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Thread: Can You Open Carry While Travelling?

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    Regular Member rodbender's Avatar
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    Can You Open Carry While Travelling?

    Sec.46.02 UNLAWFUL CARRYING WEAPONS.
    (a)A person commits an offense if the person intentionally, knowingly, or
    recklessly carries on or about his or her person a handgun

    Sec. 46.02(a) of the Texas penal Code says it is illegal to carry a handgun.

    Sec.46.15 NONAPPLICABILITY.
    (b)Section 46.02 does not apply to a person who:
    (2)is traveling;

    Sec. 46.15(b)(2) says that 46.02 does not apply if one is traveling.

    But, does the next part kill that part of 46.15 for CHL holders?

    Sec.46.035 UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
    (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder ís person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    Just a thought.
    The thing about common sense is....it ain't too common.
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    Campaign Veteran Freeflight's Avatar
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    I say yes..

    And I'll continue to OC when traveling I back up what I'm saying here with action.

    The law is plain to me, if your traveling your good to go, and not carrying under the authority of the CHP.

    the only thing is the Traveling is not defined. It's clear to anyone that I am traveling with my VA License Plates and VA License They cant argue that point with me.

    so...

    I just went all the way across texas while OC..

    I didn't have any issues that time, Will do it again soon and keep yall posted.


    Of course you will get the usual "Hand Wringers" that will tell you no..you must not!
    And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants"

    Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy 20, S. Padover ed., 1939

    Free Flight

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by Freeflight View Post
    I say yes..

    And I'll continue to OC when traveling I back up what I'm saying here with action.

    The law is plain to me, if your traveling your good to go, and not carrying under the authority of the CHP.

    the only thing is the Traveling is not defined. It's clear to anyone that I am traveling with my VA License Plates and VA License They cant argue that point with me.

    so...

    I just went all the way across texas while OC..

    I didn't have any issues that time, Will do it again soon and keep yall posted.


    Of course you will get the usual "Hand Wringers" that will tell you no..you must not!
    I was actually referring to Texas residents with a CHL.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    per the statutes, it does indeed deny open carrying while traveling if you are carrying with a CHL, however, if you are going to travel, you don't need to carry your CHL. Then again, there are places that are off limits to anyone who isn't licensed, so pick your poison.

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    Regular Member CrossFire's Avatar
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    The LEO will find out you have a CHL as soon as he runs your DL.

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    Quote Originally Posted by CrossFire View Post
    The LEO will find out you have a CHL as soon as he runs your DL.
    It doesn't matter, because if you don't have it on you, you aren't carrying "under the authority of (CHL)". You're traveling.

    I think you can also argue that even if you do have it on you, you're not carrying under its (CHL) authority. Just like a Peace Officer open carrying, who happens to have a CHL, isn't violating 46.035.

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    PC46.02(a)(2)(a-1)(1) prohibits handguns in plain view in vehicles.

    PC46.15 (b)(2) says PC46.02 does not apply "while traveling."

    So my plain language reading is that, unless someone is otherwise prohibited from carrying a handgun in a place, they may carry it while traveling. That said, there are prohibitions which may apply (where on-premise alcohol is served, school zones, etc.)

    Traveling without significant deviation from route was required under the old laws. After you check into a hotel for the night, you have established a home-away-from-home and are no longer traveling. YMMV

    Also, you will be relying on local PD accepting your interpretation, which is contrary to longstanding Texas law. (for 100 years before the changes in 2005). Dallas area PD were convinced that the 2005 law would result in the inability to prosecute all persons for carrying a handgun.

    The laws are fragmented and poorly written.

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    Regular Member rushcreek2's Avatar
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    WHEN TRAVELING in Texas you do not need a CHL because carrying under the authority of the CHL is an exception provision to 46.02 which does not apply to a person WHEN TRAVELING.

    Logical extentions of traveling status could be a road-side pit stop for FIDO, fueling AT THE PUMP, ACCESSING rest area restroom facilities or a motel room. These are a few of the OC opportunities that I practice regularly. I'm sure there are many more possibilities.

