Can You Open Carry While Travelling?

[nonameisgood]

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 ’s 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.

 

[MR Redenck]

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!

 

[Fisherman]

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.....

 

[banderashovel]

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..

 

[rushcreek2]

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.

 

[have gun will travel]

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!

now this is good advice I FIND THAT SOME TIME IN THIS FORUM you will receive some good or bad advice someone might get away with with ocing so they will tell you they did not have any problem but as soon as you try to oc you get busted anyway that really good advice MR Redenck

 

[rushcreek2]

There is ONLY ONE provision under Texas law that outlaws "open carry" , and prescribes a criminal penalty for intentional failure to conceal a handgun. That provision is Section 46.035(a), and it applies only to a person licensed under the authority of Subchapter H, Chapter 411, of the Government Code.

Section 46.02 (a)(2) is merely an allowance for carry of a handgun while directly en route to your vehicle. Section 46.02 (a-1) is an allowance for carry of a handgun as long as it is kept out of plain view while INSIDE the vehicle. Neither of these provisions are open carry procriptions.

Other than the 46.035 (a) failure to conceal by a licensee provision, the common understanding that under no circumstances is open carry legal in Texas is based entirely on section 46.02(a) which generally outlaws the carrying of a handgun -period -without any distinction being made regarding concealed or open carry.

Section 46.15 provides certain exemptions from section 46.02 applicability- one of which is - "if traveling".

That doesn't translate into an unqualified "open carry is legal in Texas"- but it is legal "if traveling". The fact that not everyone in Texas is "comfortable" open carrying " if traveling" doesn't negate the fact that it is still legal.

It is NOT - a matter of "luck" that those who periodically open carry under circumstances when it is legal in Texas- don't get "busted". It is - a matter of combining knowledge of Texas law relating to handguns, common sense, and discretion in determining when, where, and whether to open carry.

Some folks are never going to open carry in Texas - or any other state for that matter even when it's legal. The reason I say this - is that folks who aren't inclined to navigate through existing Texas law probably won't open carry under more relaxed provisions.

If the current session of the Texas Legislature were to repeal Section 46.035 (a), and licensed open carry became legal tomorrow - very few CHL licensees would actually engage in OC.

The reason I say this - is that your "RIGHT" to open carry STOPS at every threshhold of private property. You may cross that threshhold open carrying only if the proprietor grants you the privilege of doing so.

My feeling is that Texas law needs fixing on this issue, but it's not going to be an instant fix even when it's generally legal. The culture has to change. So - until that day arrives some folks will just keep complying with the existing law - and periodically open carry in Texas.

 

[PrayingForWar]

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.

I think you were hasty in dismissing this post. As intellectually sound as everyone else's posts are, it's clear none have come to a consensus on how the law reads. Therefore it is unclear. If we cannot clearly interpret the law while we all share an agenda, how can we possibly expect the judicial system, meaning the LEO's, the DA's and judges to interpret the law in our benefit. Especially since we all know how many fascist cops, DA's and judges are in the system.

So as far as I'm concerned Cowboy Rick is essentially right. If a cop stops you, he better not find a weaopn clearly visible. Licensed or not.

 

[KBCraig]

I think you were hasty in dismissing this post. As intellectually sound as everyone else's posts are, it's clear none have come to a consensus on how the law reads. Therefore it is unclear.

The law is not unclear, which is why there is consensus among those who actually read it, instead of unrelated snippets.

 

[rushcreek2]

The law is not unclear, which is why there is consensus among those who actually read it, instead of unrelated snippets.

It will become clear only when the eyes are opened, the provision of the law is actually read, and attention is paid to the ACTUAL LANGUAGE used in the respective provisions of statutory law.

Arriving at a conclusion that the phrase "IN PLAIN VIEW" in 46.02 means anything other than "IN PLAIN VIEW' is a subjective judgement that fails to "AMEND" the actual wording of that section. The section referred to does not specify that an officer should not be able to see the handgun in plain view when standing at the driver-side door. What would seem reasonable to assume is that the intent of the provision is that occupants of a vehicle may carry a handgun as long as it is not displayed to other drivers or pedestrians in an irresponsible manner. "Concealment" is not required to avoid threatening other members of the public.

