What signs will bar entry to a business for CC person if legislation passes?

[rotor]

So what is the significance of the term "it is a defense to prosecution" in 30.05 if someone has an LTC?

 

[ScottDLS]

So what is the significance of the term "it is a defense to prosecution" in 30.05 if someone has an LTC?

It was added in 2001 to make it clear that 30.05 didn't apply to CHL if the only reason for the exclusion was handgun carry. By any reasonable reading of the 30.06 law passed in 1997, 30.05 was already moot for CHL, but the Defense was added as a "belt and suspenders" approach.

 

[rotor]

It was added in 2001 to make it clear that 30.05 didn't apply to CHL if the only reason for the exclusion was handgun carry. By any reasonable reading of the 30.06 law passed in 1997, 30.05 was already moot for CHL, but the Defense was added as a "belt and suspenders" approach.

There seems to be some misinformation that 30.05 is sufficient to keep an LTC holder out and my belief was that it was not.

 

[toddnjoyce]

It also means that eff. 1 Sep, an LTC holder could be cited solely on a 30.05 sign and have to go to trial to enter the their defense to prosecution of being a license holder.

Is that an edge case? Don’t know yet, but at least one jackass property owner in the Houston area appears to be ready to find that edge.

Maki the guard dog sniffs out guns on customers at 5 malls across Houston

Maki, a four-year-old Belgian Malinois, will help make sure customers comply with company...

www.houstonchronicle.com

There seems to be some misinformation that 30.05 is sufficient to keep an LTC holder out and my belief was that it was not.

If you’re implying I’ver said the new 30.05 sign prohibits entry by LTC, I’ve never said that. I’ve consistently said that an LTC holder does not have a specific exception from being charged, they do have a defense at trial. While that’s cutting hairs in the law, it’s exactly correct.

 

[Rhino]

Is that an edge case? Don’t know yet, but at least one jackass property owner in the Houston area appears to be ready to find that edge.

Maki the guard dog sniffs out guns on customers at 5 malls across Houston

Maki, a four-year-old Belgian Malinois, will help make sure customers comply with company...

www.houstonchronicle.com

I think I'd like to dirty up my pants with a TON o' Gunpowder and cross ahead of that dog a bunch. Maybe even sprinkle some around the place.

 

[rotor]

It also means that eff. 1 Sep, an LTC holder could be cited solely on a 30.05 sign and have to go to trial to enter the their defense to prosecution of being a license holder.

Is that an edge case? Don’t know yet, but at least one jackass property owner in the Houston area appears to be ready to find that edge.

Maki the guard dog sniffs out guns on customers at 5 malls across Houston

Maki, a four-year-old Belgian Malinois, will help make sure customers comply with company...

www.houstonchronicle.com

If you’re implying I’ver said the new 30.05 sign prohibits entry by LTC, I’ve never said that. I’ve consistently said that an LTC holder does not have a specific exception from being charged, they do have a defense at trial. While that’s cutting hairs in the law, it’s exactly correct.

I was not referring anything to you. Sometimes in these posts people think they are being referenced. My reference is to a youtube video on permitless carry.
As far as a 30.05 notice and going to trial, all of the 30.06/07 wording uses "it is a defense to prosecution" wording right now so if it ever went to a judge that would be the defense. The "defense" in 30.05 is no different that that in 30.06/07.
To be clear, the only reference to you was the dark humor post, a different subject.

 

[ScottDLS]

It also means that eff. 1 Sep, an LTC holder could be cited solely on a 30.05 sign and have to go to trial to enter the their defense to prosecution of being a license holder.

Is that an edge case? Don’t know yet, but at least one jackass property owner in the Houston area appears to be ready to find that edge.

Maki the guard dog sniffs out guns on customers at 5 malls across Houston

Maki, a four-year-old Belgian Malinois, will help make sure customers comply with company...

www.houstonchronicle.com

If you’re implying I’ver said the new 30.05 sign prohibits entry by LTC, I’ve never said that. I’ve consistently said that an LTC holder does not have a specific exception from being charged, they do have a defense at trial. While that’s cutting hairs in the law, it’s exactly correct.

I've said it before, but this business of a Defense to Prosecution vs. exception to the application of this statute vs. the conduct just not being unlawful is a distraction.

As of today and for the last 26 years...the carrying in public of a handgun is illegal under TXPC 46.02/3, but it has Defenses to Prosecution as laid out in TXPC 46.15. Ah but 46.15 is an exception you say! No, it isn't. Because the 46.15 non-applicability doesn't use the exact words "it is an exception to the application of xxxx that". Therefore it has been ruled (at the appellate level) to be a Defense.

So a Texas Peace Officer (LEO), on duty, only has a Defense to 46.02 unlawful carry of a weapon. Same as for a LTC.