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    Regular Member rodbender's Avatar
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    noname and rush, you haven't addressed the OP question. You wandered off to left field somewhere.

    rush, can you show me where it says that CHL is an exemption to 46.02. I can't find it.
    The thing about common sense is....it ain't too common.
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    Regular Member rushcreek2's Avatar
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    Quote Originally Posted by rodbender View Post
    noname and rush, you haven't addressed the OP question. You wandered off to left field somewhere.

    rush, can you show me where it says that CHL is an exemption to 46.02. I can't find it.
    YES, you can legally open carry WHILE TRAVELING in Texas. The requirement to conceal a handgun while inside your vehicle under the 2007 provision added to 46.02 does not apply WHEN TRAVELING. That having been said a holstered handgun in plain view has the potential for issues and obstacles.

    There really should be no conflict between WHEN TRAVELING and keeping a handgun out of plain view while inside the vehicle unless it's on top of the dash or being brandished in some manner. I am OC (uncovered) while behind the wheel but it is not in plain view unless you happen to be riding shotgun next to me.

    46.15 (b) (6) (provides that) Section 46.02 does not apply to a person who is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code......................

    I think much confusion originates from the "heads -or-tails" approach to concealment vs display. In my own IWB manner of carry the " coin" is more often than not standing on its edge.

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    Regular Member dedeye's Avatar
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    Quote Originally Posted by rushcreek2 View Post
    YES, you can legally open carry WHILE TRAVELING in Texas. The requirement to conceal a handgun while inside your vehicle under the 2007 provision added to 46.02 does not apply WHEN TRAVELING. That having been said a holstered handgun in plain view has the potential for issues and obstacles.

    There really should be no conflict between WHEN TRAVELING and keeping a handgun out of plain view while inside the vehicle unless it's on top of the dash or being brandished in some manner. I am OC (uncovered) while behind the wheel but it is not in plain view unless you happen to be riding shotgun next to me.

    46.15 (b) (6) (provides that) Section 46.02 does not apply to a person who is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code......................

    I think much confusion originates from the "heads -or-tails" approach to concealment vs display. In my own IWB manner of carry the " coin" is more often than not standing on its edge.
    Being as there is No OC in Texas, I'll wait till you guys get the kinks worked out before i try it!

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    Regular Member dedeye's Avatar
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    Quote Originally Posted by rushcreek2 View Post
    YES, you can legally open carry WHILE TRAVELING in Texas. The requirement to conceal a handgun while inside your vehicle under the 2007 provision added to 46.02 does not apply WHEN TRAVELING. That having been said a holstered handgun in plain view has the potential for issues and obstacles.

    There really should be no conflict between WHEN TRAVELING and keeping a handgun out of plain view while inside the vehicle unless it's on top of the dash or being brandished in some manner. I am OC (uncovered) while behind the wheel but it is not in plain view unless you happen to be riding shotgun next to me.

    46.15 (b) (6) (provides that) Section 46.02 does not apply to a person who is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code......................

    I think much confusion originates from the "heads -or-tails" approach to concealment vs display. In my own IWB manner of carry the " coin" is more often than not standing on its edge.

    Being fresh out of CHL for Texas here is what we were told.
    If you are Traveling without a CHL Have a packed bag(clothes,toothbrush,razor, etc)
    and it is upto the state to prove you are not traveling. no mention of OC while traveling was mentioned, my understanding is if you have a gun in the car with or without a CHL the gun must be out of sight at all times.

  13. #13
    Regular Member rodbender's Avatar
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    OK, plain english. Does the part of 46.15 that I posted override the part of 46.035 that I posted or does the part of 46.035 override the part of 46.15 that I posted? I know about vehicle carry and all that. I was wondering about the conflict. Do you think there is one. I do. It seems that if you do not have a CHL, you can open carry while travelling. If you do have one, you cannot.
    The thing about common sense is....it ain't too common.
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    Regular Member rushcreek2's Avatar
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    There are many facets to this handgun issue in Texas - not the least of which is the recent Supreme Court decision in McDonald v Chicago which essentially held that whether its Washington D.C., Chicago, OR TEXAS - the "quintessential handgun" may no longer be excluded from the right to bear arms.

