Open Carry odyssey from Del-Rio to Virginia

OldCurlyWolf said:

Feel as you may, a County Criminal Court at Law Judge(Class A & B Misdemeanors) or a District Court Judge (Felonies) is more than 90% likely to disagree with you and your lawyer. So is a Jury.
:banghead:

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I'm not sure what you're disagreeing with me about, or banging your head about. I laid out the problems with there being no statutory or statewide controlling case law definition of "traveling", and how different jurisdictions might respond. I said I wouldn't feel comfortable relying on traveling unless it was absolutely clear that I was doing so.

So: what are the judge and jury going to disagree with me about, exactly?

KBCraig said:

I'm not sure what you're disagreeing with me about, or banging your head about. I laid out the problems with there being no statutory or statewide controlling case law definition of "traveling", and how different jurisdictions might respond. I said I wouldn't feel comfortable relying on traveling unless it was absolutely clear that I was doing so.

So: what are the judge and jury going to disagree with me about, exactly?

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these are arguments that have been hashed around with for years. I travel across two counties daily just going to work and back, but i'm pretty sure in the DFW area, they are not going to consider that traveling. Now, if one is driving to somewhere 3 hours away, more than likely that is going to be considered traveling. but again, you are correct that it is still a gray area because there is no statutory definition of 'traveling'.

DKSuddeth said:

these are arguments that have been hashed around with for years. I travel across two counties daily just going to work and back, but i'm pretty sure in the DFW area, they are not going to consider that traveling. Now, if one is driving to somewhere 3 hours away, more than likely that is going to be considered traveling. but again, you are correct that it is still a gray area because there is no statutory definition of 'traveling'.

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There is now. By Statute, not by case law. Since I believe 2007.

Here is the revision:

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, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
Wandering around outside the vehicle and going into stores while armed is not covered as allowed behavior
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or OC is not allowed here either.

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

if this is the new statutory definition of traveling, then our rights just got seriously curtailed.

DKSuddeth said:

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

if this is the new statutory definition of traveling, then our rights just got seriously curtailed.

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This isn't a definition of traveling at all. It's a definition of an exception to TXPC 46.02 Unlawful Carrying of a Weapon.

Traveling is still not defined in the Penal Code.

ScottDLS said:

This isn't a definition of traveling at all. It's a definition of an exception to TXPC 46.02 Unlawful Carrying of a Weapon.

Traveling is still not defined in the Penal Code.

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please follow the thread. I did not say this was the definition of traveling.

DKSuddeth said:

please follow the thread. I did not say this was the definition of traveling.

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He was agreeing with your rebuttal of Old Curly Wolf.

Right...

KBCraig said:

He was agreeing with your rebuttal of Old Curly Wolf.

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Right! I try not to have 75 nested quotes in my replies as I assume people are reading the whole thread.

ScottDLS said:

Right! I try not to have 75 nested quotes in my replies as I assume people are reading the whole thread.

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my bad then. sorry.

"Traveling is still not defined in the Penal Code." -- ScottDLS

...so, we're looking for "volunteers" so the judge maybe can define it!

;-)

cloudcroft said:

"Traveling is still not defined in the Penal Code." -- ScottDLS

...so, we're looking for "volunteers" so the judge maybe can define it!

;-)

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I volunteer everytime I travel. Now with that said the few times I've talked to a leo while traveling i refer them to 46.15. Each time they either said "wow I didnt know that" or "yeah I'm aware I just wanted to make sure you were not a felon" (bs I know)

the generally accepted definition of traveling is crossing three or more county lines. The courts and the legislature hasn't defined it so it's not 100% official that's why it's refered to as the generally accepted definition.

jordanmills said:

What about the TABC regulations in establishments with various alcohol licenses? "The unlicensed possession of a weapon" etc would apply, IMO, however otherwise legal the open carry is.

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I'm a beginner @ the law but having dug deep looking , the biggest concerns are establishments receiving 51% of revenue from the sale of alcohol.

This is a Big Issue for me, my job involves servicing ATMs and other machines with money in them, in bars. what can i do?

cloudcroft said:

"Traveling is still not defined in the Penal Code." -- ScottDLS

...so, we're looking for "volunteers" so the judge maybe can define it!

;-)

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Going for targeted precedent seems to be a common way to work things like this out. The deal is, you want to make sure you're in a jurisdiction where the DA will consider charges that make it very clear what's being tried, and where the judge will almost certainly rule in your favor. And the same for the superior court when the DA appeals it. It's not a situation you just jump into because you feel like testing it.

jordanmills said:

Going for targeted precedent seems to be a common way to work things like this out. The deal is, you want to make sure you're in a jurisdiction where the DA will consider charges that make it very clear what's being tried, and where the judge will almost certainly rule in your favor. And the same for the superior court when the DA appeals it. It's not a situation you just jump into because you feel like testing it.

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A DA cannot appeal an acquittal. That is the definition of "double jeopardy".

ScottDLS said:

A DA cannot appeal an acquittal. That is the definition of "double jeopardy".

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Hmmm I see.

It's WAY too open for translation.

Freeflight said:

That is Correct! Welcome aboard, Ye shall know the Truth, and the Truth will set you Free!

(Not meant to sound harsh, put a friendly tone on it as you read.)

