HB435 Volunteer Emergency Svces Carrying

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dhoobler
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Re: HB435 Volunteer Emergency Svces Carrying

#106

Post by dhoobler » Sat May 27, 2017 11:56 am

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#107

Post by ScottDLS » Sat May 27, 2017 12:31 pm

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.
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!!!!"


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Re: HB435 Volunteer Emergency Svces Carrying

#108

Post by dhoobler » Sat May 27, 2017 12:36 pm

A lot of people who were traveling while carrying a handgun got arrested, despite having a defense to prosecution. I think that the attitude of a blue county DA towards civilians versus police has to be taken into consideration.
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Re: HB435 Volunteer Emergency Svces Carrying

#109

Post by ScottDLS » Sat May 27, 2017 12:44 pm

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.
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!!!!"


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Re: HB435 Volunteer Emergency Svces Carrying

#110

Post by dhoobler » Sat May 27, 2017 1:04 pm

Where is TPC does it say that a LTC is a defense to prosecution?
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Re: HB435 Volunteer Emergency Svces Carrying

#111

Post by casp625 » Sat May 27, 2017 1:15 pm

dhoobler wrote:Where is TPC does it say that a LTC is a defense to prosecution?
I think someone posted on this forum there was a recent court ruling stating that "does not apply" is not an exception to the law, but rather a defense to prosecution.

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Re: HB435 Volunteer Emergency Svces Carrying

#112

Post by ScottDLS » Sat May 27, 2017 1:17 pm

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.
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!!!!"


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Re: HB435 Volunteer Emergency Svces Carrying

#113

Post by dhoobler » Sat May 27, 2017 1:28 pm

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#114

Post by ScottDLS » Sat May 27, 2017 1:34 pm

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#115

Post by dhoobler » Sat May 27, 2017 1:40 pm

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#116

Post by ScottDLS » Sat May 27, 2017 2:21 pm

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.
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!!!!"


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Re: HB435 Volunteer Emergency Svces Carrying

#117

Post by dhoobler » Sat May 27, 2017 3:01 pm

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#118

Post by Charles L. Cotton » Sat May 27, 2017 3:51 pm

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.

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Re: HB435 Volunteer Emergency Svces Carrying

#119

Post by dhoobler » Sat May 27, 2017 4:36 pm

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.
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Re: HB435 Volunteer Emergency Svces Carrying

#120

Post by ScottDLS » Sat May 27, 2017 5:00 pm

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!!!!"

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