TexasCHLforum.com

dicion wrote: 90 Days with Nothing to show? Denied.

thats me

infoman wrote:Again, you can't appeal a "denial" when you haven't been "denied", you're only denied when you get a letter letting you know you are denied. You can have a hearing to complain about processing times or to argue the statues, but not a denial, I promise you won't make it far on this.

I ask again, on what do you base this opinion?

You are denied by operation of law 30 days after the DPS deadline to either issue your license, give you a written denial, or send a letter of explanation with specific reasons for the delay and a reasonable estimate when the investigation will be completed. Tex. Gov't Code §411.177(c) could not be more clear. I was involved with it's inclusion in the statute and I have first hand knowledge why it was done and what it accomplished. How do you reconcile your opinion with the clear and unambiguous language of §411.177(c)?

Chas.

Mr. Cotton
I agree that at the 90 day point an applicant can be considered denied by the way the law is written. Given that, I don't understand why most people go way beyond the ninety day mark and eventually get their permit. It seems to me that the denial after ninety days means nothing just as the supposed to be issued within a certian time period means nothing. They are the DPS and they seem to do what they dang well please. I wish I had the same benifit when filing and paying my taxes.
I have been told a couple of times by the woman actually processing my application that as soon as they get a BG check from Harris County they wil be issuing me my permit. The laws as written pertaining to the process IMHO mean nothing?
Am I way off base??

Look at it this way.

The speed limit on I-635 is 60mph. The rest of the traffic is doing 75, as are you.

Just because DPS isn't stopping everyone going over 60 doesn't mean that you're OK to break the law.

That's pretty much what's going on here. DPS is going WAY over the "speed limit" and nobody is stopping them.

nitrogen wrote:Look at it this way.

The speed limit on I-635 is 60mph. The rest of the traffic is doing 75, as are you.

Just because DPS isn't stopping everyone going over 60 doesn't mean that you're OK to break the law.

That's pretty much what's going on here. DPS is going WAY over the "speed limit" and nobody is stopping them.

I'd actually think its more like they're going way UNDER the minimum 45mph Speed :P

dicion wrote:

nitrogen wrote:Look at it this way.

The speed limit on I-635 is 60mph. The rest of the traffic is doing 75, as are you.

Just because DPS isn't stopping everyone going over 60 doesn't mean that you're OK to break the law.

That's pretty much what's going on here. DPS is going WAY over the "speed limit" and nobody is stopping them.

I'd actually think its more like they're going way UNDER the minimum 45mph Speed :P

true dat

usa1 wrote:

dicion wrote:

nitrogen wrote:Look at it this way.

The speed limit on I-635 is 60mph. The rest of the traffic is doing 75, as are you.

Just because DPS isn't stopping everyone going over 60 doesn't mean that you're OK to break the law.

That's pretty much what's going on here. DPS is going WAY over the "speed limit" and nobody is stopping them.

I'd actually think its more like they're going way UNDER the minimum 45mph Speed :P

true dat

Impeding traffic is a violation too!

ok, I hate to keep beating a dead horse, but again you can't have a denial hearing, unless you have been denied. If you send a written apeal for a denial, dps may try and hurry the process or contact someone for backgrounds, but that's no different then the many legislative action sheets they get. You won't get a hearing infront of a judge, you can try, but until it happens, it's all talk at this point. Again, you can put pressure on them, you can contract your reps, etc.. but unless you are "denied", you won't get a denial hearing with a judge in court.. Denial hearings are only for people who have been denied and told they can NOT get a license(for criminal background, back taxes, child support, etc..), not for people who are "still processing" and are upset at the processing times. The difference with someone getting pulled over for speeding and getting a ticket is way off base from reality. I haven't heard of any dps employee and/or handgun instructor being "arrested" or "fined" in the entire history of CHL. I'm just trying to talk reality and the way things are, not the way things "ought to be". Until reality changes, I tend to stick with that, until I see proof otherwise.

There is more than one way to be denied.
Direct, in which you recieve a written notice because you do not meet the eligibility requirements.
Implicit, in which the department fails to act within the alloted time laid out within the statute.

Texas is a shall issue state, so the department can't just not issue the license.
So the department has to keep processing the application until complete.

If Charles says there is legal recourse (and the way I read the statues there is) then I am sure there is.

Charles has had a large part in drafting the laws that are being debated, so show a little respect.

infoman wrote:ok, I hate to keep beating a dead horse, but again you can't have a denial hearing, unless you have been denied. If you send a written apeal for a denial, dps may try and hurry the process or contact someone for backgrounds, but that's no different then the many legislative action sheets they get. You won't get a hearing infront of a judge, you can try, but until it happens, it's all talk at this point. Again, you can put pressure on them, you can contract your reps, etc.. but unless you are "denied", you won't get a denial hearing with a judge in court.. Denial hearings are only for people who have been denied and told they can NOT get a license(for criminal background, back taxes, child support, etc..), not for people who are "still processing" and are upset at the processing times. The difference with someone getting pulled over for speeding and getting a ticket is way off base from reality. I haven't heard of any dps employee and/or handgun instructor being "arrested" or "fined" in the entire history of CHL. I'm just trying to talk reality and the way things are, not the way things "ought to be". Until reality changes, I tend to stick with that, until I see proof otherwise.

