Link to PDF of ruling from Court of Criminal Appeals: http://www.search.txcourts.gov/SearchMe ... 2049240589
Emphasis below is mine. Note that this is not necessarily new case law, it's just the most definitive I've seen from the CCA.
This (PC 2.02/2.03) really needs to be addressed by our legislators this session. Under this case law - as an extreme example - it is now an arrestable offense for a police officer to carry a gun; the state does not have to address his/her status as an officer when charging and the officer must prove up their status as a defense at trial since PC 46.15(1) is a defense, not an exception. Surely that isn't what the legislature intended.Baumgart v. State
No. PD-1358-15 3/1/17
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)?
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.
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.