Stand_Watie
Member
I'm forwarding an email
*****
Dear Peaceable Texan:
We are glad to report that Terry Keel's bill, HB 823--or actually, a
substitute bill, has passed out of committee and been sent to the full
House. The time is now to spread the word about this bill and get everyone
to contact their representatives and tell them--in no uncertain terms--to
pass it.
A copy of the substitute bill is attached in .pdf format. Please note that
the way this bill operates is to create a legal presumption that one is
indeed a "traveler" if one is with vehicle. However, note that a
presumption is only that, and police and prosecutors are still free to
attempt to rebut the presumption at trial by proving one was not traveling.
In my opinion, this change in the law will not protect citizens from
arrest, but it is a step in the right direction, and I predict it will have
the effect of vastly reducing the numbers of arrests for handguns in cars,
though it will not eliminate them. Cops that want to run you in for a
handgun in your car will still be able to do so.
My bet is that anti-gun prosecutors will try to twist the caselaw
definition of "traveling"--which arose from a hundred years of
jurisprudence where courts tried to define the defense of "traveling"--to
argue that a trip across town is not "traveling" in the sense that word has
been interpreted by the Courts, and thus, rebut the presumption. The
caselaw definition of traveling suggests a trip of substantial duration in
either time or distance. Still, this change is a large step in the
*right* direction to undo what was, and is, a Jim Crow law that was passed
in 1875--the year after Reconstruction ended in Texas.
Best Regards,
Paul Velte
*****
A BILL TO BE ENTITLED
AN ACT
relating to the applicability of the offense of unlawful carrying
of weapons to certain persons and to the consequence of certain
presumptions in the prosecution of a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 46.15, Penal Code, is amended by adding
Subsection (i) to read as follows:
(i)AAFor purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1)AAin a private motor vehicle;
(2)AAnot otherwise engaged in criminal activity; and
(3)AAnot otherwise prohibited by law from possessing a
firearm.
SECTIONA2.AASection 2.05, Penal Code, is amended to read as
follows:
Sec.A2.05.AAPRESUMPTION. (a) Except as provided by
Subsection (b), when [When] this code or another penal law
establishes a presumption with respect to any fact, it has the
following consequences:
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
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(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A)AAthat the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B)AAthat if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C)AAthat even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
(b)AAWhen this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
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C.S.H.B.ANo.A823
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(A)AAthe presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B)AAif the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C)AAeven though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
SECTIONA3.AAThe changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect at the time the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTIONA4.AAThis Act takes effect September 1, 2005.
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C.S.H.B.ANo.A823
*****
Dear Peaceable Texan:
We are glad to report that Terry Keel's bill, HB 823--or actually, a
substitute bill, has passed out of committee and been sent to the full
House. The time is now to spread the word about this bill and get everyone
to contact their representatives and tell them--in no uncertain terms--to
pass it.
A copy of the substitute bill is attached in .pdf format. Please note that
the way this bill operates is to create a legal presumption that one is
indeed a "traveler" if one is with vehicle. However, note that a
presumption is only that, and police and prosecutors are still free to
attempt to rebut the presumption at trial by proving one was not traveling.
In my opinion, this change in the law will not protect citizens from
arrest, but it is a step in the right direction, and I predict it will have
the effect of vastly reducing the numbers of arrests for handguns in cars,
though it will not eliminate them. Cops that want to run you in for a
handgun in your car will still be able to do so.
My bet is that anti-gun prosecutors will try to twist the caselaw
definition of "traveling"--which arose from a hundred years of
jurisprudence where courts tried to define the defense of "traveling"--to
argue that a trip across town is not "traveling" in the sense that word has
been interpreted by the Courts, and thus, rebut the presumption. The
caselaw definition of traveling suggests a trip of substantial duration in
either time or distance. Still, this change is a large step in the
*right* direction to undo what was, and is, a Jim Crow law that was passed
in 1875--the year after Reconstruction ended in Texas.
Best Regards,
Paul Velte
*****
A BILL TO BE ENTITLED
AN ACT
relating to the applicability of the offense of unlawful carrying
of weapons to certain persons and to the consequence of certain
presumptions in the prosecution of a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 46.15, Penal Code, is amended by adding
Subsection (i) to read as follows:
(i)AAFor purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1)AAin a private motor vehicle;
(2)AAnot otherwise engaged in criminal activity; and
(3)AAnot otherwise prohibited by law from possessing a
firearm.
SECTIONA2.AASection 2.05, Penal Code, is amended to read as
follows:
Sec.A2.05.AAPRESUMPTION. (a) Except as provided by
Subsection (b), when [When] this code or another penal law
establishes a presumption with respect to any fact, it has the
following consequences:
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
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(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A)AAthat the facts giving rise to the presumption
must be proven beyond a reasonable doubt;
(B)AAthat if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C)AAthat even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
(b)AAWhen this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1)AAif there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2)AAif the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
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C.S.H.B.ANo.A823
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(A)AAthe presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B)AAif the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C)AAeven though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D)AAif the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.
SECTIONA3.AAThe changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect at the time the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTIONA4.AAThis Act takes effect September 1, 2005.
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C.S.H.B.ANo.A823