Texas Vehicle Carry without CHL (Worrisome DPS website info/case law)

[StrikeFire83]

This is not another one of those "my cousin Skeeter wants to know 'bout carryin in his car" threads. I'm a law student, and I'm well aware of 46.02 and the bills that created it. My issue stems from info on the DPS website's FAQ section, and several cases that I've run across, which, while old, HAVE NOT been explicitly overruled.

http://www.txdps.state.tx.us/administration/crime_records/chl/chlfaqs.htm

56. Can I carry a handgun in my personal vehicle without a permit?

Yes. Section 46.02, Texas Penal Code was amended to allow a person to carry a handgun in a motor vehicle that is owned by the person or under his/her control. The weapon must not be in plain view, and the person must not be engaged in criminal activity other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic. Finally, a person carrying a handgun in his/her car must not be prohibited by law from possessing a firearm and the person cannot be a member of a criminal street gang as defined in Section 71.01.

...but then just two "answers" down we find this little gem:

58. If the handgun is on the seat beside me, am I still considered to be "carrying"?

Yes. The statute refers to carrying a gun "on or about" your person. Texas courts generally have considered this to include any gun within your reach, including one stored in your glove compartment.

And now the text of 46.02

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.

(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

(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.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

1. Obviously, if you're driving a car, one of the MOST logical places to conceal your handgun WOULD be your glove compartment. If you drive a regular cab pickup truck, the ONLY place to conceal your handgun would be the glove compartment.

2. Also, as I read the statute, you CAN conceal a handgun in the glove compartment or even ON YOUR PERSON while inside your vehicle just so long as you don't place the weapon in plain view.

And to complicate matters further, we have a few wonderful cases; and although they pre-date the 2007 change to 42.06, they HAVE NOT been explicitly overruled.

Bouldin v. State, 440 S.W.2d 859 (Tex Crim. App. 1969) (handgun in locked glove compartment was "on or about" defendant's person and sufficient to sustain conviction for unlawfully carrying a weapon).

Booth v. State, 344 S.W.2d 885 (Tex. Crim. App. 1961) (Pistol in locked glove compartment sufficient to sustain conviction).

Hutspeth v. State, 254 S.W.2d 130 (Tex. Crim. App. 1953) “Proof that appellant carried a pistol in the glove compartment of his car warranted conviction of carrying on or about his person a pistol.”

Franklin v. State, 183 S.W.2d 573 (Tex. Crim. App. 1944) “Peace officers apprehended appellant driving his automobile along a public highway. In the glove compartment of the car they found a pistol, This is the State’s testimony and is sufficient to show a prima facie case of guilt.”

I know these are ancient cases, referring to a version of a statute that no longer exists, but they've never been explicitly overruled either. Lawyers out there, help a rising 2L out! Many thanks.

 

[StrikeFire83]

22 views and no reply! Come on Texas lawyers, I know this is bothering somebody else!

 

[dogtown tom]

Ianal........

I'm not sure what your question really is.........

Those cases don't need to be "overruled" and haven't been "overruled" because they occured before the present law existed. It is doubtful they ever would be as the time limit for an appeal expired years ago.

Just because the law changes doesn't mean all previous convictions are automatically overturned. It just means no one can be charged for the same action after the law took effect.

It's pretty clear as to how, where and when you can carry a handgun in your car in Texas.

 

[Double Naught Spy]

Yeah, what is your query? What comments are you hoping to have addressed?

 

[StrikeFire83]

I guess I just don't understand why the DPS would put that bit about glove box carry on their FAQ. Clearly a gun lying on the front seat is NOT concealed, and would violate the statute. But a gun in a glove box IS concealed, so why would they remind the reader that "Texas courts have ruled that a gun in the glove box is considered 'on or about' your person." Who cares? If you're inside of your vehicle, what does it matter That you are 'considered to be carrying' because you are in one of the places (like your home/residence) where it's OKAY to carry without a CHL?

Maybe I'm just paranoid.

 

[Art Eatman]

SFAIK, 46.02 is satisfied as long as the handgun is not in view. What with the absence of any news or blog-gripes saying otherwise, I'd not be worried about it.

 

[jfrey]

The easiest answer to your question is to get a Texas CHL and don't worry about it. The law says the gun must be concealed in the vehicle. Question 56 is quite clear. Q58 doesn't seem to really be relevent to it. I would also suspect that the cases you sited had other circumstances attached to them.

 

[ranburr]

You can carry a gun on the seat if you throw a towel or something over it. It simply must be concealed.

 

[jdh]

Question 58 was there before the law change and has not been updated. It won't be as long as certain bureaucrats want the people to believe they cannot carry in the car.

 

[henschman]

Yeah, nothing to be worried about. While it would still be carrying a weapon on or about your person to have it concealed near you in a car, it fits the exception allowing for concealed carry in a vehicle, and is therefore lawful.

 

[JohnKSa]

Clearly a gun lying on the front seat is NOT concealed, and would violate the statute.

You're mixing two things and making an unjustified assumption at the same time. The question about the gun on the seat was ONLY about whether or not the person would be considered to be carrying in the legal sense.

1. Your assumption that a gun on the seat is not concealed is unjustified. You can have a gun lying on the front seat AND still have it concealed if it is in a case or covered by something. Years ago, before the CHL laws passed, I used to have a shotgun lying on the back seat of my car on occasion. It was lying on the back seat but it was also concealed because it was covered with a towel that matched the color of the seats. The matching colors plus a light window tint made it impossible to tell that there was anything on the back seat at all.

2. The question did not address whether or not having a handgun on the seat was a violation because that was not part of the question.

So they answered the question that was asked and didn't address the unasked question you read into it about whether or not a violation had occurred. The answer was yes, if you have a handgun on the front seat, you are carrying the handgun in the legal sense. The issue of whether or not it would be a violation to have the gun on the seat wasn't part of the question.

Assuming you meet the requirements in the law (not engaged in criminal activity other than traffic misdemeanor, handgun is concealed, not a gang member, etc.) then it is not a violation to have a handgun in the car whether or not you are considered to be carrying it in the legal sense and regardless of where the gun is placed. It could be on your person, under the seat, in the glove box**, on the seat next to you (concealed, of course) or any other place that conceals it.

I agree with the earlier response about precedent. When the cases in question apply to a law that didn't exist at the time of the cases then the disposition of those cases means very little.

**By the way, I generally advise against glove box carry. If you are stopped in TX the officer is going to ask you for proof of insurance and most people carry their proof of insurance in the glove box. Your traffic stop will be a lot less stressful for everyone involved if you can retrieve your proof of insurance without having to juggle a handgun. If you're going to carry your handgun in the glove box, put your proof of insurance somewhere else, and vice versa.

 

[whatever]

Those cases haven't been overruled and more than likely WON'T be overruled until someone tries to cite the case as an argument in court. The fact the new laws now exist make it exteremely unlikely that anyone would ever cite the case in any sort of brief or oral argument.

Although, those cases would certainly be ripe fodder for a law professor to use in class recitation/exam.