I received a letter from the ACLU re the "Texas Police Accountability Project" asking for a copy of my "policy" regarding the new provisions of PC 46.02. I presume that this was a blanket mailing. I don't have anything in writing and intend to so reply. Any comments on this letter?
John Hutchison
CA Hansford County
Spearman

I received it and sent the ACLU the 3 pages of Powerpoint slides we used in local training. Those slides came from the TDCAA training that was done last summer and could have been attended by anyone who wanted to pay the low, low price set by TDCAA. Those same slides, and the explanation of their meaning, were published in newspapers when the media heard that TDCAA had an opinion on the new law. The source of the open records request has a blog at this link.

For an example of those articles, here is one from the Texas Lawyer:


HEADLINE: Have Gun, Will "Travel";
Firearm Advocates, Prosecutors Take Aim at New Law

BYLINE: Mary Alice Robbins

BODY:
The Texas Legislature's effort to prevent the arrest of law-abiding citizens who aren't licensed to carry concealed weapons but carry handguns in their cars while traveling may misfire.
H.B. 823, which took effect on Sept. 1, provides the first presumption in the Texas Penal Code that favors defendants. But whether the new law will prevent many arrests for unlawful handgun possession in vehicles remains to be seen.
Although 46.02a of the Penal Code makes it illegal for anyone without a concealed handgun license to carry a handgun or to have one accessible in a vehicle, Texans long have been allowed to carry weapons while traveling. However, courts have issued various interpretations of what the word "traveling" means.
"I think the old law is so vague as to be, in all fairness, unenforceable," says Tyler solo Sean Healy, who testified on behalf of the Texas State Rifle Association in support of H.B. 823 during legislative hearings on the bill earlier this year. "That hasn't stopped anybody from enforcing it," Healy adds.
Healy says he thinks the point of H.B. 823 was to clarify the law and make it much more difficult for somebody to run afoul of it. "If the prosecutors and peace officers will follow the intent of the bill, then it will go a long way toward solving the problem," he says.
State Rep. Terry Keel, R-Austin, the bill's author, says the new law is designed to end the debate on the street and in the courtroom about what constitutes traveling with a concealed weapon.
But Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association, says there is confusion about the effect the law has on a police officer who finds a weapon in a motorist's car. "No one knows how a defense presumption works on the street," Edmonds says.
Under the new law, there is a legal presumption that citizens are traveling if they are in a private vehicle, have a handgun that is not in plain sight, and are not engaged in unlawful activity, prohibited by law from possessing a firearm or members of a criminal street gang. Those criteria are set out in amendments to 46.15 of the Penal Code.
H.B. 823 also amended 2.05 of the Penal Code, which deals with presumptions. "It says the presumption that you are a traveler applies, unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist," says Keel, a partner in Keel & Nassour and a former Travis County sheriff and prosecutor.
Keel says the intent of the law is to provide police officers meaningful criteria to determine if a person found with a handgun in a vehicle is a traveler who does not have to be arrested for unlawfully carrying a weapon, a Class A misdemeanor punishable by incarceration of up to a year in county jail and a $4,000 fine. There is no longer a need for a police officer to apply a subjective definition of what constitutes traveling, when the person is cloaked with the evidentiary presumption that he or she is a traveler under this law, he says.
Presumption vs. Bar
However, people who are arrested for carrying handguns in their cars can expect to be prosecuted in Houston.
"Just because there's a presumption does not mean the presumption will not allow prosecution," says Harris County District Attorney Chuck Rosenthal.
Rosenthal says the new law changes the burden of proof on the presumption of traveling. Whether the presumption is proved is a matter for the courts, says Rosenthal, adding that he doesn't think police officers should make that decision. Rosenthal says an officer can check a database to see if a person is a convicted felon prohibited from possessing a weapon, but the officer won't necessarily find that the person is under a temporary restraining order that prohibits him from carrying a handgun.
Colorado County Attorney Ken Sparks says he wants law enforcement officers to make roadside decisions about whether motorists found with handguns in their vehicles are travelers. "If they qualify as a traveler, I don't want them prosecuted; I don't want them filed on," Sparks says.
But Sparks says the case law on this issue indicates someone has to be on an overnight trip to be a traveler. Someone who travels from one small town in Colorado County to another small town in that county to buy groceries is not a traveler, he says.
Sparks is critical of the new law. "If the Legislature wanted to create a defense, they should have done so," he says. "They didn't; they created a trial presumption. Any presumption can be removed with evidence at the time of trial."
Healy, the attorney who backed H.B. 823 on behalf of the pro-gun group, says he thinks the only unfortunate thing about the bill is the Legislature's failure to provide a definition of traveling.
Keel says the Legislature has shied away from defining traveling out of concern that a definition would limit what the word means. Instead, the Legislature passed a bill designed to prevent the arrest of anyone who meets the bill's criteria for a traveler, he says.
"Arresting someone simply because he has a handgun is flagrantly against the intent of the bill," Healy says.
But no one is betting that it won't happen.

