| Author | Post |
|---|
psehorne
Regular Member
| Joined: | Tue Sep 22nd, 2009 |
| Location: | |
| Posts: | 3 |
| Status: |
Offline
|
|
Posted: Tue Sep 22nd, 2009 05:30 am |
|
Texas Penal code 46.02 prohibits carrying unless you are on your own property, enroute to your vehicle, or in your vehicle. If in your vehicle the weapon must be concealed.
UNLESS you are "traveling".
Penal Code 46.15(b)(3) states that 46.02 does not apply if you are "traveling".
Below are the pertinent laws.
"PC 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-I) 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 .O1"
and
"PC $46.1 5. NONAPPLICABILTTY. (a) Sections 46.02 and 46.03 do not apply to a person who:
...
(2) is on the person's own premises or premises under the person's control unless the person is an employee or agent of the owner of the premises and the person's primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event the person must comply with Subdivision (5);
(3) is traveling;
(4) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;
..."
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
That doesn't mean that a LEO would not arrest you and let a judge sort it out, because as you can see by the other posts in this thread, it is a common misconception that open carry is not allowed.
One problem is that there is no definition of traveling. You will hear many uninformed people state "You must be crossing a county line", or "going 3 counties away", or "also carrying luggage", etc. None of these are correct. So it is up to each jurisdiction (each local judge) to decide what their definition of traveling is.
DISCLAIMER: I am not an attorney and do not claim the above is correct. You should read the Texas Penal Codes and come to your own conclusion.
Last edited on Tue Sep 22nd, 2009 05:38 am by psehorne
|
psehorne
Regular Member
| Joined: | Tue Sep 22nd, 2009 |
| Location: | |
| Posts: | 3 |
| Status: |
Offline
|
|
Posted: Tue Sep 22nd, 2009 07:09 am |
|
There is another pertinent law:
46.01(a) A person commits an offense if he intentionally or knowingly:
...
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
|
MarlboroLts5150
Regular Member
|
Posted: Tue Sep 22nd, 2009 07:31 am |
|
| Not being a smart-a$$, but go ahead and carry openly in TX and let us know how that works out for you.
|
KBCraig
Regular Member
| Joined: | Tue Aug 7th, 2007 |
| Location: | Northeast Texas |
| Posts: | 1679 |
| Status: |
Offline
|
|
Posted: Tue Sep 22nd, 2009 11:22 am |
|
"Traveling" is not defined anywhere in the Texas Penal Code, and there is no state-wide court ruling defining the term, either.
That's why the Legislature kludged up the law in 2005 to exempt carrying in a motor vehicle by giving a presumption of "traveling", then cleaned up their first attempt via the "Motorist Protection Act" of 2007. They had to do that after the Harris County DA (Rosenthal) declared he would prosecute any non-CHL with a gun in the car, and let the courts sort it out.
You're correct that the only prohibition on carrying openly, is for CHLs who "intentionally fail to conceal". The MPA requires that guns in cars be "hidden from ordinary observation" in order to enjoy its protection, but the various other valid reasons to have a gun in the car (traveling, engaged in or directly en route to or from a sporting activity commonly requiring use of a handgun of that class, on property you own or control, etc.), make no distinction about concealed or open, loaded or not, etc.
|
Thundar
Regular Member
|
Posted: Tue Sep 22nd, 2009 04:17 pm |
|
Open carry is not prohibited in Texas if you are.......
Open carrying a rifle or shotgun.
Last edited on Tue Sep 22nd, 2009 04:17 pm by Thundar
|
mustangkiller
Regular Member
| Joined: | Tue Sep 15th, 2009 |
| Location: | |
| Posts: | 23 |
| Status: |
Offline
|
|
Posted: Tue Sep 22nd, 2009 07:12 pm |
|
MarlboroLts5150 wrote: Not being a smart-a$$, but go ahead and carry openly in TX and let us know how that works out for you.
I do it all the time when im enroute to or from a lawfull fire arms activity.I've run into a few officers and only one gave me a hard time.Granted,most of the time I'm wearing camo and it's pretty obvious what I'm up to.The only time I had an issue was with DPS.He asked why I was OCing and then read me the riot act.I asked to see his statute book and showed him the part where it say 46.02 does not apply to a person who is....blah blah blah and he appologized,thanked me and then we talked for a few minutes about hog hunting.
|
Shawn
Regular Member
| Joined: | Sat Jun 24th, 2006 |
| Location: | Missouri USA |
| Posts: | 369 |
| Status: |
Offline
|
|
Posted: Tue Sep 22nd, 2009 10:00 pm |
|
KBCraig wrote: "Traveling" is not defined anywhere in the Texas Penal Code, and there is no state-wide court ruling defining the term, either.
