WARNING: THERE IS MORE “GRAY AREA” OR AMBIGUITY IN WHEN AND WHERE A PERSON CAN LAWFULLY CARRY A WEAPON. SEEK DETAILED LEGAL ADVICE SPECIFIC TO YOUR FACT SITUATION. This information is an overview of the basics of the weapons laws in Texas, and certainly does not cover every detail. ALSO NOTE FEDERAL LAW HEAVILY REGULATES FIREARMS, AND THERE ARE ***SEVERE PENALTIES*** FOR VIOLATIONS OF FEDERAL LAW! The following is provided for informational purposes only and is not legal advice. Any questions regarding weapons should be directed to a licensed Texas attorney provided with the defendant's specific fact situation.

DPS PUBLICATION: Concealed Handgun statutes & related weapons laws can be found at this webpage.

The Unlawful Carrying of a Weapon (“UCW”) statutes have been amended as of Sept. 1, 2005. I have heard many people say that the new law allows people to carry handguns in their car without a Concealed Handgun License. I DO NOT TOTALLY AGREE WITH THIS STATEMENT.

There are defenses to carrying a weapon that include, but are not limited to, traveler's defense (30 miles+ journey, crossing county lines, and/or overnight trip are factors established by caselaw) and while directly en route to/from a legitimate fishing/hunting/sporting activity (in which case I recommend locked or boxed guns separate from empty magazines and ammo).

Also, by caselaw, one can carry a handgun to and from home to one’s place of business as long as not habitually carried and for legitimate purpose, like making a deposit at the bank or carrying valuables; also buying/selling a gun, and repairing a gun, etc.

RELY ON THESE DEFENSES AT YOUR PERIL. A wise attorney once opined, “You may be able to beat the rap, but you can’t beat the ride.”

Let’s look at the relevant sections of the law:

The UCW statute (penal code section 46.10) says that it does not apply to some common scenarios (amongst other things):

· is on the person's own premises or premises under the person's control unless the person is [a licensed security guard]
· is traveling;
· is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is directly en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;
· is carrying a concealed handgun and [a valid CHL per the CHL rules]

The new law gun owners are talking about is:

(i) For purposes of Subsection (b)(3)[travelling], a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

In my opinion, all this new law does is create a presumption of traveling. This presumption of traveling can be overcome by the State in a trial. The new law really doesn’t change much in that you can still be arrested, bond out, hire a lawyer, and take your case to trial to prove the traveller's defense (inapplicability), except now that it's to watch the State attempt to disprove the presumption of a valid defense by offering proof the person charged was not traveling based on the definition of traveling in state case law. The State can show, for example, the person arrested for UCW was going to work, the store, taking a Sunday drive, etc., so consequently, they did not meet the test of traveling as defined by case law. The easiest way the State can overcome or rebut the presumption is with information provided to the arresting officer, such as statements by the Defendant. If you are stopped and are not a CHL holder, I would not disclose the weapon. If asked I would state "No sir, I have no illegal drugs or weapons in the car." You have no duty to disclose as a non-CHL holder, whereas as a CHL holder you must show your CHL and inform the officer. Keep in mind the defenses applicable to you and don't let the officer negate them during any questioning. "I'd prefer not to answer any questions unrelated to this traffic stop, Deputy." Or perhaps "I'm directly on my way home from the range/ranch" or something to that effect would be better than "Yes I am carrying a concealed weapon in my car, I am not engaged in criminal activity other than a minor traffic violation, I am not a gang banger, I am otherwise eligible to possess the weapon, and I am driving to the corner store to get some Krispy Kreme donuts." Remember "loose lips sink ships!" You have a right to remain silent - exercise it. And keep in mind False Report to a Peace Officer is a crime, so it’s better to remain silent and rely on the presumption than lie about it and get caught. If the State has no information, it cannot rebut the presumption.

In my opinion, it’s better to get the CHL and not have to argue about whether a defense applies in court. I recommend that if you really need to carry one in the pipe in your vehicle, get a CHL or carry a legal rifle, which is generally permitted as long as you are not convicted of or on deferred adjudication for a felony, convicted of family violence, subject to a protective order, otherwise prohibited by state or federal law from possessing a firearm, or in a place where weapons are prohibited.



The Law Office of Brian Baker
Phone (512) 392 - 2300
San Marcos Texas