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  • txinvestigator

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    "Traveling" was never defined under 46.15. Changes to TPC Section 46.02 effectively nullify the traveling exception by specifically outlining the requirements for unlicensed carry.


    No, 46.02 nullified CAR travel as an issue. In section 46.15 (b), taveling still remains as a time when section 46.02, in its entirety, does not apply to you.

    In the case of traveling, there is no requirement to conceal the firearm. Now, you do not have to worry of going to Wal Mart is traveling, or if going across the state is traveling if going by car.
    Target Sports
     

    DoubleActionCHL

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

    Great. You go with that. As an unlicensed individual, carry a loaded firearm unconcealed in your vehicle and, when you're arrested, cite case law and the fact that you're "traveling" under TPC Section 46.15, which means the requirements for unlicensed carry are non-applicable.

    We know what it the law says, but we also know how this will be handled in the courts. The burden of proof is on you to establish your status of "traveling," and when you have a DA with a mindset reminiscent of Rosenthal, you'll spend thousands defending yourself and you MIGHT win.
     

    txinvestigator

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    We know what it the law says, but we also know how this will be handled in the courts. The burden of proof is on you to establish your status of "traveling,"
    No, innocent until PROVEN guilty. Since it is not a defense to prosecution, but a non-applicability, the state would have to prove you were not traveling. If they cannot prove that beyond a reasonable doubt, then not guilty.

    And there are other methods of travel besides car travel.
     

    DoubleActionCHL

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    No, 46.02 nullified CAR travel as an issue. In section 46.15 (b), taveling still remains as a time when section 46.02, in its entirety, does not apply to you.

    In the case of traveling, there is no requirement to conceal the firearm. Now, you do not have to worry of going to Wal Mart is traveling, or if going across the state is traveling if going by car.

    My point is that the "traveling" concept is going to take a backseat to the MPA. Because of the ambiguity of "traveling" under 46.15 and the mounds of complex and conflicting case law, courts will look to the more specific 46.02 when handling unlicensed carry. The "traveling" defense, as a result of 46.02, becomes more difficult (expensive?) to invoke. Whether it's correct or not, if courts choose to ignore it in favor of 46.02, or it's simply too expensive to defend your position, it becomes ineffective and eventually irrelevant.
     

    DoubleActionCHL

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    No, innocent until PROVEN guilty. Since it is not a defense to prosecution, but a non-applicability, the state would have to prove you were not traveling. If they cannot prove that beyond a reasonable doubt, then not guilty.

    And there are other methods of travel besides car travel.

    Your opinion disagrees with that of the DPS legal rep, who (one of the few opinions she was willing to express) stated that the unlicensed carry requirements under the MPA effectively undermine the traveling defense or non-applicability, as courts will likely choose the more specific over the vague.

    I wouldn't want to be the test case.
     

    txinvestigator

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    My point is that the "traveling" concept is going to take a backseat to the MPA. Because of the ambiguity of "traveling" under 46.15 and the mounds of complex and conflicting case law, courts will look to the more specific 46.02 when handling unlicensed carry. The "traveling" defense,
    Stop right there. It is not a defense. If I am traveling 46.02 does not apply to me.
    as a result of 46.02, becomes more difficult (expensive?) to invoke.
    I disagree. It is the same as always, however, in most cases traveling won't be necessary if I am in compliance with 46.02.
     

    txinvestigator

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    Your opinion disagrees with that of the DPS legal rep, who (one of the few opinions she was willing to express) stated that the unlicensed carry requirements under the MPA effectively undermine the traveling defense or non-applicability, as courts will likely choose the more specific over the vague.
    Since I did not hear her argument, I can't comment specifically on it; however, I don't need the applicability of 46.15(B) if I am in compliance with 46.02. I would only need the non-applicability of 46.15(B) if I am otherwise violating 46.02, like the handgun is in plain view.



    If I am traveling, then 46.02 does not apply to me, and the "not in plain view" does not apply.

    It is no different than this; your authority to carry under a CHL comes from where? 46.02 says that you cannot carry a handgun unless on your own premises or premises under your control, or inside of your motor vehicle or one you control. So how is it lawful for a CHLer to carry a handgun at Walmart?

