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"Please don't be offended, I went into this detail for our non-lawyer brethren."

Thank you

Dan

phddan wrote:"Please don't be offended, I went into this detail for our non-lawyer brethren."

Thank you

Dan

These explanations are are really appreciated. It takes a while to get this to sink in. And these clear explanations really do help clear up the muddy waters..
Thanks.

Ok then...If Chuck Rosenthal was correct in his interpretation of the law in 2005, would it have been better for the state if he had recognized the "flaw" in the law, and indentified it, worked with the legislative branch and fixed it...

All the while enforcing the intent of the law that was passed and signed, knowing the fix was in the works...That was going to be inevitable...

I guess I am just not diggin how the legislative side and the enforcement side sparred on this and we get caught up in the middle of that...

Bottom line its fixed now, and I'm (and many others are) ok with it...

I think its was 24 months of un-necessary pins and needles we didn't need...

Its just the way I see it, my opinion...If I am wrong, well, its not the first time, nor the last...

stevie_d_64 wrote:Ok then...If Chuck Rosenthal was correct in his interpretation of the law in 2005, would it have been better for the state if he had recognized the "flaw" in the law, and indentified it, worked with the legislative branch and fixed it...

.

I think with Chuck it was all about the press and getting his name in in the papers. I don't believe he particularly really cares about the issue. Did he lobby at all against the new bill? My understanding is that he only offered token commentary and didn't throw much political weight. Does he have any political weight any more? His predecessor also thrived on publicity and contoversy.

stevie_d_64 wrote:Ok then...If Chuck Rosenthal was correct in his interpretation of the law in 2005, . . .

He was not correct on the law. Fresh groceries, distance of the trip, overnight bags, etc. were not relevant. If the five elements were present, then the person was traveling.

Yes, it was a presumption and an arrest would have been legal, but clearly violative of legislative intent. Remember, our CHLs and a COPs badge/ID are also "defenses" and both CHLs and LEOs can be arrested for carrying a handgun. We will win at trial, just as a person presumed to be traveling would have won at trial, but we don't see CHLs and COPs getting arrested. Why? Because it is ridiculous to arrest someone who is clearly going to beat the charge, unless you are doing it solely for harassment.

Yes, I know 46.15 is captioned "Nonapplicability," but case law holds that the only "exceptions" in statutes are those that are expressly stated to be "exceptions." Everything else is a defense.

Rosehthal doesn't get a pass on this one. I'm also keenly interested in finding out if the subject of another thread is correct about Harris County LEO's being instructed to continue to make UCW arrest if a handgun is found in a car of a non-CHL.

Chas.

Liberty wrote:

stevie_d_64 wrote:Ok then...If Chuck Rosenthal was correct in his interpretation of the law in 2005, would it have been better for the state if he had recognized the "flaw" in the law, and indentified it, worked with the legislative branch and fixed it...

.

I think with Chuck it was all about the press and getting his name in in the papers. I don't believe he particularly really cares about the issue. Did he lobby at all against the new bill? My understanding is that he only offered token commentary and didn't throw much political weight. Does he have any political weight any more? His predecessor also thrived on publicity and contoversy.

Correct, Harris County DA's Office and the Assn. of District & County Attorneys offered only token opposition. They knew the legislature was really hot about their thumbing their collective noses at the legislative intent behind HB823. Plus, they figured they would put most of their effort in killing SB378 ("Castle" Doctrine).

Chas.

Charles L. Cotton wrote:

Liberty wrote:

stevie_d_64 wrote:Ok then...If Chuck Rosenthal was correct in his interpretation of the law in 2005, would it have been better for the state if he had recognized the "flaw" in the law, and indentified it, worked with the legislative branch and fixed it...

.

I think with Chuck it was all about the press and getting his name in in the papers. I don't believe he particularly really cares about the issue. Did he lobby at all against the new bill? My understanding is that he only offered token commentary and didn't throw much political weight. Does he have any political weight any more? His predecessor also thrived on publicity and contoversy.

Correct, Harris County DA's Office and the Assn. of District & County Attorneys offered only token opposition. They knew the legislature was really hot about their thumbing their collective noses at the legislative intent behind HB823. Plus, they figured they would put most of their effort in killing SB378 ("Castle" Doctrine).

Chas.

Yep, I just kinda wish they'd have played it a little better...It was un-necessary how they put us in this pinch for 2 years...

They knew the Legislature was going to fix this, so why create the waves??? I think the publicity gained was truely for shallow purposes...And thats what makes it worse...

You know this has been one of those things that has been poking me in the side for a long time...

But it will be taken care of next time around...

stevie_d_64 wrote:
You know this has been one of those things that has been poking me in the side for a long time...

But it will be taken care of next time around...

I want to help you out on this one!

Liberty wrote:

stevie_d_64 wrote:
You know this has been one of those things that has been poking me in the side for a long time...

But it will be taken care of next time around...

I want to help you out on this one!

Known that for a while my friend...

Charles, No offense taken and I hope you took no offense at my pointing out the interpretation opposite to yours.

As to whether whether a judge can consider testimony a jury wouldn't be able to hear, there are many ways to get evidence before a jury and once there generally it can be used for any purpose. I don't think it would take a creative prosecutor much effort to get in front of the jury the location of the defendant's home and his/her destination, particularly if the defendant was stopped by the officer in the local stop and rob. Since the presumption law did not on its face redefine traveling as it had been defined in the case law, albeit with inconsistencies, I still believe a judge could use the evidence as to the defendant home and destination to overcome the presumption. On this, you and I will probably have to simply agree to disagree.

For the reasons, previously stated, I continue to believe that the presumption law did not clearly state the legislature's intent. In my career, I have seen courts interpret much more clearly written statutes exactly the opposite of what the legislature intended. And sometimes they have used "legislative intent" to do so. As a strict constructionist, I don't want courts to use "legislative intent". I want legislatures to write statutes clearly so that courts and prosecutors don't have wiggle room to read the statutes the way they want to read them.

That's why I really like 1815. If Rosenthal is still telling LEOs to arrest anyone with a gun in the car, he ought to be brought before the bar on charges.

However, I hope I end up being wrong and you end up being right on how presumptions will be handled under TPC §2.05(b), because that will make a difference in how the courts handle the new "presumption of a reasonable belief that deadly force was immediately necessary" set out in the new Texas "Castle Doctrine". I fear that with the wrong set of facts however, a court may use the argument I set forth. The old saying that bad facts lead to bad law is certainly a risk here.

Having said that it seems to me it would be much more difficult to use extraneous facts to rebut the "presumption of reasonable belief that deadly force was immediately necessary" than it would have been to rebut the traveling presumption under my interpretation of TPC §2.05(b).