 

[PrayingForWar]

The law is not unclear, which is why there is consensus among those who actually read it, instead of unrelated snippets.

If the law was clear sir, this thread would not exist.

 

[PrayingForWar]

It will become clear only when the eyes are opened, the provision of the law is actually read, and attention is paid to the ACTUAL LANGUAGE used in the respective provisions of statutory law.

Arriving at a conclusion that the phrase "IN PLAIN VIEW" in 46.02 means anything other than "IN PLAIN VIEW' is a subjective judgement that fails to "AMEND" the actual wording of that section. The section referred to does not specify that an officer should not be able to see the handgun in plain view when standing at the driver-side door. What would seem reasonable to assume is that the intent of the provision is that occupants of a vehicle may carry a handgun as long as it is not displayed to other drivers or pedestrians in an irresponsible manner. "Concealment" is not required to avoid threatening other members of the public.

After the law was passed the Harris Co DA said he would still prosecute people found carrying w/o a license. If anyone has a doubt that an LEO can't take you to jail if he observes a weapon on you I hope you're independently wealthy, and can afford a lawyer. I am not a genius like mr "pointofview", but I'm not an idiot either. I've read the law. Even though I might understand it, obviously it can be confused and people can still be arrested.

 

[PrayingForWar]

The law is not unclear, which is why there is consensus among those who actually read it, instead of unrelated snippets.

There's also "consensus" amoung "scientists" that man made global warming is an issue that must be addressed immediately or all life on earth will cease to exist.

 

[rushcreek2]

The wording is clear. There is no ambiguity in the texts of those sections of Texas law referred to throughout this thread regarding the traveling exemption, in plain view vehicular handgun carry , and intentional failure to conceal when carrying a handgun under authority of Texas CHL.

Granted there is a lack of clarity, consensus, and comprehension regarding these sections of Texas law among the Texas law enforcement community that is shared by many Texas citizens who have no real interest in actually exercising their right to bear arms, and would rather nay-say those who do.

 

[MR Redenck]

The wording is clear. There is no ambiguity in the texts of those sections of Texas law referred to throughout this thread regarding the traveling exemption, in plain view vehicular handgun carry , and intentional failure to conceal when carrying a handgun under authority of Texas CHL.

Granted there is a lack of clarity, consensus, and comprehension regarding these sections of Texas law among the Texas law enforcement community that is shared by many Texas citizens who have no real interest in actually exercising their right to bear arms, and would rather nay-say those who do.

Well lets see a "legal" write up on the method to the Traveling exemption. The boy's at Lone Star CDL will make a education post on their website. They will also mail it to all of the Texas LE offices so everything is clear. :dude:

 

[rushcreek2]

Well lets see a "legal" write up on the method to the Traveling exemption. The boy's at Lone Star CDL will make a education post on their website. They will also mail it to all of the Texas LE offices so everything is clear. :dude:

Here it is ! (AGAIN)

Title 10. Chapter 46. Weapons

Section 46.15 (b) - Section 46.02 [the section that criminalizes the carrying of a handgun in Texas] DOES NOT APPLY TO A PERSON WHO :

(2) IS TRAVELING.

No provision is made in the above section defining "traveling", establishing parameters for traveling, or specifying any legal standard to be applied by Texas law enforcement, or judiciary in determining whether a person in point of fact " is traveling".

Therefore the burden rests upon the shoulders of the State to produce evidence indicating that a person is in fact not traveling while in Texas. This is an insurmountable hurdle when a person actually IS traveling. A person has to really step out-of-bounds, or end up at "Joe's Pool Parlor" in order to suggest gross divergence from traveling. Traveling encompasses any activity that is necessary, pursuant to, and concurrent with the travel experience even when such activity results in a temporary suspension of progress towards the destination.