    A person can legally walk down Main St in Texas with a .30/.30 in one hand and a 12 gauge in the other - but if that already visibly armed person is also carrying a handgun under the authority of Subchapter H, Chapter 411 of the Government Code - and they intentionally fail to conceal it -they are in violation of 46.035 (a).

    This is as plain English as I can muster. Since you DO NOT NEED a CHL WHEN TRAVELING in Texas, you are NOT CARRYING UNDER THE AUTHORITY of Subchapter H, Chapter 411. The primary function of the CHL is to establish exemption from 46.02. WHEN TRAVELING you already have exemption from 46.02.

    Since the time honored TRAVELING exemption pre-dates the CHL exemption by 123 years , it has been enhanced but not eclipsed by the CHL, it still stands on its own independent of the CHL. I would still want to have a CHL - even when traveling - but if you opt to carry under CHL authority while enroute then apparently you may not INTENTIONALLY fail to conceal.

    Some further tweeking may be in order, RODBENDER. Not to suggest that a traveler MUST CHOOSE their handgun carry under either "WHEN TRAVELING" option - or CHL AUTHORITY option before embarking upon a journey in Texas. Obviously some degree of DISCRETION and SELECTIVITY regarding location/circumstances should be applied to any display. I feel that this is also a valid concern even when I am traveling through New Mexico and Colorado. When traveling through any State I would be mindful of school zones ,and sensitivity to the local-yokal index. I suggest a well thought out "flight plan". My main goals when opting to display under current Texas law WHEN TRAVELING is my safety, and perhaps introducing the public square to a brief glimpse of LEGAL handgun carry.
    Last edited by rushcreek2; 12-03-2010 at 10:36 AM.

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    Quote Originally Posted by rodbender View Post
    noname and rush, you haven't addressed the OP question. You wandered off to left field somewhere.

    rush, can you show me where it says that CHL is an exemption to 46.02. I can't find it.
    PC 46.15(b)(6):

    (b) Section 46.02 does not apply to a person who:
    (6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;


    This applies to someone with a CHL who is not traveling, of course; that person is still subject to the other restrictions places on those with CHLs, particularly 46.035.
    Last edited by KBCraig; 12-03-2010 at 06:04 PM. Reason: typo

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    Regular Member rushcreek2's Avatar
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    Sometimes I think the discussion is prone to bogging down with the use of the OC /"open carry" terminology -particularly in regards to the Texas situation. It's probably because in Texas -unlike most other States - the usage of the term "open carry" seems a bit "foreign". Under Texas law prior to the 1996 concealed handgun licensing law it was simply CARRY- period.

    The gradual discounting, if not outright disregard for the Texas "traveling rule" by urban law enforcement brought on the need for some concrete certainty in the law that resulted in the concealed handgun license law in 1995. Under traveling, hunting, gun range exceptions you could -and still can carry concealed or in plain view. The CHL was intended to bridge the gap between "home" and any other available 46.02 exception authority. If you are carrying under CHL authority because no other exception authority is available then 46.035 is applicable.

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    Cool

    Yes, you can carry a weapon-even loaded-while traveling, but while in TEXAS it had better be CONCEALED. When stopped the OFFICER should not be able to see the firearm in plain view!

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    Quote Originally Posted by Cowboy_Rick View Post
    Yes, you can carry a weapon-even loaded-while traveling, but while in TEXAS it had better be CONCEALED. When stopped the OFFICER should not be able to see the firearm in plain view!
    Please go back and read the thread. This time, pay attention.

