TexasCHLforum.com

RoyGBiv wrote:All you Hams should join your local RACES/ARES.
They gave me a very nice FEMA "Emergency Communications" ID card and I enjoy doing the volunteer work. Met some good folks.

"Radio Amateur Civil Emergency Service"
http://www.usraces.org/

"Amateur Radio Emergency Service"
http://www.arrl.org/ares

Or if you have a local CERT, that's another good organization to consider. Also administered under FEMA.

Community Emergency Response Team
https://www.ready.gov/community-emergency-response-team

Fort Worth RACES training is a 4-hour class and background check, in addition to being a licensed radio operator. They have a monthly on-air training/check-in that's usually a half hour or so. Other locations will have different requirements, but nothing too onerous.

CERT training is more extensive. Typically 30-40 hours of classroom, plus monthly meetings to stay active. Again, different localities will have different requirements, but the curriculum is laid out pretty clearly by FEMA. Check your local area...

This another great way to become an Emergency Services Volunteer. I really have to get my Technician license.... I've been saying it for 35 years, but now another reason to get into Ham Radio.

ELB wrote:Now, having said all that in the previous post, I think it's still a pretty low bar to clear the VESP hurdle. You could check with your county's Emergency Services Coordinator (or whatever the equivalent is) and see what kinds of things they need help with. I don't think you would necessarily have to be a firefighter or EMT. For example, I know there are volunteer weather watchers/reporters who provide info to...somebody...during storms and tornado watches and such. They may need volunteers to staff a temporary shelter at the school gym or extra hands at the animal shelter during flooding or some such.

The main thing I would want is to assert this defense is to be able to point to documented instance where I responded voluntarily to an emergency in the community. (So if you go help at the temporary shelter, make sure you sign in!) I would not depend just on having a First Aid card or some other certification.

I agree with you, though I think with the low penalty some may be willing to risk just having a volunteer card, since the likelihood of having to defend themselves is so small.

ELB wrote:

ScottDLS wrote: ... the State would have to prove, beyond a reasonable doubt, that you are NOT an emergency services volunteer.

No, I don't think so, at least as I understand defenses to prosecution. I think the State only has to prove the elements of the offense, i.e. defendant was given proper notice, was in a prohibited area, etc. The defendant has to assert the defense, and first he has to convince the judge that he has evidence to support the defense before being allowed to raise it at trial. If the defendant is a member of a VFD and can show regular attendance, training, has responded to calls for service etc, I think that is a slam dunk. If all the defendant has is a Red Cross First Aid card...that might not be so convincing to some judges.

Assuming the judge lets the defendant raise the defense, then still I think all the State has to prove beyond a reasonable doubt are the basic elements of the offense. The defendant can show his first aid card to the jury, and THEN if the jury has any reasonable doubt about whether it applies or not, they are supposed to acquit. I'm sure the prosecution, if it has taken the trouble to bring this to trial, will attack this defense, but I don't think the State has to prove beyond a reasonable doubt that the defendant is not an emergency service volunteer, the State only has to prove the elements of the basic offense.

That's not how a Defense to Prosecution works. If you bring evidence of it up at trial, the Prosecution MUST refute it beyond a reasonable doubt. The burden is on the State. SO they have to prove that you are NOT an emergency services volunteer. I would certainly recommend that you have some evidence that you are, in fact, one. But if you had a Red Cross Emergency Volunteer card, it would technically be up the prosecution to prove that you are NOT a volunteer. There is no legal question whether the judge should "allow" you to raise the defense. It's provided by a law. Of course a judge could do whatever they want, but would be setting you up for a successful appeal (of your $200 ticket) if they didn't let you raise it.

What all this has made me consider is whether I should volunteer to work with the Red Cross. I've considered it for some time just as charitable work. If I did it for that, and I happened to be able to carry in 30.06 locations that would be nice. Considering the small chance of being charged, the fine only, and other factors, I believe this Defense is essentially the end of 30.06 enforcability for anyone who actually is a an Emergency Services Volunteer. So much for the grand tradition, dating to the Republic, of Property Owners' rights over others...

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

RoyGBiv wrote:

Ameer wrote:It says "any individual who, as a volunteer," not "any member of a volunteer organization" so I don't think any individual is required to join anything, carry a membership card, or have any special training or certification beyond their LTC to qualify.

If we help others during emergency situations and we don't get paid for it, we can bypass 30.06 signs next month.

I am inclined to disagree with this, but hope I am wrong.
I wouldn't want to be facing a UCW charge without having a clear association with an emergency volunteer organization to lean on.

IMO. YMMV.

Unless you were in one of the few places where you could be charged under 46.035 (Church, Amusement Park, Hospital) you would only be facing a class C. If it really came down to a trial (in JP or Municipal Court ) the State would have to prove, beyond a reasonable doubt, that you are NOT an emergency services volunteer.