    The same section of law that makes you legal to carry while TRAVELING does, Section 46.15(b). If I am traveling (46.15(b)) or if I possess a valid CHL (46.15(b)), then section 46.02 does not apply to me.

    Could I claim traveling while driving across town to the dry cleaners? I think case law makes that clearly no. Can I claim traveling if I am going across the state for a trip, have suitcases in the back, etc? Case law says YES.

    See with your CHL you violate 46.02 everytime you carry. That's OK as 46.02 does not apply in that case. When I carry a handgun that is in plain view while TRAVELING, that is OK, as 46.02 does not apply to me when I am traveling.

    The only question is, "what is traveling", and I agree you take a chance depending on that, but it remains as a LEGAL and VALID exception to 46.02.

    Now if traveling were a "defense to prosecution" or an "affirmative defense to prosecution" then it would be like you assert.
     

    DoubleActionCHL

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    Stop right there. It is not a defense. If I am traveling 46.02 does not apply to me. I disagree. It is the same as always, however, in most cases traveling won't be necessary if I am in compliance with 46.02.

    My argument assumes you are not in compliance with 46.02 and are relying on "traveling" as an exception to prosecution.

    I understand that it is not a "defense," but it effectively becomes one in the courtroom when you are arrested for failing to conceal as an unlicensed carrier.
     

    txinvestigator

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    My argument assumes you are not in compliance with 46.02 and are relying on "traveling" as an exception to prosecution.

    I understand that it is not a "defense," but it effectively becomes one in the courtroom when you are arrested for failing to conceal as an unlicensed carrier.

    I don't NEED to be licensed to carry as a traveler, and there is no requirement to conceal. You are not in compliance with 46.02 when you carry under a CHL either. You cannot be arrested, as the SAME law that makes it OK for you to carry in non-compliance with 46.02 makes it lawful for you to carry while traveling.

    See the point? You are telling me that one is different from the other, but they clearly are not.
     

    DoubleActionCHL

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    I don't NEED to be licensed to carry as a traveler, and there is no requirement to conceal. You are not in compliance with 46.02 when you carry under a CHL either. You cannot be arrested, as the SAME law that makes it OK for you to carry in non-compliance with 46.02 makes it lawful for you to carry while traveling.

    See the point? You are telling me that one is different from the other, but they clearly are not.

    I understand that you don't have to be licensed to be a 'traveler'. And I understand that 46.15 does not impose any restrictions on how a 'traveler' might carry. However, 46.02 does. And to say that one "cannot be arrested" is not accurate, I believe.

    Let me give you an example: John has no CHL. He's traveling from Houston to San Antonio. While traveling, he places his handgun on the passenger seat in plain view. On the return trip, John is stopped by a State Trooper five miles from his home. The officer obviously takes issue with the visible weapon.

    Will John be arrested even though he tells the trooper he was traveling? Will the trooper believe John, or even care? Or will the trooper question the fact that John was trying to invoke the traveling exception when he was clearly only 5 miles from home, arrest him and let the courts sort it out?

    I understand exactly what you're saying. I simply believe, however, that prosecutors will be less likely to entertain the 'traveling' exception when they can get a conviction under 46.02.
     

    txinvestigator

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    I understand that you don't have to be licensed to be a 'traveler'. And I understand that 46.15 does not impose any restrictions on how a 'traveler' might carry. However, 46.02 does.
    We seem to be getting somewhere. 46.02 is irrelevant if I meet 46.15(b), such as in TRAVELING.

    And to say that one "cannot be arrested" is not accurate, I believe.

    Let me give you an example: John has no CHL. He's traveling from Houston to San Antonio. While traveling, he places his handgun on the passenger seat in plain view. On the return trip, John is stopped by a State Trooper five miles from his home. The officer obviously takes issue with the visible weapon.