That's why the Legislature kludged up the law in 2005 to exempt carrying in a motor vehicle by giving a presumption of "traveling", then cleaned up their first attempt via the "Motorist Protection Act" of 2007. They had to do that after the Harris County DA (Rosenthal) declared he would prosecute any non-CHL with a gun in the car, and let the courts sort it out.
You're correct that the only prohibition on carrying openly, is for CHLs who "intentionally fail to conceal". The MPA requires that guns in cars be "hidden from ordinary observation" in order to enjoy its protection, but the various other valid reasons to have a gun in the car (traveling, engaged in or directly en route to or from a sporting activity commonly requiring use of a handgun of that class, on property you own or control, etc.), make no distinction about concealed or open, loaded or not, etc.
KBC...I believe you might be correct about a TX supreme court case defining the term, but there are a lot of TX appellate cases that do. Also, Arkansas, Missouri and Indiana are other states that have a "travelers defense" exception to concealed or open carrying of weapon's charges. They have all relied upon each other to further define the term and what it means. Here is Missouri's latest case (I believe on the subject - http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/state_v_collins.txt )
I know it has nothing to do with your case law, but it will be looked at by your courts, so it doesn't hurt to read over them  .
I think TX still has the most appellate level instruction on the subject.
|
cbackous
Regular Member
|
Posted: Wed Sep 23rd, 2009 12:18 pm |
|
| how about you just walk to your car.. everywhere you go.. haha.
|
Gator5713
Lone Star Veteran
|
Posted: Tue Sep 29th, 2009 02:27 pm |
|
cbackous wrote: how about you just walk to your car.. everywhere you go.. haha. "Walking to your car" only applies to and from your dwelling/place of residence... (when not in conjunction with another exception such as a firearms related activity)
|
jsimmons
Regular Member
| Joined: | Thu Aug 20th, 2009 |
| Location: | San Antonio |
| Posts: | 45 |
| Status: |
Offline
|
|
Posted: Tue Sep 29th, 2009 07:11 pm |
|
When you're carrying, *everything* is a firearms-related activity.
|
Ian
Lone Star Veteran
|
Posted: Wed Sep 30th, 2009 05:59 pm |
|
Lemme know how OC in Texas turns out for you, if you get a jail cell with a computer.
Last edited on Wed Sep 30th, 2009 05:59 pm by Ian
|
cbackous
Regular Member
|
Posted: Thu Oct 1st, 2009 10:57 am |
|
I am still surprised that the wonderful state of Texas doesnt have open carry yet. I mean come on, even California has unloaded OC...
**this is a very light-hearted jab at you guys, I know you guys are workin on it  **
|
SA-TX
Centurion Member
|
Posted: Thu Oct 1st, 2009 04:01 pm |
|
cbackous wrote: I am still surprised that the wonderful state of Texas doesnt have open carry yet. I mean come on, even California has unloaded OC...
**this is a very light-hearted jab at you guys, I know you guys are workin on it **
SIGH. True, so true. Well, the OC push here may get just what we need with the Supreme Court deciding whether or not the 2nd Amendment applies to the states. If it rules that it does, we will have big, new, high caliber weapon (pardon the pun) to use on the Legislature in 2011.
Given what happened last session when two very good pro-gun bills went down due to the Democrats chub-fest of a voter ID measure, I think there will be pent up demand to fix some of the bad statutes that we have on the books. With any luck, the 2010 elections will thin their ranks a bit since Obama isn't on the ballot (and those who came out specifically to vote for him will probably stay home).
Until then, all we can do is prepare, CC, and wait.
SA-TX
|
Rush Creek
Regular Member
|
Posted: Thu Oct 1st, 2009 06:12 pm |
|
Under the contemporary interpretation of Texas statutes there is no recognition of a RIGHT to carry a handgun. Certain exceptions are allowed under the law otherwise criminalizing the carry of a handgun. This ofcourse was never the intended affect - to apply the code to "law-abiding" citizenry - only "questionable" persons presumed to be engaged in criminal conduct. We all know what the criteria was for making that determination. At least " Baby - Boomers" should be able to figure it out. As I've said before - Title 10, 46.02 at the very least needs to be amended with the wording ( if not totally repealed):
"......for criminal purposes, in which case the burden of proof shall rest with the State to establish".
Currently the Texas concealed handgun LICENSE is a grant of PRIVILEGE to carry a handgun CONCEALED subject to certain restrictions. The privilege does not enhance a right as in other states where unlicensed carry of a hangun is not obstensibly criminalized.
In deciding NRA v City of Chicago The Supreme Court must CLEARLY affirm that the 14th Amendment was ratified precisely because the 2A right was being denied by states. Also the court must affirm that the right to keep and bear arms for purposes of self-defense extends beyond the threshold of the home - which ofcourse it does, or the people's right to self-defense would be restricted to the home which it certainly is not. The court has already established that a handgun constitutes a 2A arm. I don't see anyway a well regulated militia could defend the security of a free state if their defensive perimeter was limited to their homes.
