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Fiftycal:
I inadvertently deleted your post. I intended to edit it and deleted it by mistake.

Sorry,
Chas.

Okay txinvestigator and Glenn, see if you guys will go along with me on this one.

Repeal 46.035(d) - we don't need it. If you're intoxicated and don't reveal your gun, then the current PI statute is fine. The gun wasn't relevant to the offense, kind of a no-harm-no-foul idea, at least as far as the gun is concerned. If you do show or pull the gun, but no one is hurt, then 42.01(a)(8 ) [Disorderly Conduct] applies and it's a Class B. This will result in loss of your CHL for 5 years. If a threat is made, then 22.07(a)(2) [Terroristic Threat] applies and it's a Class A and the CHL is lost for 5 years. If someone is hurt, then . . .

What say ye guys? We don't need no stinking 46.035(d)!

Now for the real world. We are in a problem solving mode with our friends in Austin and 46.035(d) isn't going to be perceived as a problem, so this is really an academic discussion. You guys have forced me back to the books though. At my age, when the baby lawyers see me doing research, they just start laughing and ask why I didn't tell them to do it.

Regards,
Chas.

txinvestigator wrote:

Charles L. Cotton wrote:
But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.

Sure it is. The definition for intoxication does not include the phrase "for the purposes of this section", so it is for the entire penal code. You only see the definition for the phrase "a defense to prosecution" in section 2, but the phrase is used throughout the code.

The only definitions that apply to the entire Texas Penal Code are found in Section 1.07, which states:

§ 1.07. DEFINITIONS. (a) In this code:

Intoxication is not defined in § 1.07.

The definition of "intoxication" found in § 49.01(2) only applies to Penal Code Chapter 49, "Intoxication and Alcoholic Beverages Offenses",
as shown in the following language:

§ 49.01. DEFINITIONS. In this chapter:

(2) "Intoxicated" means:

(A) not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of
two or more of those substances, or any other substance into the
body; or

(B) having an alcohol concentration of 0.08 or
more.

Since there is no statutory definition of “intoxication� for purposes of §46.035(d), the courts will look to the most liberal case law to help support a conviction. Prosecutors will argue otherwise, but even the Penal Code mandates such an approach. Look at the language in Penal Code §1.05 dealing with “Construction of the Code:�

§ 1.05. CONSTRUCTION OF CODE. (a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

(Editorial Comment: This language is scary! Centuries of English and American jurisprudence have acknowledged that penal codes place life and liberty at risk, thus they must be strictly construed so as to let citizens know precisely what conduct is prohibited. §1.05 throws hundreds of years of case law out the window.)

It’s obvious from my comments that I would like to see a more objective standard for determining intoxication for purposes of 46.035(d). However, I don’t want anyone to think I’m in favor of CHL’s getting drunk while carrying. I’ve stated my personal policy is not to drink at all when I’m carrying, which is all the time. My concern lies with some people who may let their prejudice against the CHL statute effect a judgment call as to whether someone is intoxicated. This person could be the arresting officer, the prosecutor, or any one or more people on the jury.

I will admit however, we’ve given this issue a good deal of attention, but I can’t recall ever hearing of a CHL being arrested for being intoxicated while carrying. I’m not saying it hasn’t happened, I’ve just never heard of it.

Regards,
Chas.

txinvestigator wrote:You can have 1-2 beers with your fajitas. You just can't get intoxicated and carry.

Texas Penal Code
§49.01. Definitions.

(2) "Intoxicated" means:

(A) not having the normal use of mental or physical faculties
by reason of the introduction of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.