    Will John be arrested even though he tells the trooper he was traveling? Will the trooper believe John, or even care? Or will the trooper question the fact that John was trying to invoke the traveling exception when he was clearly only 5 miles from home, arrest him and let the courts sort it out?
    No none knows. But if John appears to the trooper to be traveling, he should not be arrested, in fact, he cannot be lawfull arrested.

    I understand exactly what you're saying. I simply believe, however, that prosecutors will be less likely to entertain the 'traveling' exception when they can get a conviction under 46.02.

    They don't have to "entertain" anything. To prove a violation of 46.02, they have to prove "beyond a reasonable doubt" that you were NOT traveling. In actuality, it s not a exception.

    The bottom line is this;

    Traveling remains as a non-applicability in the law, and has the same weight as your CHL does. The additions to 46.02 in the DPA do not overrule or make traveling any more obscure/invalid than it makes your CHL obscure/invalid if you are in your car.

    A member of a criminal street gang who otherwise meets the CHL requirements can obtain a CHL. By your logic, he would lose the right to carry in his car because of his status. That is not the case though.
     

    DoubleActionCHL

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    A member of a criminal street gang who otherwise meets the CHL requirements can obtain a CHL. By your logic, he would lose the right to carry in his car because of his status. That is not the case though.

    No, not at all. I understand that they are separate. My point is simply that the changes in 46.02 might potentially affect the application (or non-application) of "traveling" with an on overzealous DA.

    In an ambiguous scenario, such as the example I gave, I believe it is likely that the trooper would arrest the individual. John would then be forced to assert the fact that he was traveling in a court, and while he is not necessarily required to provide proof, failure to do so would invite the prosecutor to prove otherwise. He effectively must prove he was traveling.

    I don't think we're as far apart as you might think we are. I'm just a bit more cynical than you, believing that there are activist prosecutors and judges who will purposely lean into 46.02 and away from 46.15 given an opportunity. I'm simply a layman, but my experience and observations lead me to believe that what the law says and what the law does are two very different things.

    I could be wrong.
     

    txinvestigator

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    No, not at all. I understand that they are separate. My point is simply that the changes in 46.02 might potentially affect the application (or non-application) of "traveling" with an on overzealous DA.
    No more than it would affect your CHL status, or any other item in 46.15. It just does not. 46.15 makes 46.02 not exist for a person meeting 46.15.

    He effectively must prove he was traveling.
    No, a jury must presume he is traveling (innocent) and have it proven beyond a reasonable doubt he was not.
     

    DoubleActionCHL

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    No more than it would affect your CHL status, or any other item in 46.15. It just does not. 46.15 makes 46.02 not exist for a person meeting 46.15.

    I disagree. The terms of my CHL status are explicitly defined under Texas law, where "traveling" is not. Yes, we have case law to suggest multiple definitions or aspects of "traveling," but this, in my opinion, creates a greater margin for error and opens the door for subjectivity. As I understand it, case law regarding traveling predates the automobile by nearly 50 years, which would suggest that traveling by horseback, bicycle or even on foot would qualify. Its recognition, as many would argue, varies from one jurisdiction to another. Since there are no explicit restrictions on how one might carry in Section 46.15, one could presumably open carry while traveling across Texas on foot. I just don't see that one flying.

    No, a jury must presume he is traveling (innocent) and have it proven beyond a reasonable doubt he was not.

    You're playing with semantics now. Of course, it must be proven beyond a reasonable doubt. If John doesn't provide some form of information to counter the prosecution's claim, they might easily prove that he was not traveling. While you are technically correct, he is, in effect, proving that he's traveling.

    Anyway, I think we get the point.
     

    TexasRedneck

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    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. ;)
     

    txinvestigator

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    I disagree. The terms of my CHL status are explicitly defined under Texas law, where "traveling" is not.
    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.
    Since there are no explicit restrictions on how one might carry in Section 46.15, one could presumably open carry while traveling across Texas on foot.
    NOW you get it.
    I just don't see that one flying.
    Cause you don't want to.


    You're playing with semantics now.
    words have meaning. That what semantics are, the meaning of words. So whats your point?
    . If John doesn't provide some form of information to counter the prosecution's claim, they might easily prove that he was not traveling.
    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.
     
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