Replies

Nobody is in "defiance" of the change in the law. The Texas Legislature could have created an exception to the unlawfully carrying a handgun law. That would have exempted the conduct(carrying a handgun in your car when you are sober, not a gang member, and not violating any other law except for minor traffic violations) from the unlawfully carrying law. With an exemption any peace officer wanting to properly arrest someone for unlawfully carring a handgun would have probable cause to believe, and show that to show the magistrate he took the arrested person to, that the arrested person's conduct fell outside the exemption to the unlawfully carrying law.

Instead the Texas Legislature, created a presumption that a person engaging in the conduct described above is travelling, and hence exempt from the unlawfully carrying law. A presumtion is an rule of evidencedoes not come into play until the case gets to court. A peace officer can arrest and a magistrate can detain someone without regard to the presumption.

If the Texas Legislature wants to creat an exemption thay will have a chance to do so next month when the Special Session for school finance starts.

I got an open records request abou this a few weeks ago from the ACLU. I was glad to see them take a break from their usual routine of trying to keep terrorists and child molesters on the street.

From the Texas penal code:

§ 2.05. Presumption

When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.