Last edited on Thu Oct 1st, 2009 07:28 pm by Rush Creek
|
GaryAdrian
Regular Member
| Joined: | Fri Jan 2nd, 2009 |
| Location: | Texas USA |
| Posts: | 17 |
| Status: |
Offline
|
|
Posted: Fri Oct 2nd, 2009 04:22 pm |
|
SA-TX wrote: cbackous wrote: I am still surprised that the wonderful state of Texas doesnt have open carry yet. I mean come on, even California has unloaded OC...
**this is a very light-hearted jab at you guys, I know you guys are workin on it **
SIGH. True, so true. Well, the OC push here may get just what we need with the Supreme Court deciding whether or not the 2nd Amendment applies to the states. If it rules that it does, we will have big, new, high caliber weapon (pardon the pun) to use on the Legislature in 2011.
Given what happened last session when two very good pro-gun bills went down due to the Democrats chub-fest of a voter ID measure, I think there will be pent up demand to fix some of the bad statutes that we have on the books. With any luck, the 2010 elections will thin their ranks a bit since Obama isn't on the ballot (and those who came out specifically to vote for him will probably stay home).
Until then, all we can do is prepare, CC, and wait.
SA-TX
That is if we keep the same Governor ! I am not sure Kay Bailey is for that right.
|
Gator5713
Lone Star Veteran
|
Posted: Tue Oct 6th, 2009 02:09 pm |
|
GaryAdrian wrote: SA-TX wrote: cbackous wrote: I am still surprised that the wonderful state of Texas doesnt have open carry yet. I mean come on, even California has unloaded OC...
**this is a very light-hearted jab at you guys, I know you guys are workin on it **
SIGH. True, so true. Well, the OC push here may get just what we need with the Supreme Court deciding whether or not the 2nd Amendment applies to the states. If it rules that it does, we will have big, new, high caliber weapon (pardon the pun) to use on the Legislature in 2011.
Given what happened last session when two very good pro-gun bills went down due to the Democrats chub-fest of a voter ID measure, I think there will be pent up demand to fix some of the bad statutes that we have on the books. With any luck, the 2010 elections will thin their ranks a bit since Obama isn't on the ballot (and those who came out specifically to vote for him will probably stay home).
Until then, all we can do is prepare, CC, and wait.
SA-TX
That is if we keep the same Governor ! I am not sure Kay Bailey is for that right.
KBH is Certainly NOT who we need, but I'm not sure that Perry is either. Fortunately we now have another (better) option! Debra Medina! Check her out if you haven't already! http://www.medinafortexas.com I believe she is scheduled to attend Rodbenders BBQ on Saturday!
|
junglebob
Regular Member
|
Posted: Tue Oct 6th, 2009 11:01 pm |
|
| Something is wrong here in Illinois and Wisconsin the legislators that are against LTC legislation tell us "This isn't the wild west" I'd imagine most of them would consider Texas as part of the west. You need to tell your legislators that open carry is recognized as being legal in Wisconsin. There seems to be a growing OC movement in Wisconsin. It was thought by some that OC was legal in Illinois in rural unincorporated areas. Let me ask if someone is hunting are they expected to case their rifle or shotgun if they go from a field onto a road?
|
GaryAdrian
Regular Member
| Joined: | Fri Jan 2nd, 2009 |
| Location: | Texas USA |
| Posts: | 17 |
| Status: |
Offline
|
|
Posted: Wed Oct 7th, 2009 04:17 pm |
|
Gator5713 wrote:
KBH is Certainly NOT who we need, but I'm not sure that Perry is either. Fortunately we now have another (better) option! Debra Medina! Check her out if you haven't already! http://www.medinafortexas.com I believe she is scheduled to attend Rodbenders BBQ on Saturday!
Look at this way, Texas is much better off than the combined efforts of the rest of the nation.
Why? Look who is leading us? We don't need to change what's working.
If it anit broke, don't try to fix it!
|
Gator5713
Lone Star Veteran
|
Posted: Wed Oct 7th, 2009 04:55 pm |
|
junglebob wrote: <SNIP> Let me ask if someone is hunting are they expected to case their rifle or shotgun if they go from a field onto a road?
Here in Texas (you are in the Texas section of the forum afterall...) There is no restriction on carrying a long gun.....
|
Phoenix David
Regular Member
|
Posted: Thu Oct 8th, 2009 02:48 am |
|
Could you use the NBA definition of traveling? that's know across every jurisdiction. 
|
Current time is 12:10 am | Page: 1 2   |
|