This was, indeed, a mass mailing, and I think both Johns are responding correctly, in accordance with the law as it applies to their individual situations.

FYI, the generator of the open records request is a gentleman who regularly reads this forum. He is an occassional advocate/lobbyist at the Legislature, and he has his own criminal justice "blog"; here's the link:

http://gritsforbreakfast.blogspot.com/

FYI, here's an entry on that blog that might answer some of y'alls' questions:

http://gritsforbreakfast.blogspot.com/2006/01/for-tx-district-and-county-attorneys.html

Tuesday, January 17, 2006

For TX District and County Attorneys Who Got An ACLU Open Records Request

I don't usually do this, but it seems I need to take a moment on this blog to handle some official ACLU of Texas work stuff -- apparently a lot of county-level officials have been coming to Grits looking for information about an open records request I filed with them on behalf of ACLU of Texas. Just to keep from answering 300+ separate emails and phone messages, I thought I'd clarify the request here.

Here's the deal: Regular readers know I supported a new statute last year on behalf of ACLU at the Texas Lege protecting the right of Texans to carry a firearm in their vehicle. The new law creates a presumption that drivers are "traveling" (and therefore legally carrying a weapon in their vehicle) unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant was committing a Class B misdemeanor or worse, or (e) the defendant is a gang-banger.

The bill author, state Rep. Terry Keel (R-Austin) who is running unopposed, now, in the GOP primary for the Texas Court of Criminal Appeals, thinks the meaning was clear: "In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle," Keel said in a public statement when the bill became law in September.

But some DAs, most prominently Houston's Chuck Rosenthal, have said they won't change how they instruct officers to enforce that statute, telling police to rely on old case law rather than the new statutory language. That's why I sent out an open records request on behalf of ACLU to Texas' district and county attorneys asking for any advice, recommendations or other communications to law enforcement agencies in their jurisdiction about how to interpret the new statute. I know from media reports that at least some DAs, like Rosenthal, did issue such advice, and I'd like to quantify how many told local agencies in their jurisdictions to thwart Rep. Keel's stated legislative intent.

That said, Texas' open records law doesn't require DAs or county attorneys to create any new document if it doesn't already exist, only to provide ACLU (or any requestor) with copies of any advice, recommendation, information, etc., that's already been compiled. N.b. If no one in your agency prepared such information, then just write us a note letting us know you don't have any responsive documents in your possession. If you didn't write a policy but forwarded some news article, email, listserv note, Power Point presentation or other information for clarification of the law, then that would be the responsive document. Or, some DAs or CAs may have issued formal, written policies -- clearly that would be responsive, too.

This hopefully isn't a big deal, guys -- if you created or distributed such advice or information, send it along. But if you didn't, no big deal -- just let me know. Thanks a lot for your patience, and I'm sorry if the letter was unclear. A bunch of you seemed confused by it.

I responded to the open records request with a copy of the memo I sent out to my county's officers advising that they are not equipped on the roadside to determine if a gun-toting driver is not supposed to have a weapon. But from Shannon's update, was this an official ACLU request or someone with a personal interest in the matter using ACLU stationery?

Rick, they're basically one and the same.

But you can consider it "official." Thanks for responding to it in a timely manner.