In
what seems like a bad punch line, a new law intended to clarify when
Texans can legally have handguns in their vehicles has further confused
the issue.
Across Texas and
in McLennan County, law enforcement agencies and prosecutors are interpreting
the law in different ways. At issue is a section of the penal code
that dictates when people can have handguns in their vehicles without
a concealed handgun license.
For years, Texans have had the right to carry handguns in their vehicles
as long as they are traveling. But since neither the Legislature or
the courts defined what “traveling” was, different jurisdictions enforced
the law in different ways.
Some
police agencies basically accepted all trips made in a private vehicle,
even if it was just to the store and back. Others required people
to be traveling from city to city, across county lines or even to
another state.
To stop that
uneven application of the law, Rep. Terry Keel, R-Austin, authored
House Bill 823 this spring. It says people are presumed to be traveling
as long as they are in a private vehicle, are not engaging in criminal
activity other than a minor traffic violation, are not a member of
a criminal street gang and are not prohibited by any other law from
possessing a firearm.
Keel said
he chose those terms because they are objective measures police can
quickly check in the field. He said the way the law is worded gives
a legal presumption in favor of citizens. That means as long as someone
meets that criteria, he or she should be allowed to go on his way
and not fear arrest.
The new law took effect Sept. 1.
“I don't think there is any ambiguity at all,”
said Keel, who has served as both the sheriff and an assistant district
attorney in Travis County.
But
some of Keel's colleagues in law enforcement disagree.
“Regardless
of what the Legislature intended, what they wrote on paper is unclear,”
said Shannon Edmonds, a staff attorney for the Texas District and
County Attorneys Association. “That happens a lot.”
The problem, Edmonds said, is that the state cannot
say something is a crime and then prohibit police from arresting people
for it. What it can do, however ? and what he believes the new law
does ? is create a defense to prosecution.
To illustrate the difference
between the two concepts, Edmonds gave the example of a person fatally
shooting someone. Although shooting someone in self-defense is legal,
that doesn't mean the shooter won't be arrested at the scene of the
crime for murder.
In the same
way, although traveling may be legal justification for having a gun
in a vehicle, that does not mean people are exempt from arrest for
unlawfully carrying a weapon, Edmonds said. Put more commonly, people
might beat the rap, but they won't beat the ride.
“A defense is a legal concept for the court,” Edmonds
said. “There is no such thing as a defense from arrest. There's just
a defense from prosecution. This issue is going to have to be hammered
out in the courts.”
Realistically, though, it will be a year or longer
before a case concerning the new law will make its way into the appellate
system, Edmonds said. With the next legislative session less than
two years away, lawmakers will likely take new action before the issue
is settled in the legal system, he said.
“(The bill) was a compromise solution to a difficult problem and probably
is not the final word on this from the Legislature because the results
won't be satisfying to anyone,” Edmonds said.
In the meantime, some police agencies say they are left in limbo.
In Waco, for example, city attorney Art Pertile said his interpretation
is similar to the Texas District and County Attorneys Association's.
The “presumed to be traveling” language refers
to a part of the penal code which says prosecutors must rebut presumptions
at trial, Pertile said. The fact that it references prosecutors and
a trial signals an arrest has bee made, he said. Thus, he thinks the
law is a defense rather than an exemption, he said.
Over at the Waco Police Department, officers aren't
quite sure what to think, said spokesman Steve Anderson. On one hand,
the law is fairly clear that people should not be arrested if they
meet the “traveling” terms, he said.
On the other hand, the law also
seems to indicate an officer can still arrest someone if he can articulate
why he thinks a person is not truly traveling, Anderson said. With
that leeway, each case is up to the officer's discretion, he said.
“It depends on a lot of things,” Anderson said.
“What time of night is it? What time of day is it? What are the circumstances?
What stories are they telling you? Do they match if there is more
than one person in the car? Do you know something to be a lie? ...
I hate to say it this way, but sometimes it comes down to that gut
punch that this is not a good thing.”
For
now, though, the department is waiting on clarification from the district
attorney's office, Anderson said. Until it gets that, officers may
be less likely to arrest someone and instead just confiscate the gun.
If prosecution is deemed necessary, a warrant could later be issued
for that person's arrest, he said.
McLenann County District Attorney John Segrest said he is not ready
to comment on the law because he has not had time to research it.
Some local agencies don't feel clarification is
necessary. In Robinson, officers won't arrest people who meet the
specifications laid out in the new law, said Lt. Tracy O'Connor. In
the past, they made such arrests on occasion, he said.
“I think it's
pretty self-explanatory,” O'Connor said of the change.
Bellmead Police Chief Robert Harold also said he
thinks the new law is fairly clear. His officers won't arrest people
who have handguns concealed in their vehicles, unless they have reason
to believe they are engaged in crime or about to be, he said.
At the state level, agencies seem to be divided
among urban and rural lines, Edmonds said. Rural jurisdictions are
more likely to view the new law as an exemption from arrest, rather
than defense from prosecution, he said.
cculp@wacotrib.com
757-5744
