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ELB

Papa_Tiger wrote: ↑Tue May 07, 2019 3:35 pm Pretty sure this only applies to condominium units where an individual owns a particular unit and has a share in ownership of the common areas, not apartment complexes which are wholly owned by a corporation or other entity. The condo management or association cannot legally forbid carrying for the owner, tenant or guests.

Again, I do not believe this applies to rental apartments where there is no individual ownership OR to assisted living facilities where the tenant is renting a unit from a corporation.

I'm not 100% sure, but I believe you are not correct.

The defense to prosecution from 30.05, 30.06, and 30.07 for condominiums (PC Ch 81 and 82) specifies that the "actor" who may employ the defense is an owner, a guest of the owner, a tenant of the owner, or a guest of the tenant of an owner.

For Residential Tenancies, PC Ch 92, the "actor" is a tenant of the leased premises, or a guest of the tenant of the premises. It looks like Ch 92 covers everything from a single room in a house rented on an oral lease up to a corporate chain of apartments as long as the residency is a permanent one (i.e. not a motel/hotel).

For Manufactured Home communities, PC Ch 94, it applies to tenants of the manufactured home lot or guests of the tenant.
Now a manufactured home community is a parcel of land consisting of at least four lots, where the tenant brings his own manufactured home to the lot. It appears there may be a small gap for one-to-three lots...but those may be covered under "Residential Tenancies" in Ch 92. For those mobile home parks where the tenants rent both the lot and the manuf home on it, I would bet those are covered under Ch 92 as well.

So I don't think that "ownership" is an element that is required to be present. In particular for apartment complexes, I think it is only required (for the defense to apply) for the "actor" to have a lease (written or oral) for a permanent residence there, or be the guest of someone who does.

It does appear that the defense applies only to the dwelling and the route to and from the actor's vehicle/parking lot. It does appear the landlord or condo assoc can restrict licensed carry or firearms in general from common/public areas. So no lounging by the pool while open carrying, for example.

ELB

RoyGBiv wrote: ↑Wed May 08, 2019 7:01 pm
So I'm not crazy? Good to know! Thanks.

Well... I didn't go that far...

ELB

Yes, an exception is stronger protection than a defense to prosecution or affirmative defense.

ELB

RoyGBiv wrote: ↑Wed May 08, 2019 10:14 am Can someone explain the differences/reasoning between "Exception to the law..." and "Defense to prosecution"?

Seems that an "exception" to being charged with the crime would be much better than a "Defense" after being charged, but, maybe I'm missing something.

Thanks!

Essentially as I understand it, if some action is an "exception" to an otherwise criminal act, that particular action is generally not illegal and you should not be arrested for that action. If you are, the DA has the burden of proof (must provide evidence) as part of the charges to show that the exception did not apply to you, and he must convince the jury beyond a reasonable doubt that the exception did not apply to you.

If some action is a "defense to prosecution" then that action is generally illegal, you may be arrested for that action, and you must provide evidence that the defense to prosecution applies to you so you can present the defense to the jury to create at least reasonable doubt that you actually violated the law.

For example, carrying a handgun is public is generally illegal. Defenses to prosecution include having an LTC, being a peace officer, and so forth.

An affirmative defense is similar to defense to prosecution, but your burden of proof is higher - you must convince the jury that the defense applies to you by a preponderance of the evidence, rather than just raise reasonable doubt.

Penal Code Title 1 Chapter 2 Burden of Proof

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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

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.

https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm

ELB

If I read this correctly it applies to both unlicensed possession and carry as well as licensed carry. In other words someone who does not have a LTC may not be prohibited by management from having a firearm and ammo in his apartment, condo, manufactured housing, or carrying it back and forth between his apartment/condo/manuf house and his vehicle. And someone who does have an LTC and lives or is a guest in the apartment/condo/MH can carry as well.

That's good.

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Re: HB 302/SB 472 - Owners/Guests/Tenants of Condos cannot be barred from Carrying

Re: HB 302/SB 472 - Owners/Guests/Tenants of Condos cannot be barred from Carrying