Non-applicability, Defense, and Affirmative Defense are just standards of proof laid out in the Penal Code.

If you don't want to avail yourself of something that only has a Defense, then you shouldn't carry under LTC, or at the range, or while hunting, or while "being a cop", because all these things (currently) are only a Defense to Prosecution.

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 . . . ."
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

Sec. 2.04. AFFIRMATIVE DEFENSE.
(a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

 

[Renegade]

As of today and for the last 26 years...the carrying in public of a handgun is illegal under TXPC 46.02/3, but it has Defenses to Prosecution as laid out in TXPC 46.15. Ah but 46.15 is an exception you say! No, it isn't. Because the 46.15 non-applicability doesn't use the exact words "it is an exception to the application of xxxx that". Therefore it has been ruled (at the appellate level) to be a Defense.

46.15 is not an exception or a defense. 46.15 repeatedly uses the term "does not apply". The problem is, who/when is it determined it does not apply. I know several folks who beat the rap but not the ride on 46.15.

Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(b) Section 46.02 does not apply to a person who:
...

 

[ScottDLS]

46.15 is not an exception or a defense. 46.15 repeatedly uses the term "does not apply". The problem is, who/when is it determined it does not apply. I know several folks who beat the rap but not the ride on 46.15.

Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(b) Section 46.02 does not apply to a person who:
...

It has been ruled a Defense in an appellate case in Houston (make me look it up and I will ). Prior to 1997 it was explicitly a Defense (I have my CHL Handbook from 1995/96 when I first got my license).

Per Chapter 2 of the Penal Code (Burden of Proof), and exception must be so labeled (it is an exception to the application of ...).

Further if it isn't and Exception or an Affirmative Defense, then it is a Defense, note section e.

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

 

[Renegade]

Further if it isn't and Exception or an Affirmative Defense, then it is a Defense, note section e.

Why cant it be just what it says it is.

And that appellate case, is it based on the old statutes or the new ones?

 

[toddnjoyce]

I've said it before, but this business of a Defense to Prosecution vs. exception to the application of this statute vs. the conduct just not being unlawful is a distraction.

It may be a distraction to you, but it is a change in the law. I’m willing to bet most people don’t know what the codes say, much less what it means and the operation of the law.

Today, barring a 30.06 or 30.07, there is not any other legal means of providing written notice prohibiting entry with firearms by a license holder. Come 1 September, there will be one due to a change in the code, and the signage for 30.05 isn’t required to be verbatim as 30.06 and 30.07 are.

In my mind, solely posting 30.05 signage is going to give some business owners a false sense that it will keep all guns out of their place of business, and some LTC holders aren’t going to be aware they could wind up in court given a zealous business owner and DA like one might find in Austin, DFW, Houston, San Antonio, or El Paso. In other instances, some LTC holders may mistakenly think 30.05 signage is the same as 30.06/.07, which it’s not.

I believe an ounce of prevention is worth a pound of cure. If we can at least have the discussion so that LTC holders can understand what the these changes mean and how they can play out, then that’s all that matters.

 

[ScottDLS]

Why cant it be just what it says it is.

And that appellate case, is it based on the old statutes or the new ones?

It can't be what it says it is because it is not defined in the Burden of Proof in Chapter 2. Since carrying a handgun in public is (currently) illegal, you have to have an exception, defense, or affirmative defense in order to do it and not get prosecuted.

The appellate case was shortly after 46.15 became a section in 2001 I think. There is no new law until 9/1, but the 46.15 non-applicability that remain are still defenses as the language hasn't changed. The good news is a lot of things that used to be Defenses under 46.15 are simply not crimes under 46.02 any more.

 

[Renegade]

It can't be what it says it is because it is not defined in the Burden of Proof in Chapter 2. Since carrying a handgun in public is (currently) illegal, you have to have an exception, defense, or affirmative defense in order to do it and not get prosecuted.

The appellate case was shortly after 46.15 became a section in 2001 I think. There is no new law until 9/1, but the 46.15 non-applicability that remain are still defenses as the language hasn't changed. The good news is a lot of things that used to be Defenses under 46.15 are simply not crimes under 46.02 any more.

"Does Not Apply" is self-defining.

I am surprised this did not go all the way to CC/A.

 

[ScottDLS]

It may be a distraction to you, but it is a change in the law. I’m willing to bet most people don’t know what the codes say, much less what it means and the operation of the law.

Today, barring a 30.06 or 30.07, there is not any other legal means of providing written notice prohibiting entry with firearms by a license holder. Come 1 September, there will be one due to a change in the code, and the signage for 30.05 isn’t required to be verbatim as 30.06 and 30.07 are.

