Texas Gun Law FAQ

Q:

>Do you know the law concerning carrying a gun in your car?
>Do you have to be traveling? What constitutes traveling?
>If yer pulled over, do you have to tell the cop?
>

A:

    For long guns, there is no restriction under Texas state law.  For handguns, unfortunately, there are no quick and easy bright-line answer to your questions.  That is because the law as it exists right now, is pretty messed up.  I will try to give you my professional summary as a lawyer.

    Essentially, the law states that it is a crime to carry a handgun "on or about your person."  This law began in the 1870's as a Jim Crow statute intended only to be applied to black people.  Over the intervening century, it has been interpreted, in my opinion, too broadly by the courts to include the passenger compartment of a car.  Generally, your trunk is a safe place to carry, although I have seen one case here in Austin when the local cops ran a guy in for a gun in his trunk.  Not because it was a good case, but merely because they wanted to harass him.  Always remember the old saying, "you may beat the rap, but you won't beat the ride."
    But the law goes further and makes an exception for persons who are "traveling."  Traveling, as it has been interpreted by the courts means, basically, going away from one's domicile, or residence, for an extended trip of some kind.  There are no exact definitions or parameters.  This is what is wrong with the law; it is too vague and subject to abuse by police and prosecutors.
     Even if one is truly traveling, you can still go to jail.  Say for example, you have a car loaded up with all your belongings and are driving from Austin to Dallas on I35.  A cop pulls you over in Temple and he either searches and finds the gun, or you tell him you have one, (which you don't have to do; nor do you have to consent to a search).  But for whatever reason, he finds out you have a gun.
     How does he know you are truly "traveling?"  Often times, he will be an ass and say, "It's not for me to decide.  Tell your story to the judge."  And he runs you in anyway; knowing full well that you will have to spend a couple of grand to get out of the mess, because you were, in fact, traveling.  It's not a good situation for gun owners; we are always facing legal risks when we have guns in our possession.  We need to change the law.  But  it is the law as of this writing (1999).
    In a recent case before the  Court of Criminal Appeals of Texas, a narrow majority (5 to 4) upheld this current state of affairs.  The four judges who dissented wanted to fix the problem by giving the word "traveling" its commonly understood, dictionary meaning; which would mean "traveling" anywhere, anytime, even just across town.  We need to elect some good judges to that court and get another case up on appeal so that this area of the law can be improved.  Either that, or get more strong pro-gun legislators elected to get the law amended.

Judge Charlie Baird's dissent opinion in the case is on our website.  It contains a very good summary of Texas case law on carrying handguns.

Q:

>I am now confused again. About a month ago, I called the DPS' CCW law
>offices on two different days and spoke to two different Lawyers to get
>a clarification on the ruling by the Supreme Court that the Federal "no
>guns" within a certain distance from a school was pronounced invalid.

>I was told it was okay if I carried my weapon, (concealed, of course)
>onto the school grounds for the purpose of dropping my child off/picking
>up from school; or leaving a firearm in a vehicle in the school parking
>lot while attending a function as long as the function was not taking
>place in the parking lot itself.

>I was told that a 300' "gun free zone" existed only as a punishment to
>be added if while I were armed, I were to commit a crime, i.e., brawling
>or drunkenness, and was committing the offense within 300 feet of the
>school premises per the lawful definition of "premises."

>I thought fine, I can attend a football game and can leave a gun
>concealed and secured in my vehicle, or drop off my child on the way to
>work without any problem.

>However, now I AM CONCERNED AGAIN, as I read on your web site that in
>1996, the Republican Congress re-instated the (previously adjudicated as
>unconstitutional) Federal Mandate of "no-gun" under any circumstances within a
>certain distance from a school.

>Obviously, I do not wish to go to Jail or lose my CCW privilege through
>ignorance. Would you please see if you can get a detailed
>clarification on what is lawful and what is not regarding carrying a
>firearm while entering a school parking lot, or sporting event stadium
>parking lot.

A:

As with so much of our body of laws, things are not very clear and can be quite confusing. Many times in my law practice, I am forced to make an educated guess as to what the law currently is, and advise my clients as best I can while trying to navigate them through the mine fields of American Laws. Why do you think we call the decisions of appellate courts "opinions"? Their opinion is not necessarily right, or better than mine or yours. It's just their opinion. Look at all the cases that get reversed; each and every one means that some judge was wrong about the law.

Here is the state of things as of now:

The Federal Gun Free School Zones Act was re-enacted a few years ago. This law makes it illegal to possess any gun with in 1000 feet of any piece of property that is used by a school. It is vague. Does it cover office space rented out in an office building by the administration of your local school district? What if they rent out a room in a nondescript building for monthly meetings of a school-sponsored activity group? What about home schools? It's all very messy and unclear and there are no easy answers. Until someone gets prosecuted and fights it will we get any judicial "opinions" on what is legal or not under this law. The stated exceptions are for guns possessed in your home, CHL's, and guns unloaded and locked in a container.

One must also realize that federal laws are not often enforced. Many local police often will not alert federal authorities to violations of federal laws. Even when they do, the US Attorney's office, often does not trouble itself with prosecuting them. They consider themselves too important and busy to concern themselves with "minor" cases. I am certain this is why the DPS told you what they did. They know our state penal code well, but federal laws, not really. Remember, reliance upon police agencies (or even their attorneys') "opinions" on the law is NO defense if a court disagrees with that opinion. We are all presumed to "know the law" and ignorance thereof is no excuse. This doctrine worked fine in the days when laws were few and simple. Not so today. Not even lawyers and courts can agree on what the law is.

As regards our state's 300 foot gun free school zone law, it applies only to handguns, and it excepts CHL's. So, possession of a handgun in your car as you drive to the gun range on a Saturday past an unmarked building where after-school activities are conducted on Wednesdays may still land you in jail and punishable for a felony. Not likely, but possible.

Under the law as it is now, "premises" is defined to exclude driveways and parking lots. So a CHL can carry in those places. However, be advised that there is an attempt this session in HB 860 to redefine premises to once again make those places off limits to CHL's.

We need to get these ridiculously complex and draconian laws off the books. They do no good, as criminals will not obey them. All they do is lay traps for the unwary. I hope this helps.

Copyright 1999 by Paul C. Velte IV, Attorney at Law
Permission is granted for use with accreditation to the author.


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