Am I missing something? Under PC 46.15(b)(2), UCW (�46.02) does not apply to a person who is traveling. So if traveling on my motorcycle, I can strap my .45 to my side in plain view without violating the penal code. So can any other biker (1%er) who is not otherwise prevented from possessing a handgun.

I may be mistaken but I thought there used to be a definition for traveling as it applied in section 46.15 back when traveling was a defense to UCW. When 46.02 was amended in 2007 traveling became incorporated into the statute as one of the elements, yet the defense was still listed in 46.15 for some reason.

Regardless, the old traveling defense and the current element of "not traveling" require that the weapon not be in plain view. 46.02(a-1)(1).

"require that the weapon not be in plain view. 46.02(a-1)(1)."

But 46.02 does not apply if you are traveling

Look at case law on what constitutes "traveling." It is not simply being on or in a vehicle and the state is not required to negate the traveling defense. And if all else fails there's DOC 42.01(8) displays a firearm in a public place in a manner calculated to alarm.

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But 46.02 does not apply if you are traveling .

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But "traveling" requires that the weapon not
be in plain view.

Under the old law traveling was a presumption if the issue was sufficiently raised by the facts. The State had to then disprove this presumption by showing that the firearm was in plain view, the person was a member of a street gang, the person was prohibited by law from possessing the firearm, OR that they were engaging in an offenses other than a Class C regulating traffic.

In 2007 the statute was amended to simply take this presumption and methods of rebutting it and make it a part of the statute itself. At that point, in my opinion, the traveling defense listed in 46.15 became redundant and should have just been removed.

[This message was edited by Adam Poole on 05-12-10 at .]

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Originally posted by Adam Poole:
I may be mistaken but I thought there used to be a definition for traveling as it applied in section 46.15 back when traveling was a defense to UCW. When 46.02 was amended in 2007 traveling became incorporated into the statute as one of the elements, yet the defense was still listed in 46.15 for some reason.

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Traveling has long been on the books as a defense (for something like 100+ years), but it never been statutorily defined. From 2005-2007 there was a presumption of traveling, but the presumption was not a definition--in fact, it had almost no relation to the traditional concept of "traveling" whatsoever, which is part of the reason why it was repealed and replaced with the current law. Regardless of whether you agree with the scope of the new elements of the offense, at least it is easier to understand.

As previously mentioned, TS, I recommend reading the caselaw to get a better understanding of what does and does not qualify as traveling if the current elements of the offense do not resolve your initial question.

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Originally posted by TS:
Am I missing something? Under PC 46.15(b)(2), UCW (�46.02) does not apply to a person who is traveling. So if traveling on my motorcycle, I can strap my .45 to my side in plain view without violating the penal code. So can any other biker (1%er) who is not otherwise prevented from possessing a handgun.

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You are correct. 46.02 does not apply to a traveler, so the "plain view" prohibition in 46.02 is inapplicable as well. 46.15 does not require that the handgun be concealed.

While it may be possible to carry an unconcealed handgun while traveling on a motorcycle, consider the collateral consequences. A. How many officers will the biker pass without getting stopped. B. How many of those officers are going to be willing to debate the legalities on the side of the road. C. When the biker arrives at the intended destination, the only way the biker can continue to carry the handgun is with a concealed handgun license unless the trip is from home/business to home/business. If the end of the trip is in a crowded location where many people can see the biker store the weapon in a compartment on the bike, how long will it take to get stolen. Conclusion is that the wise choice is to carry already concealed even if on a motorcycle.

I would expect the consequences in most jurisdictions to start with an arrest for UCW. I would also hope that most officers understand the need to conduct a through investigation and interviews into any potential defense, including traveling. Once the defendant has been schooled by their attorney in what does and does not constitute traveling, they are probably not going to admit that they were just cruising or that they habitually carry the weapon between home and work.

"I recommend reading the caselaw to get a better understanding of what does and does not qualify as traveling if the current elements of the offense do not resolve your initial question"

Shannon I have read the caselaw as to traveling, and the current elements of the UCW offense make a lot sense, however such elements do not apply if you are traveling. �6.15(b)(2) should be repealed because it negates all of �46.02 for those traveling.

I am no appellate expert, but since the amendments to Section 46.02 regarding carrying a handgun on or about a person while in a motor vehicle owned or controlled by the person were passed much later than the "traveling" provision in Section 46.15, wouldn't 46.02 control? I believe the bill analysis for the bill amending Section 46.02 indicated that the Legislature intended to codify the traveling exception with in the UCW statute. The express language of the statute seems to trump earlier case law that required that to claim the traveling exception, the actor had to actually be traveling away from the person's home accross county lines, etc. Isn't is possible that the Legislature simply forgot to repeal the traveling language from 46.15? It's happened before.

But that just my honest interpretation. I would like to know how you are advising your officers. Our officers have always made a lot of UCW arrests, and it can be confusing for them. Currently, we are just appying the law as written in 46.02. If the person meets the criteria, no arrest.

Janette A

[This message was edited by J Ansolabehere on 05-14-10 at .]

Texas is a progressive and modern state, but there are still a few modes of transportation that do not involve a motor-vehicle that the traveler owns. I personally have traveled via horseback, canoe, kayak, and more than a few pairs of vibram soled boots. Generally armed and with the knowledge that I had the protection of the "traveling" defense.

As far as instructing officers; I tell them "If you observe each of the elements under 46.02, including the lack of in a motor-vehicle or the lack of concealment, you have the authority to make an arrest. But if in the course of the investigation, you are satisfied that the person carrying the weapon is entitled to a defense, thank them for their courtesy and sent them on their way."

I like to point out to officers that being a peace officer is a defense under 46.15 and ask if they saw a uniformed police officer would they arrest them? If they saw a person with a handgun claiming to be a police officer but having lost their badge and ID, would you take their word, investigate further, or arrest them? They should treat any other defense in the same manner, but to do so they need to know the elements of the defenses.

For those who think the new version of 46.02 makes 46.15's traveling defense obsolete:

What about passengers who don't "own" or "control" the vehicle in or on which they are traveling?

Discuss...

Good point Shannon, but the traveling defense still negates all of 46.02 and the requirement to keep it concealed. Do you think the legislature intended that result to protect passengers?

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Originally posted by TS:
Do you think the legislature intended that result to protect passengers?

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I've been around the Capitol long enough to assure you that legislators had no "intent" in passing this law other than to please those who were advocating for it.

As I've said many times, the Legislature wants "good people" to be able to carry handguns and "bad people" not to be able to carry handguns, and that's about as sophisticated as it gets. The details are left up to the courts to work out.

Good luck with that.

(And yes, my serious answer is that the traveling defense "swallows" the new elements of 46.02(a) and (a-1), so a person who is traveling can have the handgun in plain view.)

I second this suggestion!

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Originally posted by John Greenwood:

As far as instructing officers; I tell them "If you observe each of the elements under 46.02, including the lack of in a motor-vehicle or the lack of concealment, you have the authority to make an arrest. But if in the course of the investigation, you are satisfied that the person carrying the weapon is entitled to a defense, thank them for their courtesy and sent them on their way."

I like to point out to officers that being a peace officer is a defense under 46.15 and ask if they saw a uniformed police officer would they arrest them? If they saw a person with a handgun claiming to be a police officer but having lost their badge and ID, would you take their word, investigate further, or arrest them? They should treat any other defense in the same manner, but to do so they need to know the elements of the defenses.

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