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by KBCraig View Post
    Please go back and read the thread. This time, pay attention.
    Thanks
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Regular Member rushcreek2's Avatar
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    Quote Originally Posted by Cowboy_Rick View Post
    Yes, you can carry a weapon-even loaded-while traveling, but while in TEXAS it had better be CONCEALED. When stopped the OFFICER should not be able to see the firearm in plain view!
    The intent of the "not in plain view" provision is to preclude even the perception of brandishing behavior- primarily towards other motorists in road-rage situations. An LEO at your driver side window during a traffic stop is the equivalent of a "peeping- Tom" at your bedroom window. Now if the handgun is on top of the dash or suspended from the rear view mirror for the world to see - that is a different matter.

    It's really OK to apply a measure of logic, common sense, and a reasonable person standard to these laws.

    If we are going to adhere to the "letter of the law" - that should include recognition that the 46.02 provision pertaining to inside vehicle concealment (actually the operative term is "not in plain view") DOES NOT APPLY WHEN TRAVELING.

    The MPA of 2007 provision provides for handgun carry in one's private vehicle when NOT traveling, and not licensed (CHL). Although this provision of 46.02 is not applicable when taveling or with a CHL - Title 9 section 42.01 (a)(8) Disorderly conduct while displaying a firearm in public with intent to alarm does apply in all circumstances.
    Last edited by rushcreek2; 12-07-2010 at 09:32 AM.

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    Quote Originally Posted by rodbender View Post
    Sec.46.035 UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
    (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder ís person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
    If you are carrying concealed under authority of your CHL, you may not intentionally fail to conceal. However, if you are carrying while traveling, PC 46.02 does not apply, and you are not carrying under a CHL. The 2005 law shifted the burden of proof to the State, that is, you are presumed to be traveling unless the authorities prove otherwise. This does not mean you will not be arrested and charged.
    (Oddly enough, only 60% of those convicted of UNL CARRY HANDGUN LIC HOLDER in 2007 were actually license holders.)

    I don't think my previous answer was OT, just not quite to the point.

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    I wouldnt suggest anyone open carry in Texas. Not right now at least.
    Texas laws Do Not favor open carry. Texas LE does not favor the rights of citizens.
    As a citizens you are obligated to yourself defense. This means protect yourself form crime and it also means protect youself form the LAWS!!
    Dont get yourself in debt to the courts because you have a desire for Constitutional Right in Texas!
    If the laws dont clearly state you can do something, Then Dont Do It!
    For the time being, make your opinion heard! Let Representatives know what your thinking and make sure they understand that You Are The Constituent!

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    Regular Member Fisherman's Avatar
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    Quote Originally Posted by MR Redenck View Post
    I wouldnt suggest anyone open carry in Texas. Not right now at least.
    Texas laws Do Not favor open carry. Texas LE does not favor the rights of citizens.
    As a citizens you are obligated to yourself defense. This means protect yourself form crime and it also means protect youself form the LAWS!!
    Dont get yourself in debt to the courts because you have a desire for Constitutional Right in Texas!
    If the laws dont clearly state you can do something, Then Dont Do It!
    For the time being, make your opinion heard! Let Representatives know what your thinking and make sure they understand that You Are The Constituent!
    Absolutely right! I wouldn't get into debt over something that isn't clear. Things like this take time especially in Texas, a reconstruction state where people haven't openly carried guns for over 130 years. People need to get it in their heads that criminals are dangerous, not guns or knives or rocks, etc. Join LSCDL and help with their re-education! http://www.lonestarcdl.org/

    Can you dig it? Yes I can. We've been waiting such a long time..... for Texas rights.....
    Last edited by Fisherman; 12-10-2010 at 11:45 AM.

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    while in my truck and i feel the need to have my gun very close..it sits in my lap with a towle covering it..if some one comes up to me that i don't know day or night my hand is on my pistol, this is just the way i do it..other than that it sits in my driverside door panel..completly out of site..

  25. #25
    Regular Member rushcreek2's Avatar
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    NO ONE should consider engaging in any form of social behavior soley because of speech, written commentary, or shared perspectives that may be subject to possible interpretation as constituting absolute certainty in this very uncertain world. That would include this forum as well as the local "cracker barrel".