While traveling in Texas there can be no Section 46.035 (a) violation for failure to conceal while carrying a concealed handgun while licensed under the authority of Subchapter H, Chapeter 411 , of the Government Code - IN LIEU OF ACTUAL POSSESSION OF A VALID TEXAS CHL. Persons possessing permits/licenses issued by another state's jurisdictions, although recognized when in Texas - are NOT LICENSED under the authority of Subchapter H, Chapter 411 and therefore not encompassed by the provision of Section 46.035(a). In my view this is the strongest single argument for repeal of Section 46.035 (a) at the present time. That is not to suggest that Texas law enforcement agencies are precluded from coordinating with the out-of-state issuing jurisdiction in order to affect suspension or revocation.

 

[Cowboy_Rick]

I used to be a LEO, if you take the firearm, lay it in the seat-even next to you and place a towel completely over it-the firearm becomes "OUT of PLAIN VIEW". When the Officer approaches you, and asks, "Are there any firearms in the vehicle", you reply, "YES", then, if he removes the towel without issuing a warrant for search, he has opened up a can of worms for ILLEGAL SEARCH and SEIZURE, especially, if he removes the firearm. Plus in this instance, he has not asked if you are licensed to CONCEAL CARRY within this STATE. Law Enforcement Officers receive Training in every state within the first year of employment-not necessarily the best, but it is informational training as to the LAWS and how best to handle situations pertaining to them. Also, remember that he may have fallen asleep in class during this part of training-so how much do you trust the judgement of a "STRANGER". Never invite trouble, if arrested, then you will see the Judge, who will make the final decision as to whether you have "broken" the LAW or not-why go there?

 

[rushcreek2]

The intent of the legislature expressed in Section 46.02 (a-1), (1) is not to address OFFICER SAFETY concerns. The intent of the provision is to extend the "on the person's own premises or premises under the person's control" exception to 46.02 (a) into their privately owned vehicle.

The ".....intentionally, knowingly, or RECKLESSLY carries a handgun.......inside a motor vehicle.......at any time in which the handgun is in plain view" - provision has nothing to do with LE traffic stop detentions which involve entirely separate, and unique considerations and concerns involving officer safety, and constitutional issues.

LEO's engaged in motor vehicle traffic stop detentions are not casual in-line-of-sight observers. The occupants of a MV during a traffic stop detention are subject to the immediate authority of the officer(s) and not engaged in the kind of independent conduct which IS THE FOCUS of Section 46.02 (a-1) (1). The officer(s) will be inspecting the interior of the vehicle with visual, auditory, olfactory, and "gut" senses fully operational.

As insightful and informative as former and current State LEO observations may be - Texas LAW they do not make. Such "rules of thumb" understandably employ a law enforcement perspective, but do not otherwise augment or amend actual written provisions of Texas law.

My step-son is a former LEO, and in the pre-1996 days when traveling, hunting, fishing, etc were the only general exemptions allowing handgun carry he had a very reasonable philospophy that he would never charge an otherwise law-abiding WOMAN with a 46.02 violation. I was pleased with this common sense, SANE approach to law enforcement - even though his perspective, or his police training didn't change one single word in the law.

I suspect Suzanna Hupp who lost both parents at the Luby's Cafeteria in Killeen wished that my step-son's philosphy HAD BEEN THE LAW IN 1991 in Texas. As much as we may respect, and appreciate dedicated Texas law enforcement officers , they fortunately still do not write State laws- and neither do judges.

"Law" enforcement by handcuff is otherwise known as unlawful arrest.

When a LAW -ABIDING citizen who has violated NO LAW is arrested by an officer OF THE LAW - exactly WHO do you suppose is inviting TROUBLE ?

Why do you'all even need legislators, judges, and a governor down here in Texas when you'all were doing just fine for all those 139 years with that there kin of "Bufford T. Justice" - Remember HIM ? "You in a heap of trouble now , boy !"

Just to follow up on that last thought - Texas LEO's are LAW enforcement officers who are foresworn to uphold the federal and State constitutions, and enforce State LAWS. Then there are those who wear a badge and enforce their "training" - or lack thereof. I was a pretty fair football line-man when I was in high school. I'm still inclined to dig my feet in and push back harder when that LEGAL line is CROSSED.

