How to handle Border Patrol checkpoint?

[txinvestigator]

I think the key point we're all overlooking in the fine points is this:

Defending yourself in court costs you. Avoiding the trip to court is ALWAYS the better option. I have NO interest in being a poster child for case law.

None of that matters. The allegation was that traveling no longer exists as a non-applicability because somehow the law that traveling is not applicable to overrides the traveling non-applicability.

Clearly it does not.

 

[TexasRedneck]

None of that matters. The allegation was that traveling no longer exists as a non-applicability because somehow the law that traveling is not applicable to overrides the traveling non-applicability.

Clearly it does not.

NOW ah need an aspirin....:1zhelp:

 

[Graciemay]

My fiance is a BP agent. Best thing to do when you are going through a checkpoint is to put both hands on the wheel so that they are visible to the agent, take off sunglasses, and have your window rolled down completely. Some may ask for the back windo to be rolled down so that they may look back there. While you are talking to them, if they have dark nonsee through sunglasses on, its for a reason. they arent looking at your pretty face, they are doing their job. No need to admit that you have a weapon, unless they ask. Then I would advise you to tell the truth. And don't say oh yea.. here it is, and reach for it. keep your hands where they can be seen, and tell them where it is

 

[TexasRedneck]

I've never had a problem w/the BP - in fact, I've generally found 'em to be courteous and polite - especially when they're baking in the hot Texas Heat! I will admit to taking a casual attitude to the checkpoints, though - probably because of the 30+ years of routinely passin' through 'em. They seem to take it in stride, though - and once in a while will even smile at a small joke. I generally don't try it, though - they're usually busy with traffic backin' up, so I try ta make it quick an' easy!

 

[randmplumbingllc]

That is incorrect. Anyone can carry a handgun in their vehicle in Texas as long as these conditions are met;

1) handgun not in plain view
2) you are not prohibited by law from possessing a firearm
3) you are not a member of a criminal street gang
4) you are not committing a crime and the time. (traffic violations don't count)

Traveling is not part of the equation, and the weapon need not be "stowed" whatever that means.


In that case, there is no legal requirement to disclose to a peace officer that you are carrying. As I have already said, even with a CHL you do not have to disclose to a Border Patrol Officer, as he is NOT a Peace Officer under Texas law.

I have been follwing this whole thread. Can SOMEONE please explain the statute in PLAIN english ?

 

[txinvestigator]

I have been follwing this whole thread. Can SOMEONE please explain the statute in PLAIN english ?

It is easy. Section 46.02 makes it unlawful to carry on or about your person a handgun, illegal knife or club if you are not;

on your own premises or premises under your control (like a business you own or have control of)

inside of a motor vehicle that you own or is under your control.

With me so far?

If you are in either of those places, then you CAN carry a handgun, illegal knife or club on or about your person.

Then the law adds a stipulation for the car carry of a handgun;

the handgun must be concealed

you cannot be a member of a criminal street gang

you cannot be engaged in criminal activity when you have the handgun (traffic violations and city ordinance violations do not put you in violation of this law)

you cannot be prohibited by law from possessing a firearm.




Any questions?

 

[TexasRedneck]

Any questions?

Yeah, man.........


Who does your hair?

 

[randmplumbingllc]

It is easy. Section 46.02 makes it unlawful to carry on or about your person a handgun, illegal knife or club if you are not;

on your own premises or premises under your control (like a business you own or have control of)

inside of a motor vehicle that you own or is under your control.

With me so far?

If you are in either of those places, then you CAN carry a handgun, illegal knife or club on or about your person.

Then the law adds a stipulation for the car carry of a handgun;

the handgun must be concealed

you cannot be a member of a criminal street gang

you cannot be engaged in criminal activity when you have the handgun (traffic violations and city ordinance violations do not put you in violation of this law)

you cannot be prohibited by law from possessing a firearm.




Any questions?

See, now THAT I can understand. Plain English !

Thank you sir.

 

[DoubleActionCHL]

Excuse me, in 46.15(b), there is not definitions. It simply says if you have CHL then 46.02 does not apply to you. It also says the same about traveling.

It seems as though it does define the concealed handgun license, referencing relevant Government Code:

Section 46.15
(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;

Cause you don't want to.

Nope, not at all. I'm simply a realist.

words have meaning. That what semantics are, the meaning of words. So whats your point?