    It is fair to say that 100 percent of the INTENTIONAL visitors to this or any other English language forum on the net CAN READ ENGLISH, and I believe all laws enacted in Texas and the United States are still available in English.

    This particular forum is dedicated to the goal of positively changing attitudes and the laws in Texas in order to repair a sad history of lost respect for the constitutionally protected right of bearing arms.

    Legislative lobbying, discussion, information shared in the public square, and remedial court action are all effective means of bringing about the changes needed.

    Although no analogy is perfect - consider this :

    Anyone can make a pretty good case for the obvious unconstitutionality (under the equal protection clause of the 14A)evident in the application and enforcement of seat-belt/child restraint legal requirements regularly enforced across this nation. Bicycles, Motorcycles, buses, farm and construction vehicles, motorized mobility devices, golf carts, etc are generally excepted from "click it -or ticket" enforcement. These "common sense" exceptions are rationalized under a general recognition of the "impracticality" of applying the seat-belt/child seat requirements to these "special circumstance" vehicles. OTHER LAWS can be applied inspite of the exception status (DUI, unsafe operation, child endangerment,etc.)

    Analogy - Section 42.01 (a)(8)-Disorderly conduct: Display of a firearm in public WITH THE INTENT of causing alarm- will trump any CAN DO firearm law in Texas - as will being determined to be in a state of public intoxication.

    Actually Texas law is very clear regarding the nonapplicability of 46.02 under certain circumstances one of which is the topic herein being discussed -WHEN TRAVELING.

    Now, I'm reasonably certain that SOMEWHERE between NEVER TRAVELING ...and ALWAYS TRAVELING ....there exists an indisputable REALITY we may ALL agree does actually constitute TRAVELING - AND 46.15 provides that 46.02 CLEARLY IS NOT APPLICABLE under that particular circumstance.

    The Texas Legislature in its infinite wisdom many years ago INTENTIONALLY, KNOWINGLY, and (perhaps even) RECKLESSLY agreed to exempt TRAVELERS from ALL PROVISIONS OF 46.02. That's probably due to the existence of a general "unanimous consent" to the effect that : "Ain't nobody gonna tell ME that I can't wear my handgun WHEN TRAVELING TO AND FROM the Capitol." Bandidos were not considered to be TRAVELING - even if they were.

    You know.....I'll bet there are still some people in our midst that would like to bring back some former laws and generally "recognized" norms regarding seating at lunch counters, buses, restrooms, and drinking fountains,poll taxes, etc, etc.

    That being said, it is not too much of a stretch to imagine some sentiments favoring repeal of the WHEN TRAVELING exception - or the exceptions for fishing, hunting, gun relating sporting activities -even the CHL law and the 2A for that matter - if we insist upon respect for our civil rights , or... presume to have a right - to assert a right to do something that the law does not expressly say we can do, or does not clearly prohibit.

    Personally I do not suggest that ANYONE get out of bed in the morning . It is a well documented fact that most personal injury accidents happen IN ONE'S OWN HOME - and in the BATHROOM of all places.

    So......I suppose....... we should not do anything unless the legislature enacts a law expressly ALLOWING us to do it ??? That is an absurdity - ofcourse.

    There are two primary factors determining the course of a sailing ship ( or a STATE). One is the COMPASS HEADING - a controllable factor (outside of the "Bermuda Triangle" ofcourse). The other is the DIRECTION OF THE WIND - an uncontrollable factor. I would liken the COMPASS HEADING to the legislators in Austin reading and heeding our letters. The WIND is being generated by the aroused movement of people in Texas who aren't going to tolerate ANY OF their constitutionally enumerated AND PROTECTED civil rights being suppressed - be it 1A, 2A, or 4A civil rights.

    The WINDS OF CHANGE are beginning to blow in Texas and the Legislature would do well to set a course that takes BOTH THE COMPASS READING AND THE WIND into account.
    Last edited by rushcreek2; 12-12-2010 at 07:59 PM.

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