HB 1037 (Islett) - Establishes proper exception language
Posted: Fri Feb 11, 2005 6:26 pm
Rep. Islett has introduced HB 1037 to change the language in Penal Code Section 46.15(b) from "does not apply to" to "It is an exception to the application of . . . "
This is an important change to the Penal Code section that exempts CHL holders from Section 46.02 (UCW). This language is important because Penal Code Section 2.02 requires this specific language to shift the burden of proof to the prosecution. Any other language is a "defense" to prosecution, which means the defendant has the burden to assert and prove the defense.
Here's the language in Section 2.02:
§ 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.
Regards,
Chas.
This is an important change to the Penal Code section that exempts CHL holders from Section 46.02 (UCW). This language is important because Penal Code Section 2.02 requires this specific language to shift the burden of proof to the prosecution. Any other language is a "defense" to prosecution, which means the defendant has the burden to assert and prove the defense.
Here's the language in Section 2.02:
§ 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.
Regards,
Chas.