TreyHouston wrote:Im sure Charles will give us the full breakdown after session is over

No I think this happened at least 10 years ago.

Thank you for the insight. I understand that you can't go into detail. It's interesting that as you note LEO's, judges, LTC, etc. are all in the same 46.15 as are traveling and sporting activities... And all this appears to date back 20 years to 1997. Quite interesting.

Charles L. Cotton wrote:

dhoobler wrote:Unless the law says "It is a defense to prosecution" to have a LTC, it is not a defense to prosecution to have a LTC. The law prohibiting carry does not apply to a person with a CHL. No defense to prosecution is needed. No amount of mental gymnastics will alter that fact.

Sorry, but this is wrong. While a deal was cut years ago to use the phrase "not applicable," there is case law that holds the Code means exactly how it reads. Unless a code provision is prefaced with "It is an exception to the application of . . . ." then it's a defense to prosecution. This is why we passed the Motorist Protection Act (HB1815 - 2007) with language that changed the elements of the offense, rather than battle the DA's association over exceptions, "not applicable," etc.

Chas.

I thought I remembered you saying that once. I kept all my old CHL handbooks and I noticed that the 1997-8 one was where the 46.15 "Do Not Apply" language was added. Are you saying that not using the exacting wording from PC 2.02 for an Exeption was intentional on the part of the Legislature as a compromise? Or was it simply held so later by the courts at the urging of the Harris County DA?

dhoobler wrote:If I remember correctly, the MPA took two tries. The first attempt retained the "Defense to prosecution" language. The Harris county DA at the time declared that nothing had changed and that he wold continue to prosecute persons charged with having a handgun in their vehicle. The second round remove the "Defense to prosecution" language and made it not applicable.

I stand by my claim that carrying a concealed handgun with a LTC is not equivalent a member of the Texas State Guard passing a 30.06 sign with a concealed handgun. One is not applicable. The other depends on a defense to prosecution.

No, the first try defined the MPA as "Traveling" which is in the same section of the code as LTC, or being a cop. And the Harris County DA made a stink, though apparently never followed up with any prosecutions. Then in 2007 the offense itself was changed to make it not a crime to carry (concealed) in your car.

dhoobler wrote:Unless the law says "It is a defense to prosecution" to have a LTC, it is not a defense to prosecution to have a LTC. The law prohibiting carry does not apply to a person with a CHL. No defense to prosecution is needed. No amount of mental gymnastics will alter that fact.

If you were arrested for for something for which you had a statutory exemption (which is something entirely different from a defense to prosecution), I would think that you have a false arrest case against someone.

The hypothetical case of a police officer having to use a "defense to prosecution" as opposed to a civilian is spurious. Prior to the CHL law, it was common for persons who were travelling to be arrested for carrying a handgun, in spite of have a defense to prosecution. I have never heard of a police office having to use such a defense.

Sorry but I don't think this isn't the way Texas penal code works. In Chapter 2 "Burden of Proof" is where the concept of an Exception, Defense to Prosecution, Affirmative Defense, etc. are set out. There isn't a specific concept of "Does Not Apply" set out. So the courts have interpreted the words in 46.15 "Do Not Apply" to be a Defense to 46.02/3 charges, as they were specifically before 46.15 was introduced. Just because before 46.15, people were arrested for unlawfully carrying a handgun while "traveling" and while "being a cop", doesn't mean they were more or less subject to the law, nor would it provide any more of a case for false arrest, than any other Defense OR EXCEPTION. If they wanted to provide an Exception to LTC and Cops and Travelers the legislature could have used the language "It is an exception to the application of (46.02/3) that.....". Or they could have done so in 46.02 like with MPA, and simply eliminated the crime of carrying a handgun on or about your person (while in a car).

An EXCEPTION does not prevent or (necessarily make unlawful) an arrest for something where you have the Exception. It simply means that the Prosecutor must refute the exception in the charging instrument. If he doesn't do so, the judge should dismiss the charges at arraignment, or at least before trial. For a Defense the judge can make you wait for the trial to raise your Defense, although it would be a waste unless some doubt existed as to the validity of the Defense. If 46.15 were an Exception, it would apply just as much to someone "traveling" and carrying a handgun, as it does to a cop carrying a handgun.

The crux if the issue is what do the words "Do Not Apply" mean in 46.15 as it relates to the Burden of Proof for the State. The courts have said the State must meet the "burden of proof" as set out in PC 2.03 Defense, which is proving AT TRIAL your Defense is invalid BEYOND A REASONABLE DOUBT. For an Exception the State must refute your exception in the charging instrument BEFORE trial.

dhoobler wrote:The original SB 60 passed in 1995 did say that a CHL was a defense to prosecution. The law was changed in later legislatures.