In my mind, solely posting 30.05 signage is going to give some business owners a false sense that it will keep all guns out of their place of business, and some LTC holders aren’t going to be aware they could wind up in court given a zealous business owner and DA like one might find in Austin, DFW, Houston, San Antonio, or El Paso. In other instances, some LTC holders may mistakenly think 30.05 signage is the same as 30.06/.07, which it’s not.

I believe an ounce of prevention is worth a pound of cure. If we can at least have the discussion so that LTC holders can understand what the these changes mean and how they can play out, then that’s all that matters.

With the new law, there is no other legal means than 30.06/7 of providing notice to a license holder. There never was since 1997, when 30.06 was passed and made 30.05 moot for license holders. In 2001 a Defense to 30.05 for license holders was added (unnecessarily, because normal statutory construction already made it moot). 30.05 doesn't apply to license holders re: carrying a handgun. It hasn't since 1997, and arguably never did. Now you even have a Defense.

DA's who prosecute cases where there is clearly a Defense, will start to piss off judges and eventually start getting their cases thrown out. Theoretically you can get arrested and charged for something you didn't do, that wasn't a crime even if you did it, but if we're worried about that, then maybe never leave the house.

 

[ScottDLS]

"Does Not Apply" is self-defining.

I am surprised this did not go all the way to CC/A.

Then what does "Does Not Apply" mean in the context of Burden of Proof in Chapter 2? Is the prosecutor required to negate the "Does Not Apply" in the charging document as he is in the case of "it is an exception to the application of..." ? Apparently not, because the judge in the Houston case, as affirmed by the appeals court let it go to trial.

TXPC 2.02
...
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
...

 

[Renegade]

Then what does "Does Not Apply" mean in the context of Burden of Proof in Chapter 2? Is the prosecutor required to negate the "Does Not Apply" in the charging document as he is in the case of "it is an exception to the application of..." ? Apparently not, because the judge in the Houston case, as affirmed by the appeals court let it go to trial.

TXPC 2.02
...
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
...

It has nothing to do with 2.02.

If it does not apply, it effectively does not exist.

 

[ScottDLS]

It has nothing to do with 2.02.

If it does not apply, it effectively does not exist.

Then what is the burden of proof if you are charged with unlawfully carrying a weapon (handgun)? Is the prosecutor required to negate, beyond a reasonable doubt, the "does not apply" (due to having LTC) in the charging document (at arraignment) or have the case dismissed? Apparently not, because that's not what the appeals court said.

Or should the judge accept the charges and allow the case to go to trial where then your attorney must raise the "does not apply" as a Defense? Chapter 2 of the penal code sets these procedures out in statute. The determination of the legal meaning of "does not apply" as used in TXPC 46.15 was found to be that of a Defense to Prosecution in an appellate court. That makes it determinative until the court of criminal appeals says otherwise, or the Legislature sorts it out by adding the correct statutory language.

 

[Renegade]

Then what is the burden of proof if you are charged with unlawfully carrying a weapon (handgun)? Is the prosecutor required to negate, beyond a reasonable doubt, the "does not apply" (due to having LTC) in the charging document (at arraignment) or have the case dismissed? Apparently not, because that's not what the appeals court said.

Or should the judge accept the charges and allow the case to go to trial where then your attorney must raise the "does not apply" as a Defense? Chapter 2 of the penal code sets these procedures out in statute. The determination of the legal meaning of "does not apply" as used in TXPC 46.15 was found to be that of a Defense to Prosecution in an appellate court. That makes it determinative until the court of criminal appeals says otherwise, or the Legislature sorts it out by adding the correct statutory language.

That was my original point in post #48

46.15 is not an exception or a defense. 46.15 repeatedly uses the term "does not apply". The problem is, who/when is it determined it does not apply. I know several folks who beat the rap but not the ride on 46.15.

 

[ScottDLS]

That was my original point in post #48

46.15 is not an exception or a defense. 46.15 repeatedly uses the term "does not apply". The problem is, who/when is it determined it does not apply. I know several folks who beat the rap but not the ride on 46.15.

I agree that by language, it is neither. By case law the 46.15 "Do Not Apply" sections are Defense(s) to Prosecution. Since 46.15 (currently) is where Peace Officers get their authority to carry, they are theoretically in the same boat as people using other 46.15 sections.

Under the new law, the situation is somewhat better. Carrying a handgun in public is generally no longer a crime. You only need the 46.15 authority of LTC in some limited cases.

Even for statutory exceptions, there isn't technically a prohibition on you being arrested, just supposedly on being charged.

There are also numerous examples of people "taking the ride" for carrying long guns, even though it is not a crime.

I won't live my life in fear of taking the proverbial ride, particularly when the crime (that I didn't commit) is a no-jail class C misdemeanor citation for $200, as in the case of 30.05 under the new law.

 

[toddnjoyce]

I was not referring anything to you. Sometimes in these posts people think they are being referenced.

Fair enough.