 

[Mike]

Does anyone have a definition of traveling from a Texas court case? Seems to me that that would be a good place to start. And also to see if the burden is on the accused to assert a "traveling" defense, or, if the burden is on the state to prove that you were not "travelling" as an element of the offense of carrying a handgun.

It appeards to me that if you are "traveling," whatever that means, you can legally carry the handgun, openly or concealed, regardless if you have a CHL or not.

However, given that the legislature has already said non-permit holders can carry concealed vehicles without a permit, the typical gun owner will simply carry concealed to avoid problems until we can get this open cary thing clearly legalized in Texas.

 

[rushcreek2]

Does anyone have a definition of traveling from a Texas court case? Seems to me that that would be a good place to start. And also to see if the burden is on the accused to assert a "traveling" defense, or, if the burden is on the state to prove that you were not "travelling" as an element of the offense of carrying a handgun.

It appeards to me that if you are "traveling," whatever that means, you can legally carry the handgun, openly or concealed, regardless if you have a CHL or not.

However, given that the legislature has already said non-permit holders can carry concealed vehicles without a permit, the typical gun owner will simply carry concealed to avoid problems until we can get this open cary thing clearly legalized in Texas.

MOOSANI V. THE STATE OF TEXAS -1995 www.io.com/~velte/moosani.htm

HAVING TO DO WITH A CASE ARISING OUT OF HARRIS COUNTY (HOUSTON - ofcourse)

This case provides some insight into PRE-CHL Texas handgun case law. This case reveals WHY the CHL law was so necessary in Texas. Terms such as "habitual carry", and ofcourse much discussion of TRAVELING - given that was the general method of handgun carry pre-CHL.

You can readily see in reading the progression of thought in this case that the Motorist Protection Act of 2007 was definitely needed also - in order to shore up the "traveling" exception against the anti-handgun mentality of primarily Houston Metro law enforcement at the time. Interesting perspective by the court stating that the "traveling" exception was intended to allow travelers on the highway to keep a handgun in their carriage, or saddlebag for protection while on the highways.

Since the 2007 change in the law allowing unlicensed vehicle carry there really hasn't been a cause for action in the courts to deal with INSIDE THE VEHICLE carry - short of Section 42.01 disorderly conduct - display of a firearm in public with intent to alarm. This concern is precisely why the provision proscribes carry of a handgun in plain view while inside a vehicle.

At the present - those of us who DO TRAVEL ALOT IN TEXAS are more concerned with the issue of when we are AWAY FROM THE VEHICLE while still in the course of travel.

The court's discussion in MOOSANI also addresses that issue - at least offering some recognition of the fact that the "TRAVEL" experience may well entail the necessity of exiting the "carriage", or dismounting the horse in order to pursue personal needs that accompany traveling. The court acknowledged that certain travel related activities ( food, shelter, aquiring TRAVEL RELATED provisions & services) are encompassed under "traveling", even though progress is temporarily suspended.

Presently the only issue I see centers on "open carry" of a handgun when OUTSIDE the vehicle while traveling. I MAY DECIDE - and frequently do - to not conceal upon exiting my vehicle while traveling in Texas depending on the circumstances. The point is that under Texas law concealed/not concealed isn't really the issue. CARRY OF A HANDGUN is the issue, and OUTSIDE the vehicle there is no proscription of open carry while traveling. The failure to conceal by a CHL holder provision of 46.035 (a) is the only proscription against outside vehicle open carry in Texas, and one view at least is that traveling trumps the CHL. That point hasn't been settled by any court case, but that ONLY applies to TEXAS CHL's.

My point is that Texas law - unlike the law of most other states makes no real distinction between concealed and nonconcealed carry of a handgun. I say this even though Section 46.02 was intended to regulate CONCEALED carry. Reading the Georgia State constitution's right to keep and bear arms - it is practically identical to Texas' version with the exception of Georgia RTKBA using the word "concealed".

My personal view regarding burdens of proof - it's kind of like an airplane . An airplane is either in the air, on the runway, or in the hanger. It's just not that complicated.