Free Flight

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I don't know where ya'll are coming up with the fact that PC 46.02(b) allows you to OC. It doesn't say that. As a former Texas Peace Officer in the D/FW area I've learned that the laws aren't black and white even when in black and white!

You have to bounce around from 46.02, 46.03 and 46.15 to piece together the picture the Texas Gov't was trying to portray. My interpretation is this in a nutshell.

Just because you are traveling doesn't give you total immunity from any, and/or all, of the Texas State weapon laws. Just because it says "those who are traveling" (a subject very open for interpretation!) are an exception to 46.02 and 46.03 doesn't necessarily mean that are given allowances that are way out of the scope of the intent and meaning of the laws.

Now don't get me wrong, I'm very pro-gun and dealt with many great citizens who were carrying when I interacted with them. Not one person lawfully carrying ever gave me difficulties. I just know that when we want the law to read a certain way we can get it fixed in our heads that it reads that way. However, if you find yourself in the most unfortunate situation of sitting in a liberal minded Judges court room who is just looking to throw a gun toter in jail or a more liberal Texas town full of California carpetbaggers as a "jury of your peers" then guess who doesn't pass Go and doesn't collect $200?

Also, just a side note...this is for Free Flight...I think the only way you were able to get by OC'ing without recourse was because of the small West Texas town mentality. Which is great! But...why did you avoid the big cities and cover your weapon in certain areas for fear of the cops being called if you felt you were in the right?

Desert Doc

scottdls said:

a da cannot appeal an acquittal. That is the definition of "double jeopardy".

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bingo!

Navy Desert Doc said:

I don't know where ya'll are coming up with the fact that PC 46.02(b) allows you to OC. It doesn't say that. As a former Texas Peace Officer in the D/FW area I've learned that the laws aren't black and white even when in black and white!

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wouldn't that make them unconstitutionally vague, then?

Navy Desert Doc said:

You have to bounce around from 46.02, 46.03 and 46.15 to piece together the picture the Texas Gov't was trying to portray. My interpretation is this in a nutshell.

Just because you are traveling doesn't give you total immunity from any, and/or all, of the Texas State weapon laws. Just because it says "those who are traveling" (a subject very open for interpretation!) are an exception to 46.02 and 46.03 doesn't necessarily mean that are given allowances that are way out of the scope of the intent and meaning of the laws.

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if 46.15 exempts people that are traveling, yet 'travel' isn't defined, then wouldn't we have another unconstitutionally vague statute?

Wow. If OC was affirmatively defended simply by saying you were "traveling," everybody would do it. As Desert Doc says: what is overlooked in Bovina would get you arrested in Dallas without a second thought on the cop's part--and you would be convicted. Standing at the pump getting gas with an exposed piece violates the law, much less carrying inside a McDonalds. A cop in Lubbock may cut you some slack on the former, but not on the latter. The legislature's intent on this was clear and a court would act accordingly, I guarantee you. I lived in Houston for a couple of years when this law was revised. There was no doubt about its intentention then and none now. Traveling is a moot point since below:


Gov. Perry also signed H.B. 1815, a bill that allows any Texas resident to carry a concealed handgun in the resident's motor vehicle without a CHL or other permit.[287] Chapter 46, Section 2 of the Penal Code states that it is in fact not "Unlawful Carry of a Weapon" for a person to carry a weapon while in a motor vehicle they own or control, or to carry while heading directly from the person's home to that car. However, lawful carry while in a vehicle requires these three critical qualifiers: (1) the gun must be concealed; (2) the carrier cannot be involved in criminal activities; and (3) the carrier cannot be a member of a criminal gang.[288][289]

Due to the epidemic proportions of crime in Texas' urban cess-pools, local law enforcement has found it necessary to resort to employing "extraordinary measures" in order to address this serious criminal threat. These methods are not necessarily constrained by strict scrutiny of THE LAW, or concerns respecting the State and federal constitutions.

The law IS CLEARLY BlACK & WHITE- in the case of the Section 46.15 exemption from 46.02 applicability "if traveling". THE LAW does not allow LEO's , or D.A.'s to invoke authority to arbitrarily dismiss a citizen's traveling status. Traveling is not a crime, therefore some overriding RAS of criminal conduct must exist in order to override the 46.15 traveling exception. Fortunately the MPA of 2007 removed 99 % of the opportunities for persecution of otherwise lawful unlicensed handgun carry, but a ticket to ride on the pay-as-you-go criminal justice "tread-mill" is used to discourage citizens from daring to exercise a civil right. So caution is in order "if traveling ".

Texas courts have as yet failed in their efforts to establish a definitive standard for determining whether or not a person is "traveling" beyond the obvious criminal conduct override. This failure is primarily due to acceptance of the faulty premise that the liberty expressed when traveling requires some further "definition".
Each time the Texas courts have wrestled with the "question" of WHAT CONSTITUTES TRAVELING - the judges realize the futility of the task. They wonder......"Will we be asked to provide a legal definition of "going out for a walk" -next ?

Bootleg "law" enforcement practices prevalent within Harris County/Houston PD were a major contributing factor in the successful effort to pass the CHL law in 1995. Many D.A.'s, and law enforcement in large metropolitan areas continue to OVER-enforce THEIR "law" when they disagree with THE LAW.