05 Apr 2007

Don’t Like the Law? Just Ignore it, If You Are a Public Official in Texas

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Urban prosecutors and police departments ignoring state law in Texas has led to the unlikely alliance of the NRA and ACLU, reports the New York Times.

Like many other states, Texas bans the carrying of concealed handguns without a license. Obtaining a license requires a background check and a gun-safety course. By long-established law, however, Texans can cite “traveling” as a defense to possession of an unlicensed handgun. But while traveling was widely understood to denote a journey of some distance, it was never defined. (Travel on planes and other interstate conveyances banning weapons falls under federal jurisdiction.)

In 1997, the State Legislature tried to clarify the law by removing unlicensed carrying of a weapon as an offense while traveling. But it left unresolved whether traveling required making an overnight stop, crossing county lines or other conditions.

In 2005, lawmakers sought to remove the ambiguity by declaring that anyone in a private vehicle who was not engaged in criminal activity or otherwise barred from possessing a firearm was “presumed to be traveling,” and thus exempt from restrictions on concealed handguns.

Terry Keel, a former member of the Texas House of Representatives who sponsored the bill, explained its intent in a statement entered into the record: “In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle.”

But the measure hardly ended the controversy.

Almost as soon as it became law in September 2005, the Texas District and County Attorneys Association signaled its displeasure by advising members that the act did not rule out arrests of otherwise law-abiding drivers carrying weapons. The association said it was up to the courts to determine whether a person was, in fact, traveling. “Therefore,” it declared, “officers are still acting within their lawful discretion if they arrest a person who might qualify for the traveling defense or the new traveling presumption.”

Or, as Charles A. Rosenthal Jr., the district attorney of Harris County, which includes Houston, argued, “The presumption of innocence does not make the person innocent.”

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