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TX Casle Doctrine/auto et.al.

Discussion in 'Legal' started by zedchild, Feb 21, 2011.

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  1. zedchild

    zedchild Member

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    Howdy, does anybody know if case law has set precedent on conditions which would cover a person to have a weapon while NOT in a auto; i.e. riding bicycle with saddle bags, or walking/hiking with a backpack(not a small day-bag or book-bag)... would this be legal. weapon is in saddle bags and can not be accessed while actually riding the pedal-cycle, or while hiking with the weapon in the pack, as long as no other laws are violated?


    thanks much
    zed
     
  2. TexasRifleman

    TexasRifleman Moderator Emeritus

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    I wouldn't think so. The statutes are pretty clear. The unlicensed carry law uses the term "motor vehicle" which has a very specific meaning.

    Bicycles do not meet that definition at all.

    The so called "castle doctrine" is a different law entirely and has nothing to do with carrying a firearm.

    PC 46.02 says in part:

    It then goes on to define "premises" somewhat:

    Notice that it doesn't even include a tent at a campsite. I think stretching it to saddle bags on a bicycle would be a heck of a feat. Texas law doesn't address whether the gun is loaded, unloaded, reachable or not.

    All that said, long arms are a different thing completely. Texas has pretty much no laws regarding the carry of rifles or shotguns, exceptions being places where firearms are prohibited specifically of course; schools etc.
     
  3. hirundo82

    hirundo82 Member

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    As TexasRifleman said, neither of the situations you cite would fall under the motor vehicle exception to 46.02, so unless you fall under one of the §46.15 exceptions (eg you are travelling, en route to the range, etc.) you can't carry a handgun without a valid CHL.
     
  4. zedchild

    zedchild Member

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    what about PC9.41

    protection of one's own property? i do hold a current CHL (tx) but i do not carry the weapon on my person. and i do travel by pedal-cycle and by hiking? also, what is legal requirement of LEO demanding to see my ID in said situations? i.e. have weapon but in pack and not readily accessible.
     
    Last edited: Feb 21, 2011
  5. hirundo82

    hirundo82 Member

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    PC §9.41 really doesn't apply here--you have the right to use force or deadly force in specific circumstances to protect your property, but that doesn't excuse you from the §46 restrictions on what weapons you can carry and where.

    If you have a CHL you're good to go. Texas law prohibits carrying a handgun "on or about" your person, and having it in a saddlebag or backpack would qualify. The only exception I can think of would be if the gun was locked inside your bike's saddlebags and you therefore can't readily access it--I would think that would be analogous to having it locked in the trunk of a car.

    Texas law required you to present your CHL and valid ID to an officer any time you are asked to identify yourself and you are carrying a handgun under the authority of your CHL--ie on or about your person and you don't qualify for one of the 46.02 exceptions at the time.

    Note this is more stringent than usual--you normally can't be forced to provide ID unless you are driving (you can be required to identify yourself if you are being detained, but that has never been held to require providing ID to the officer). You are required to provide ID if you are carrying on your CHL, although there isn't a penalty anymore for failing to do so.
     
  6. Grunt Medic TXARNG

    Grunt Medic TXARNG Member

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    With respect, there is no such thing as an 'unlicensed carry law' here in Texas. The 'Castle Doctrine' simply states you have the right to defend your person, home, or vehicle with deadly force - it has nothing to do with carrying weapons.

    Separately, unless you have a CHL, unlawfully carrying a weapon is an offense. It is an affirmative defense to prove you are 'traveling' - a vague and poorly defined term, but one which has been interpreted by the courts to mean, basically, going away from one's domicile, or residence, for an extended trip of some kind. There are no exact definitions or parameters. In several cases of Texans being found to have a handgun in their vehicle, courts have found the defendants 'habitually carried' the weapon, and thus were not eligible to claim the traveling exemption - and so were convicted of unlawfully carrying.

    In short, you need to get your CHL if you want to carry a weapon in your vehicle for self-defense. Without a CHL, you should transport firearms cased and out of sight. Oh, and you should NEVER advertise to people you have firearms in your vehicle or on your person, except as required by interaction with Law Enforcement.
     
    Last edited: Feb 21, 2011
  7. TexasRifleman

    TexasRifleman Moderator Emeritus

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    The "traveling" part of the law has been gone for years now.

    Again, it hasn't been that way in years. You need to read the current penal code section 46. There have been many changes over the last few years.

    There is a statute that addresses unlicensed carry, and as I mentioned it has nothing to do with Castle Doctrines. PC 46.02 allows for carrying a handgun without a CHL in certain circumstances, one of those being inside a motor vehicle that is under your control. That's unlicensed carry though the law doesn't specifically call it that. It specifically says motor vehicle and that is clearly defined in other parts of the law. It absolutely does NOT include a bicycle.
     
