By J. Lyn Carl, GalleryWatch.com
Austin, TX –
"Have gun - will travel."
It used to apply to a television western starring Richard Boone as "Paladin," a "traveling" professional gunfighter.
Now the phrase has taken on new meaning, thanks to legislation from the 79th Regular Session that will become law on Sept. 1. Rep. Terry Keel's (R-Austin) HB 823 is intended to clarify the right of an individual to carry a concealed handgun while "traveling."
While most agree that Texans have the right to carry a concealed handgun for their personal protection while traveling in a motor vehicle, courts historically have had different interpretations of the definition of "traveling."
In Keel's HB 832, language was added that defines "traveling" in relation to the carrying of a concealed handgun in a motor vehicle. The language provides that a person is presumed to be "traveling" if they are: (1) in a private motor vehicle; (2) not engaged in criminal activity other than a misdemeanor traffic violation; (3) not prohibited by law from possessing a firearm; (4) not a member of a criminal street gang, and (5) not carrying a handgun in plain view.
With the law about to go into effect, Keel today attempted to clarify the intent of his bill.
Keel said law-abiding individuals should not fear arrest if they are carrying a concealed handgun in their motor vehicles while they are traveling. "There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes 'traveling' where the citizen is cloaked with the presumption per the terms of the new statute," said Keel. "Under those circumstances the citizen should be allowed to proceed on their way."
The Austin lawmaker said he is confident the new law will "assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling - a right to which they are already entitled."
Legislation in 1997 changed state law to clarify that persons "traveling" were not subject to certain provisions of law relating to unauthorized carrying of a concealed weapon. Keel noted that while that legislation was "well-intentioned," it did not protect honest citizens from potential arrest "because the term 'traveling' was still left to individual police or judicial officials to define on a case-by-case basis." Thus, he pointed out, persons who legally carried concealed handguns in their vehicles "continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling."
Instead of setting parameters such as travel between counties, or making an overnight stay as part of definitions of "traveling," Keel said his bill instead "focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers."
Keel pointed out other important points relative to HB 823:
- HB 823 does not give "everyone the right to carry a gun in a car." State and federal laws must be considered in conjunction with the new statute's terms, particularly regarding persons who are "not otherwise prohibited by law from possessing a firearm." For example, cites Keel, persons subject to a protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses such as family violence.
- The presumption does not apply to persons associated with a criminal street gang, even if they have no convictions.
- The presumption does not apply to persons who are engaged in any criminal conduct, such as persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense other than a misdemeanor traffic violation.
- The presumption also does not apply where the gun is openly displayed.
- Regardless of what the new law says, at least one Texas prosecutor says individuals in his county who carry handguns in their vehicles without a handgun license will continue to be prosecuted.
Harris County District Attorney Chuck Rosenthal has indicated that he will still prosecute individuals who carry a concealed handgun in their vehicles, in spite of the provisions of the new law. He said the new legal defense still could be challenged by prosecutors. He said the new legislation still does not define what "traveling" is.