Gun law stumping officials By Cindy V. Culp · CCulp@WacoTrib.com · 757-5744 Waco Tribune-Herald staff writer Fri 16 Sep 2005

In what seems like a bad punch line, a new law intended to clarify when Texans can legally have handguns in their vehicles has further confused the issue. Across Texas and in McLennan County, law enforcement agencies and prosecutors are interpreting the law in different ways. At issue is a section of the penal code that dictates when people can have handguns in their vehicles without a concealed handgun license. For years, Texans have had the right to carry handguns in their vehicles as long as they are traveling. But since neither the Legislature or the courts defined what “traveling” was, different jurisdictions enforced the law in different ways. Some police agencies basically accepted all trips made in a private vehicle, even if it was just to the store and back. Others required people to be traveling from city to city, across county lines or even to another state. To stop that uneven application of the law, Rep. Terry Keel, R-Austin, authored House Bill 823 this spring. It says people are presumed to be traveling as long as they are in a private vehicle, are not engaging in criminal activity other than a minor traffic violation, are not a member of a criminal street gang and are not prohibited by any other law from possessing a firearm. Keel said he chose those terms because they are objective measures police can quickly check in the field. He said the way the law is worded gives a legal presumption in favor of citizens. That means as long as someone meets that criteria, he or she should be allowed to go on his way and not fear arrest. The new law took effect Sep 1. “I don't think there is any ambiguity at all,” said Keel, who has served as both the sheriff and an assistant district attorney in Travis County. But some of Keel's colleagues in law enforcement disagree. “Regardless of what the Legislature intended, what they wrote on paper is unclear,” said Shannon Edmonds, a staff attorney for the Texas District and County Attorneys Association. “That happens a lot.” The problem, Edmonds said, is that the state cannot say something is a crime and then prohibit police from arresting people for it. What it can do, however, and what he believes the new law does, is create a defense to prosecution. To illustrate the difference between the two concepts, Edmonds gave the example of a person fatally shooting someone. Although shooting someone in self-defense is legal, that doesn't mean the shooter won't be arrested at the scene of the crime for murder. In the same way, although traveling may be legal justification for having a gun in a vehicle, that does not mean people are exempt from arrest for unlawfully carrying a weapon, Edmonds said. Put more commonly, people might beat the rap, but they won't beat the ride. “A defense is a legal concept for the court,” Edmonds said. “There is no such thing as a defense from arrest. There's just a defense from prosecution. This issue is going to have to be hammered out in the courts.” Realistically, though, it will be a year or longer before a case concerning the new law will make its way into the appellate system, Edmonds said. With the next legislative session less than two years away, lawmakers will likely take new action before the issue is settled in the legal system, he said. “(The bill) was a compromise solution to a difficult problem and probably is not the final word on this from the Legislature because the results won't be satisfying to anyone,” Edmonds said. In the meantime, some police agencies say they are left in limbo. In Waco, for example, city attorney Art Pertile said his interpretation is similar to the Texas District and County Attorneys Association's. The “presumed to be traveling” language refers to a part of the penal code which says prosecutors must rebut presumptions at trial, Pertile said. The fact that it references prosecutors and a trial signals an arrest has bee made, he said. Thus, he thinks the law is a defense rather than an exemption, he said. Over at the Waco Police Department, officers aren't quite sure what to think, said spokesman Steve Anderson. On one hand, the law is fairly clear that people should not be arrested if they meet the “traveling” terms, he said. On the other hand, the law also seems to indicate an officer can still arrest someone if he can articulate why he thinks a person is not truly traveling, Anderson said. With that leeway, each case is up to the officer's discretion, he said. “It depends on a lot of things,” Anderson said. “What time of night is it? What time of day is it? What are the circumstances? What stories are they telling you? Do they match if there is more than one person in the car? Do you know something to be a lie? ... I hate to say it this way, but sometimes it comes down to that gut punch that this is not a good thing.” For now, though, the department is waiting on clarification from the district attorney's office, Anderson said. Until it gets that, officers may be less likely to arrest someone and instead just confiscate the gun. If prosecution is deemed necessary, a warrant could later be issued for that person's arrest, he said. McLenann County District Attorney John Segrest said he is not ready to comment on the law because he has not had time to research it. Some local agencies don't feel clarification is necessary. In Robinson, officers won't arrest people who meet the specifications laid out in the new law, said Lt. Tracy O'Connor. In the past, they made such arrests on occasion, he said. “I think it's pretty self-explanatory,” O'Connor said of the change. Bellmead Police Chief Robert Harold also said he thinks the new law is fairly clear. His officers won't arrest people who have handguns concealed in their vehicles, unless they have reason to believe they are engaged in crime or about to be, he said. At the state level, agencies seem to be divided among urban and rural lines, Edmonds said. Rural jurisdictions are more likely to view the new law as an exemption from arrest, rather than defense from prosecution, he said.