Well... that was a whole bunch of nothin! You know exactly what I'm saying. You're arguing the idealistic model of the legal system versus the realities of people, politics and agendas.

Civics 101. John does not have to counter anything. The jury MUST presume he is traveling. The prosecution must prove that he was not beyond a reasonable doubt.

Ah... so you're saying that John need not present a defense; that the jury will, based on the presumption alone, dismiss the prosecutor's assertion that John was not traveling. Do criminal defense attorney's know about this?

Can you cite a case (within the last few decades) where someone open-carried while traveling on foot and successfully escaped prosecution by invoking the traveling exception AND without presenting any sort of defense to that effect?

 

[txinvestigator]

Can you cite a case (within the last few decades) where someone open-carried while traveling on foot and successfully escaped prosecution by invoking the traveling exception AND without presenting any sort of defense to that effect?

can YOU cite a conviction?

 

[M. Sage]

You are completely wrong. All Case Law still stands, as does the 46.15 N/A.

Case law can (often) be nullified by legislative changes.

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 not1) 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.

Please tell me how the bolded language could do anything but exclude the traveling requirement. I'd also like to see the code section that requires (required) traveling for exemption, as I've honestly never seen it. Then again, I moved to TX after the law was changed to allow concealed handguns inside motor vehicles.

Ah, I see... You can open-carry while traveling. Woah. Now that's news to me.

Time to have some fun.

 

[Renegade]

Case law can (often) be nullified by legislative changes.

Hasn't happened in this case. Plus much of it has found "right under the Constitution", so legislative changes would not affect it, only Constitutional changes.

 

[txinvestigator]

Case law can (often) be nullified by legislative changes.

Please tell me how the bolded language could do anything but exclude the traveling requirement. I'd also like to see the code section that requires (required) traveling for exemption, as I've honestly never seen it. Then again, I moved to TX after the law was changed to allow concealed handguns inside motor vehicles.

Ah, I see... You can open-carry while traveling. Woah. Now that's news to me.

Time to have some fun.

As I have written repeatedly, if you are a person who is traveling, then ALL of 46.02 does not apply.

Texas Penal Code
Sec. 46.15. NONAPPLICABILITY.

b) Section 46.02 does not apply to a person who
1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2) is on the person's own premises or premises under the person's control unless the person is an employee or agent of the owner of the premises and the person's primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event the person must comply with Subdivision (5);
(3) is traveling;
(4) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;
(5) holds a security officer commission issued by the Texas Private Security Board, if:
(A) the person is engaged in the performance of the person's duties as a security officer or traveling to and from the person's place of assignment;
(B) the person is wearing a distinctive uniform; and
(C) the weapon is in plain view;
(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;
(7) holds a security officer commission and a personal protection officer authorization issued by the Texas Private Security Board and is providing personal protection under Chapter 1702, Occupations Code;
(8) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(9) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person's residence and is carrying the weapon unloaded.

 

[DoubleActionCHL]

can YOU cite a conviction?

Beats me. That would involve more work than I'm willing to invest in this debate. It's also highly unlikely that an "open carrying while traveling on foot in Texas" case exists.

My apologies for the delayed response; busy weekend.

The concept of presumption, as I understand it, was added to 46.15 in 2005. My misgivings on this subject result from dated statements from influential DAs of the time, (Chuck Rosenthal being one of the most notable) that they would simply ignore these changes (even though the language added a definition which has since been repealed) and prosecute aggressively.

My confusion (and this is a new confusion, not to be confused with my old confusions) comes from the fact that 46.15(i), which stated:

(i) For purposes of Subsection (b)(3), 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.

...was repealed in its entirety in 2007. Did the striking of this subsection not nullify the "presumption" of traveling?

My other comments suggesting that the concept of "traveling" is effectively nullified by the MPA do not address the statute in the literal sense, but how courts are likely to apply the modifications. These comments are based on opinions of some folks who know much more on this subject than I, and I believe the opinions might have merit.

The horse is dead, but I'll be happy to beat it if you will. Maybe I'll learn something.

 

[txinvestigator]

My apologies for the delayed response; busy weekend.

I hope by busy you were having fun.

My confusion (and this is a new confusion, not to be confused with my old confusions) comes from the fact that 46.15(i), which stated:

(i) For purposes of Subsection (b)(3), 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.

...was repealed in its entirety in 2007. Did the striking of this subsection not nullify the "presumption" of traveling?

