mreed911 wrote:We've discussed this particular nuance here (ad nauseam) re: exception vs. defense to prosecution. The short version is that an exception is something a prosecutor must negate in order to be able to charge a crime where a defense is something the defense must raise and prove and a prosecutor doesn't have to consider when charging someone (in practice, most do, because they don't bring cases with clear defenses, etc.).
The Penal Code has 46.15 which says "Sections 46.02 and 46.03 do not apply to" which many people have claimed are exceptions. In this specific case (above), the Chapter Title of the law the person was prosecuted under was "Exceptions." In EVERY case, the Court of Criminal Appeals has ruled that since the legislature passed PC 2.02/2.03 with the specific requirement for the specific "it is an exception to..." language, any other statute not using that EXACT language is, in fact, a defense or list of defenses.
Let that sink in. A Chapter titled "Exceptions" does not actually contain exceptions because the legislature required specific wording for Exceptions, which that chapter, titled Exceptions, never uses. The same applies for "does not apply" - it doesn't mean it doesn't apply at the time of deciding whether to charge someone (BEFORE the fact, meaning you're subject to arrest, arrest record, arraignment, bail, etc.) - it matters if the defense can prove that it doesn't apply AFTER the fact.
The more practical application (and worrisome) of this w.r.t. 46.15 is for retired peace officers. 46.15 says 46.02/46.03 does not apply to retired peace officers (carrying ID, etc.). That means a retired peace officer could be arrested, have an arrest record, be arraigned, forced to post bail and go to trial, then prove up at his expense that he is, in fact, a retired police officer (which, because it's a defense, the prosecution would have to try and negate) to be found not guilty. If, however, the language was fixed, a rogue officer would have to negate the exception to have probable cause to arrest and a rogue prosecutor would have to, before charging someone, validate and prove up the negation to that exception in order to even bring charges.
It changes the dynamic, but more importantly, it corrects the language. A Chapter titled "Exceptions" would be treated as exceptions and "does not apply" (though that specific language STILL needs to be fixed separately) would be able to be construed as an exception, not a defense.
And this has been the case more or less for 22 years since CHL was added to 46.15...
True exceptions...which use the correct statutory language, have to be proactively proven NOT to apply by the prosecution in the charging instrument. But that might not happen without the defense bringing it up (presumably at the arraignment) or if it's somehow missed, then at trial. A Defense (or Exception treated by this case law as a Defense), must be raised by the defense
at trial before the prosecution is required to refute it. A decent attorney would raise an exception pre-trail. However if a true exception was overlooked by defense and not positively refuted by the prosecution, then the case for overturning the verdict on appeal would be very strong.
On the other hand, a Defense not raised at trial, would likely not be enough to get a verdict reversed.
As far as being arrested for an offense...Defense, Exception, or "Didn't Do It" are all evaluated by the Prosecution before going to trial. It's highly unlikely that if you have a clear Defense that prosecution will proceed to trial, but if they do you have to raise it AT TRIAL (duh...).
So the question is...do you want to risk the proverbial "ride" for a felony when carrying under authority of LTC in your local (beer selling) Quikie Mart???