Do you have facts or actual examples to back this up?
Because if you do, DPS is liable for far more.

I'm not against anyone here and I totally respect Mr. Cotton and everyone else in this debate, but again, I would like to hear if anyone has already had a denial hearing when they haven't been denied. the burden of proof is on the person making the claim. To claim that you can get a denial hearing in front of a judge in court, because you are unhappy with the processing time or waiting on a Harris Co. background, etc. I need to see the proof before I will except that as reality. The statues are written as a guide open to interpretation by attorneys, judges and the like. I want to actually see and hear about someone who actually gets a trial(when they haven't been denied in writing) before I will belief it could actually happen in reality. I can tell you what I think would happen if you filed an apeal for denial, they would treat it like a legislative actions sheet and speed up the process and get the license issued asap. It may help to get your license, but you won't get to a judge in court in an official trial. Again, I need the proof before I believe..

Charles L. Cotton wrote:

Aladinbama wrote:So ... We ??????
1) Hire (spend our hard earned money, and probably a lot of it) an attorney who is completely familiar with the controlling code provisions and case law or ....
2) Wait for DPS to do what they do (if they ever get around to doing it).

I can't answer that for you and as I stated earlier, it's not my place to discourage anyone from seeking a legal remedy. What I am asking people to consider is that doing it without an attorney carries some risk not only for the individual applicant, but for every CHL applicant. Attorneys are not necessary in J.P. court, but representing yourself in county court at law and/or the appellate courts is a recipe for disaster on this issue. Even at the J.P. court level, there is something you have to do that will have a great impact on the future of your case.

My greatest concern is that someone who is perpetually angry with the government will launch into something they are not capable of handling without an attorney and create bad case law. But again, everyone has a right to seek legal redress and if they don't want to get an attorney, then so be it.

Aladinbama wrote:OT - And to whomever PMed me, if somebody can't actually beat Rick Perry (if he runs again) in the next election, I'm moving! I mean, do you really think he's done anything to actually get re-elected (ex. look what he did for education), and if enough of the State of Texas actually thinks so ... would it be worth staying.

I'll help you pack. Rick Perry is the greatest friend Texas gun owners have ever had in the Governor's Mansion.

Chas.

I will second that Charles. We know how valuable Rick Perry is to gun owners.

quickdraw wrote:Mr. Cotton
I agree that at the 90 day point an applicant can be considered denied by the way the law is written. Given that, I don't understand why most people go way beyond the ninety day mark and eventually get their permit. It seems to me that the denial after ninety days means nothing just as the supposed to be issued within a certian time period means nothing. They are the DPS and they seem to do what they dang well please. I wish I had the same benifit when filing and paying my taxes.
I have been told a couple of times by the woman actually processing my application that as soon as they get a BG check from Harris County they wil be issuing me my permit. The laws as written pertaining to the process IMHO mean nothing?
Am I way off base??

According to Tex. Gov't Code §411.177(c), your application has been denied by operation of law when DPS is 30 days or more late in meeting its duties under the statute. This denial becomes meaningful only if the applicant decides to exercise their right of appeal. Most, perhaps all, applicants choose to simply wait until DPS issues the CHL. DPS has come to depend upon this reaction.

Chas.

infoman wrote:I'm not against anyone here and I totally respect Mr. Cotton and everyone else in this debate, but again, I would like to hear if anyone has already had a denial hearing when they haven't been denied. the burden of proof is on the person making the claim. To claim that you can get a denial hearing in front of a judge in court, because you are unhappy with the processing time or waiting on a Harris Co. background, etc. I need to see the proof before I will except that as reality. The statues are written as a guide open to interpretation by attorneys, judges and the like. I want to actually see and hear about someone who actually gets a trial(when they haven't been denied in writing) before I will belief it could actually happen in reality. I can tell you what I think would happen if you filed an apeal for denial, they would treat it like a legislative actions sheet and speed up the process and get the license issued asap. It may help to get your license, but you won't get to a judge in court in an official trial. Again, I need the proof before I believe..

Now I understand your position; it's not based upon any facts, just your interpretation of the express language of §411.177(c). While some statutes are open to interpretation, §411.177(c) is not among them. When DPS is 30 days late, it constitutes a denial and this is not the least bit ambiguous.

As for the burden of proof, that's easy to meet in such cases. All that is necessary is evidence of the date DPS received a completed application and a calendar. In fact, these will be summary judgment cases.

Chas.

it took mine jun 08 to jan 09 with no mistakes on my part, they used Ike as an excuse. This year there are even more applicants