You are correct that there is no presumption of traveling anymore. However, traveling still exists as a activity where 46.02 does not apply.

My other comments suggesting that the concept of "traveling" is effectively nullified by the MPA do not address the statute in the literal sense, but how courts are likely to apply the modifications. These comments are based on opinions of some folks who know much more on this subject than I, and I believe the opinions might have merit.

Four things there; 1) If the legislators did not wish to have "traveling" as a non-applicabilty, it would have been removed.

2) Prior to 2005 traveling has been a non-applicability. In fact, all of the things listed in non-applicability used to be a defense to prosecution. Your CHL used to be a defense to prosecution, so the burden of proof WAS on the individual rather than the state.

3) When the legislators added the presumption in 2005, they did not make it a definition. You still could have been traveling if you were outside of the presumption. Had they made it a definition, then ONLY acts within the definition would have been lawful. There is no reason to believe that the legislators were trying to restrict carry with the MPA.

4) If I am meeting 46.15, then during that time 46.02 is non-existent.

If I am traveling, have a CHL, am engaged in a lawful hunting, fishing or other sporting activity where a handgun is commonly used, or a security guard following the laws, there is no 46.02 for me during those times.

 

[DoubleActionCHL]

I hope by busy you were having fun.

Sadly, no...

You are correct that there is no presumption of traveling anymore.

Not to pick knits, but I recall someone saying...

However, traveling still exists as a activity where 46.02 does not apply.

Four things there; 1) If the legislators did not wish to have "traveling" as a non-applicabilty, it would have been removed.

2) Prior to 2005 traveling has been a non-applicability. In fact, all of the things listed in non-applicability used to be a defense to prosecution. Your CHL used to be a defense to prosecution, so the burden of proof WAS on the individual rather than the state.

3) When the legislators added the presumption in 2005, they did not make it a definition. You still could have been traveling if you were outside of the presumption. Had they made it a definition, then ONLY acts within the definition would have been lawful. There is no reason to believe that the legislators were trying to restrict carry with the MPA.

4) If I am meeting 46.15, then during that time 46.02 is non-existent.

If I am traveling, have a CHL, am engaged in a lawful hunting, fishing or other sporting activity where a handgun is commonly used, or a security guard following the laws, there is no 46.02 for me during those times.

No, I don't believe they were trying to restrict carry by passing the MPA. In fact, I believe they were trying to simplify the conditions under which a citizen can carry, making life a bit easier for everyone involved. Some obviously implied restrictions would result if the 'traveling' subsection was repealed.

'Definition' is obviously an incorrect term; this was more of a baseline establishing minimum requirements for law enforcement to apply presumption of traveling.

The 'traveling' exception or inapplicability, as I understand it, was intended to go away in 2007, but lawmakers couldn't reach an agreement. The 'guidelines' for traveling (46.15(i)) were stricken and effectively reapplied under 46.02 as exceptions to unlicensed carry as part of the MPA. The reason, I'm told, is the simplification of prosecuting under 46.02 without the complex case law encumbrances of 46.15 and 'traveling.

 

[txinvestigator]

Sadly, no...



Not to pick knits, but I recall someone saying...

Two different things. There was a "presumption" for traveling that mean IF you were doing the things in the presumption, then you were presumed to be traveling. That took the decision away from a jury. Or was supposed to.

The other "presumption" we discussed was the presumption of innocence all person are entitled to.

The 'traveling' exception or inapplicability, as I understand it, was intended to go away in 2007, but lawmakers couldn't reach an agreement. The 'guidelines' for traveling (46.15(i)) were stricken and effectively reapplied under 46.02 as exceptions to unlicensed carry as part of the MPA. The reason, I'm told, is the simplification of prosecuting under 46.02 without the complex case law encumbrances of 46.15 and 'traveling.

My understanding as well. The MPA also made it abundantly clear that car carry was legal, period.

However, as I have stated, there is more than one way to travel; and if I meet 46.15 then 46.02 does not exist.

 

[pheet17]

You guys are killing me, but thanks for breaking down some of these points. Easy to see how there are so many interpretations of the law.

Now, can someone pass the butter??

 

[txinvestigator]

We probably could have had this conversation in about 10 minutes face to face. The internet seems to drag it out.

DACHL is a good guy, and I have enjoyed the conversation.

 

[TxEMTP69]

Always good to see a conversation like this one when there are no keyboard commandos throwin BS at ppl. Lots of good info