DPS PUBLICATION: Concealed Handgun statutes
& related weapons laws can be found at this
webpage.
The Unlawful Carrying of a Weapon (“UCW”)
statutes have been amended as of Sept. 1, 2005.
I have heard many people say that the new law
allows people to carry handguns in their car without
a Concealed Handgun License. I DO NOT TOTALLY
AGREE WITH THIS STATEMENT.
There are defenses to carrying a weapon that
include, but are not limited to, traveler's defense
(30 miles+ journey, crossing county lines, and/or
overnight trip are factors established by caselaw)
and while directly en route to/from a legitimate
fishing/hunting/sporting activity (in which case
I recommend locked or boxed guns separate from
empty magazines and ammo).
Also, by caselaw, one can carry a handgun to
and from home to one’s place of business
as long as not habitually carried and for legitimate
purpose, like making a deposit at the bank or
carrying valuables; also buying/selling a gun,
and repairing a gun, etc.
RELY ON THESE DEFENSES AT YOUR PERIL.
A wise attorney once opined, “You may be
able to beat the rap, but you can’t beat
the ride.”
Let’s look at the relevant sections of
the law:
The UCW statute (penal code section 46.10) says
that it does not apply to some common scenarios
(amongst other things):
· is on the person's own premises or premises
under the person's control unless the person is
[a licensed security guard]
· is traveling;
· is engaging in lawful hunting, fishing,
or other sporting activity on the immediate premises
where the activity is conducted, or is directly
en route between the premises and the actor's
residence, if the weapon is a type commonly used
in the activity;
· is carrying a concealed handgun and [a
valid CHL per the CHL rules]
The new law gun owners are talking about is:
(i) For purposes of Subsection (b)(3)[travelling],
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.
In my opinion, all this new law does is create
a presumption of traveling. This presumption of
traveling can be overcome by the State in a trial.
The new law really doesn’t change much in
that you can still be arrested, bond out, hire
a lawyer, and take your case to trial to prove
the traveller's defense (inapplicability), except
now that it's to watch the State attempt to disprove
the presumption of a valid defense by offering
proof the person charged was not traveling based
on the definition of traveling in state case law.
The State can show, for example, the person arrested
for UCW was going to work, the store, taking a
Sunday drive, etc., so consequently, they did
not meet the test of traveling as defined by case
law. The easiest way the State can overcome or
rebut the presumption is with information provided
to the arresting officer, such as statements by
the Defendant. If you are stopped and are not
a CHL holder, I would not disclose the weapon.
If asked I would state "No sir, I have no
illegal drugs or weapons in the car." You
have no duty to disclose as a non-CHL holder,
whereas as a CHL holder you must show your CHL
and inform the officer. Keep in mind the defenses
applicable to you and don't let the officer negate
them during any questioning. "I'd prefer
not to answer any questions unrelated to this
traffic stop, Deputy." Or perhaps "I'm
directly on my way home from the range/ranch"
or something to that effect would be better than
"Yes I am carrying a concealed weapon in
my car, I am not engaged in criminal activity
other than a minor traffic violation, I am not
a gang banger, I am otherwise eligible to possess
the weapon, and I am driving to the corner store
to get some Krispy Kreme donuts." Remember
"loose lips sink ships!" You have a
right to remain silent - exercise it. And keep
in mind False Report to a Peace Officer is a crime,
so it’s better to remain silent and rely
on the presumption than lie about it and get caught.
If the State has no information, it cannot rebut
the presumption.
In my opinion, it’s better to
get the CHL and not have to argue about whether
a defense applies in court. I recommend
that if you really need to carry one in the pipe
in your vehicle, get a CHL or carry a legal rifle,
which is generally permitted as long as you are not convicted of or on
deferred adjudication for a felony, convicted of family violence,
subject to a protective order, otherwise prohibited by state or federal
law from possessing a firearm, or in a place where weapons are
prohibited.
REMEMBER: YOU CAN BEAT THE RAP, BUT YOU
CAN'T BEAT THE RIDE!
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