The difference is significant. One can be arrested and charged for an offense in spite of the law providing a defense. One cannot be arrested for an offense that does not apply to that person.

Look at what I posted above. The language in PC 46.15 is not sufficient to provide a PC 2.02 exception, therefore it has been held to be a Defense. 46.02 itself does not have an exception or defense stated, 46.15 does. So you can theoretically be arrested for carrying with a LTC or while being a cop. You can ALSO be arrested for something which has a statutory exception, but you can't be charged formally unless the charging document refutes the exception. For a Defense like 46.15 you can also be charged then have to raise the Defense at trial.

dhoobler wrote:Defense to prosecution IS exact language in TPC, such as is used in 46.02:

]It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.

A license to carry is not a defense to prosecution. The law prohibiting carry does not apply to a person with a LTC.

"Does not apply" is not a PC 2.02 "exception to the application of...." because it is not so labeled. Therefore it has been ruled a Defense. I'll dig up the most recent case, but this has been held since the creation of 46.15 in 1997. In 1995-6 LTC and "being a cop" was specifically labeled as a Defense.

ETA:

mgart v. State
No. PD-1358-15 3/1/17
Issue:
Under the Private Security Act (Occupations Code Chapter 1702), are the provisions that say the Act “does not apply” to law enforcement personnel considered exceptions (that must be negated by the State in its charging instrument) or defenses (that must be raised by the defendant)?
Holding:
Defenses that the defendant must raise. The Court concluded that if a defensive matter does not use the exact wording for exceptions outlined in Penal Code §2.02, it is not an exception or affirmative defense but instead a defense that is governed by Penal Code §2.03. The State has no burden to negate defenses governed by §2.03 in the charging instrument. Even though the heading in Subchapter N of the Private Security Act is titled “Exceptions,” the heading does not limit or expand the meaning of the statute itself. Furthermore, the Court specifically addressed how §§2.02 and 2.03 apply to offenses outside the Penal Code. Read opinion.
Commentary:
Most importantly, the Court holds, consistent with several lower courts, that the statutory language “does not apply” means a defense rather than an exception. A holding to the contrary might have blown up thousands of cases around the State because there are many defenses in Texas statutes labeled “does not apply” rather than “it is a defense.” The holding that §§2.02 and 2.03 can apply to offenses outside the Penal Code is good but less important.

dhoobler wrote:Where is TPC does it say that a LTC is a defense to prosecution?

Because 46.15 doesn't use the EXACT language "It is an exception to the application of (46.02)" it has been ruled at appellate level, only a defense. There was a thread recently where someone gave the most recent case, but Charles Cotton has mentioned this previously. It's due to the statutory interpretation of the PC 2.02.

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."

If the code is so labeled, the DA must refute the exception in the charging instrument, though you are theoretically still subject to arrest.

In the case of 46.15 the code is not so labeled.

PC §46.15. NON-APPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
...

So it is only a Defense.

Just saying, the LTC itself is only a defense, as is being a police officer. So you take the chance of being arrested for a felony every time you carry in a "blue" county supermarket that sells beer. Whereas a 30.06 violation is only a class C ticket.

dhoobler wrote:

TreyHouston wrote: Also, just to be clear. A TXSG member is no longer affected by 30.06 or 30.07 at all, on duty or not?

I don't think this is necessarily true. HB 435 provides a defense to prosecution to members of the TXSG for TPC 30.06 while in uniform and 30.06/30.07 while off duty. I think you can still be cited. If you were, you would have to raise that defense at trial.

In reality, must cops won't cite you. In reality, most DA's won't accept the charges when they learn that the defendant has a built in defense. There is no guarantee. I would not be surprised if the DA of a blue county (Harris?) pursued charges just because they don't like mere citizens carrying firearms.

46.15 provides a only "defense to prosecution" for Peace Officers carrying a firearm ON DUTY, as does a LTC for someone carrying under the authority of it. Police could be arrested for carrying on duty and if the DA accepted the charges, they would have to raise the defense of being a peace officer at trial or they would be convicted for UCW. I'm not sure I'd want to be the proverbial test case.

Liberty wrote:They can always ask you to leave. Refusal would be tresspassing.

Not if the reason they asked you to leave was that you were open carrying. I predict a rash of circle slash "firefighter hat" signs which is the worldwide accepted legal trespass notice meaning specifically:

30.05 Criminal Trespass Notice - Emergency Services Personnel whether volunteer or employed by a government agency do not have the permission of the owner or anyone with apparent authority to act for the owner enter this property.

To enter past the circle / firefighter hat would be a class A misdemeanor if you were armed. All of this is simply a reflection of one of the "most precious threads" in the bundle of Texas private property rights.