  8. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Well if you have a CHL you don't need to carry it "on your person". In your saddlebags would be "on or ABOUT your person" as hirundo says. If you have a CHL this entire conversation is pointless, you can carry already in your saddlebags or backpack.
     
  9. Grunt Medic TXARNG

    Grunt Medic TXARNG Member

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    Here is the current statute - I have bolded selected portions.
    So if you get a DUI or any other minor crime except specified traffic offenses and have a gun in your vehicle, you can also be charged with unlawfully carrying a weapon.
     
  10. Grunt Medic TXARNG

    Grunt Medic TXARNG Member

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    Rifleman - thank you for pointing out the areas I was in error on. I am still working to learn the law in detail before carrying. The traveling defense is indeed dead, and I apologize to my fellow members for posting what I now know to be outdated information. I will be more careful in the future - 'a little knowlege is a dangerous thing'.
     
  11. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Oh it's no big deal, just important to note that some big time changes have happened recently. That old traveling stuff confused an awful lot of people, and probably got many innocent folks in legal trouble for no reason.

    Sure glad it's gone :)

    A really good resource is this document at the DPS website, has all the latest changes all in one place:

    http://www.txdps.state.tx.us/InternetForms/Forms/CHL-16.pdf
     
  12. Grunt Medic TXARNG

    Grunt Medic TXARNG Member

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  13. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Because Texas legislators are morons I guess.

    Note that in hirundo82's post above he points out another mistake they made.

    It's still illegal not to show your CHL to an LEO when he asks for ID if you are carrying a gun, but the penal code no longer has a criminal penalty associated with it, they removed that.

    So, it's illegal but if you break that law, nothing at all happens.

    Doesn't make sense, but sometimes it's easier for legislation to pass with one line change rather than re-writing things or that is how it was explained to me when I made the mistake of asking someone.

    So yes "traveling" is still an exemption but you no longer need to rely on that if you meet the other provisions of 46.02.

    I suppose one case where it might still apply is if you were a passenger in a car. 46.02 says you can carry if the car is "owned by you or under your control" but say you were riding in the back seat of someone else's car. You could carry under the "traveling" exemption I suppose but then all the risks you pointed out earlier show up again; what is traveling etc.

    Pretty goofy for sure.
     
  14. DKSuddeth

    DKSuddeth Member

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    and then this?
    this is it? this is your excuse for telling someone that the traveling exemption is no longer there, yet 46.15 is clearly still valid law?

    I had this same conversation with a CHL instructor when I was undergoing my mandatory training class, even though he supposedly had the latest CHL handbook of laws that he gave every one of us.

    people need to get a better understanding of the law in this state before they start telling others what the law is.
     
  15. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Basically the only real application of that is if you were in a taxi. Do you think that was the legislative intent, to prevent concealed carry without a permit in a taxi on short trips only? My legislator doesn't believe that to be the case, I wrote him and asked. Guess anything is possible.

    Same as the penalty for not showing the CHL, law but no penalty for breaking that law? What reason can you give for that being there if not an oversight of the legislators?

    Just because it's still in there doesn't mean that it MATTERS. If you go around behaving as if that law still has power you will be making a mistake. The penalty clause was removed because that was easier than rewriting the rest of the law, so they took the easy way out.

    As I said, I asked my legislator about the CHL permit one, his answer; it's easier to change one line in the penal code than multiple lines and people are lazy, so they change the line that has the biggest impact. That's dumb, it ends up with contradicting and pointless laws like this. But that's the explanation.

    Don't like the explanation I can't help it, but it does appear to make sense, unless you have a better reason.

    If you really believe the Legislature in Austin intentionally left the traveling provision in to cover someone in a taxi who was going on a long trip, but not in a taxi for a short trip, I guess you believe what you believe, but it doesn't make as much sense as simple oversight by the law writers.

    From a practical application of the law that traveling exclusion serves no purpose. If you want to quibble over my use of the term "gone" instead of "neutered to be useless" then I'm guilty of that.
     
  16. Greell

    Greell Member

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    Hmmm...so if I left my car at a friends house, 4 miles away, and I'm walking there while carrying(directly to my car) .......

    I wonder if anyone has ever used a line like that on a leo o_O
     
  17. hirundo82

    hirundo82 Member

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    Travelling doesn't necessarily have to be by vehicle. You could be going by bike, or horse, or on foot. There are circumstances where you are definitely travelling (eg biking from Houston to Austin), but you don't qualify for the §46.02(a)(2) exception. The confusion about car carry under the travelling exception has been taken care of, but there was no real reason to repeal the exception and it could helo some people out. This is how I've heard the reasoning behind why the travelling exception was left intact explained by Charles Cotton, who was formerly executive director of the TSRA.

