H.B. No. 823




AN ACT

relating to the applicability of the offense of unlawful carrying 
of weapons to certain persons and to the consequence of certain 
presumptions in the prosecution of a criminal offense.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Section 46.15, Penal Code, is amended by adding 
Subsection (i) to read as follows:
	(i)  For purposes of Subsection (b)(3), 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.                             
	SECTION 2.  Section 2.05, Penal Code, is amended to read as 
follows:         
	Sec. 2.05.  PRESUMPTION.  (a)  Except as provided by 
Subsection (b), when [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.
	(b)  When this code or another penal law establishes a 
presumption in favor of the defendant 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, that:
			(A)  the presumption applies unless the state 
proves beyond a reasonable doubt that the facts giving rise to the 
presumption do not exist;
			(B)  if the state fails to prove beyond a 
reasonable doubt that the facts giving rise to the presumption do 
not exist, the jury must find that the presumed fact exists;
			(C)  even though the jury may find that the 
presumed fact does not exist, the state must prove beyond a 
reasonable doubt each of the elements of the offense charged; and
			(D)  if the jury has a reasonable doubt as to 
whether the presumed fact exists, the presumption applies and the 
jury must consider the presumed fact to exist.
	SECTION 3.  The changes in law made by this Act apply only to 
an offense committed on or after the effective date of this Act.  An 
offense committed before the effective date of this Act is covered 
by the law in effect at the time the offense was committed, and the 
former law is continued in effect for that purpose.  For purposes of 
this section, an offense was committed before the effective date of 
this Act if any element of the offense was committed before that 
date.
	SECTION 4.  This Act takes effect September 1, 2005.                           




______________________________              ______________________________
 
   President of the Senate                               Speaker of the House      

	I certify that H.B. No. 823 was passed by the House on April 
20, 2005, by a non-record vote; and that the House concurred in 
Senate amendments to H.B. No. 823 on May 27, 2005, by a non-record 
vote.

                                                  ______________________________
                                                     Chief Clerk of the House   

	
I certify that H.B. No. 823 was passed by the Senate, with 
amendments, on May 24, 2005, by the following vote:  Yeas 29, Nays 
2.

                                                  ______________________________
                                                      Secretary of the Senate   



APPROVED: __________________                                                
 
                Date                                                         




 
         __________________                                              
 
              Governor