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.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"