    The repeal of the penalty for not presenting your CHL to a LEO was purely political. LEO groups would have screamed bloody murder if the requirement to present a CHL was completely repealed, but it was possible politically to repeal the penalty (the changed was slipped into the DPS sunset bill passed at the end of last session).
     
  18. macadore

    macadore Member

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    You can carry a long arm slung over your holders when riding a bicycle?
     
  19. macadore

    macadore Member

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    Carrying a firearm with any amount of alcohol in you system is a crime. Even if you have a CHL.
     
  20. Flintknapper

    Flintknapper Member

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    macadore wrote:



    If your question pertains to "legality", then yes. In Texas, you may openly (or concealed) carry any legal long gun...anywhere not prohibited (assuming you are not otherwise prohibited from owning/possessing the weapon).
     
  21. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Yes, strictly speaking.

    You always run the risk of getting into Disorderly Conduct area:

    "Manner calculated to alarm" being a pretty vague term.
     
  22. Flintknapper

    Flintknapper Member

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    macadore wrote:


    Nope!

    Please cite your source for this statement.

    There is no "legal limit" for CHL holders (I.E. .08 BAC), that is not to say that ANY amount of alcohol is a violation. The standard....is "impairment" and must be proven in court.
     
  23. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Sadly it doesn't offer much help.

    What "traveling" means caused many folks legal problems and that still exists now. Many district attorneys advise their LE departments to arrest and "let the jury decide" what traveling means later.

    That's why I still say the Legislature is full of morons, or at least people who don't really understand what they are doing or simply don't care. If the Legislature wanted to really help they would have defined traveling at the very least.

    Leaving what was already a very poorly written law in place doesn't seem to do a lot of good.

    There was a case before a Court of Criminal Appeals a few years ago where in a 5-4 ruling the court upheld that there was no specific definition. 4 of the 5 wanted the word "traveling" to mean what the dictionary says it means which would pretty much cover any movement, but the majority disagreed with that.

    Interesting reading on the whole "traveling" thing, the dissent in the case:

    http://www.io.com/~velte/moosani.htm#dissent
     
  24. Flintknapper

    Flintknapper Member

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    As concerns the original post, the Castle Doctrine (as already pointed out) has nothing to do with possession of a handgun.

    In the event a person (NON-CHL) wanted to carry a handgun, it would have to fall under the traveling law (still on the books) IF that person were NOT in a motor vehicle. Or... any of the other laws that pertain to legal activities, hunting, target shooting, directly en-route to certain places, etc..

    If you are in a motor vehicle (under your control..and you are not otherwise prohibited), then you would be covered by the Motorist Protection Act.


    "Motorist Protection Act" (HB 1815).

    Replacement for the “Traveling” Law Passed in 2005HB 1815 by Rep. Carl Isett (R-Lubbock)/Senator Juan “Chuy” Hinojosa (D-
    McAllen). Now called the Motorists Protection Act.
    For years, Texas law provided for a defense to prosecution against a charge of carrying a concealed handgun without a permit if the person was
    “traveling.” However, “traveling” was never defined in law. In 2005, the Texas Legislature passed a bill establishing that a person is presumed to be
    traveling if he or she is in a private motor vehicle, is not engaged in criminal activity, is not prohibited by law from possessing a firearm, and is not a
    member of a criminal street gang. The clear intent was to protect law-abiding citizens’ right to carry a handgun concealed for personal protection in
    their cars or trucks without needing a Concealed Handgun License (CHL).


    BACKGROUND AND PURPOSE

    In the 79th session, the Legislature passed a law that was intended to legalize the carrying of handguns in private motor vehicles by persons not licensed by the Texas Department of Public Safety (DPS) to carry concealed handguns. Prior to that, the law had established a “defense to prosecution” against a charge of unlawful carrying of a weapon (UCW) if you were “traveling.”

    The 2005 law established a legal “presumption” in Penal Code Section 46.15 that a person was “traveling” if he or she was in a private motor vehicle; was not engaged in criminal activity other than a Class C misdemeanor or other traffic regulation; was not prohibited by law from possessing a firearm; was not a member of a criminal street gang; and was not carrying a handgun in plain view.

    H.B. No. 1815




    AN ACT
    relating to the prosecution of certain offenses that involve carrying weapons on a person's property or in a person's vehicle.
    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    SECTION 1. Section 46.02, Penal Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:
    (a) A person commits an offense if the person [he] 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.
    --------------------------------------------------------------------

    Best thing for the OP to do is:

    A. Get a Texas CHL.

    B. Carry a long-gun (not too handy).
     
  25. macadore

    macadore Member

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    I was told this in my CHL renewal class two weeks ago.
     
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