry of a concealed handgun in a vehicle without a permit. Technically, it leaves the offense intact, and makes it hard for the state to come after you.
It seems to get the job done. But until the courts get a hold of a few people trying to bear arms in their vehicles under this law, the true effect is unknown, and who wants to be in the first few test cases, right?
The switch to a real definition is a step in the right direction, even if it only applies in vehicles. (No one is talking about how you legally get to and from your wheels. There are already some narrow exemptions for things like going hunting, to the range, to a gun store, etc.).
Next however, if we're lucky, the whole concept of criminalizing you and your personal property (firearms) for mere possession, when no criminal act is attached, will be abandoned altogether and our rights will take a giant leap forward.
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The definition of "traveling," for the exemption from a charge of illegal carry under 46.15(b)(3), is this:
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.
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Further confusion comes from the law's complicated jury instructions, burdens of proof, and presumptions about whether the person charged was in fact traveling at the time. It does appear to now put the burden of proof on the state, where it belongs and which is proper, so you're innocent until proven guilty. This will need some shakeout in court, with someone's future on the line.
The old model was the opposite -- your were guilty unless you could prove your innocence as an indefinable traveler -- a horrendous, un-American festering wound on the justice system. That euphemistically named "affirmative defense" procedure is so contrary to everything America stands for it should be abolished, its perpetrators run out of town, and I'm being nice about it.
The long line of logic attached to the traveler definition is (sit down):
If charged with illegal carry, and there's a presumption you're a traveler, the jury must be told of the traveler exemption, unless the judge decides the evidence can't reasonably support it; if the jury gets the traveler evidence it's presumed good unless the state can disprove it beyond a reasonable doubt; if the state fails to disprove it the jury gets it as a fact; if the jury decides it is not fact the state still must prove each other element of the complaint. Approximately -- if anyone out there disagrees or cares to discuss it, reach me at gunlaws.com, and I'll see about posting anything with merit. I decide merit. Read Healy’s paper, it helps.
