Rule clarification please...

[thetexan]

Under 46.035 Unlawful Carrying...

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.

b4, b5, b6, and c deal with hospitals, nursing homes, amusement parks, churches, and meetings of government entities.

That seems to be clear. You CAN carry concealed in these locations unless there was notice as per 30.06 which includes verbal, written, and signage notification.

I get from this that, like any other non-listed location, unless there is 30.06 notification, you can carry into these locations.

Am I reading this correctly?

tex

[The Annoyed Man]

Yes. And the list is about to change if a bill currently in the legislature passes. It will eliminate houses of worship, amusement parks, and hospitals from the list entirely.

Currently the way the law reads is that carrying in those places is actually forbidden for CHL, but lack of a 30.06 sign constitutes a defense to prosecution. If the new law passes (I am currently unaware of its status) or has passed, then those places (churches, 6-Flags, hospitals) are no longer forbidden to carry, and therefore there is no defense to prosecution necessary any longer. However, they can still post 30.06. It's not so much a change in how you experience CHL as a license holder as a practical matter, as much as it is a change in how the law views CHL.

[cb1000rider]

What a mess...

[thetexan]

Thanks for the clarification. I will take issue with one point however.

Paragraph (i) is a stand alone paragraph under section 46.035 and does not mention 'defense to prosecution' in the language. This is a conspicuous absense since other paragraphs do use that language. It seems as straight forward language that the prohibitions listed above it simply do not apply.

tex

[ELB]

Thanks for the clarification. I will take issue with one point however.

Paragraph (i) is a stand alone paragraph under section 46.035 and does not mention 'defense to prosecution' in the language. This is a conspicuous absense since other paragraphs do use that language. It seems as straight forward language that the prohibitions listed above it simply do not apply.

tex

There is another section of the Texas statutes, that I do not have at my finger tips, that essentially says that unless something is defined as an "exception", then it is a "defense to prosecution" regardless of whether it uses that specific language or not.

[The Annoyed Man]

Thanks for the clarification. I will take issue with one point however.

Paragraph (i) is a stand alone paragraph under section 46.035 and does not mention 'defense to prosecution' in the language. This is a conspicuous absense since other paragraphs do use that language. It seems as straight forward language that the prohibitions listed above it simply do not apply.

tex

Here is the language:

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply
if the actor was not given effective notice under Section 30.06.

"Defense to prosecution is not mentioned in this paragraph because it is generally against the law to carry a concealed firearm in Texas, but possession of a valid CHL is a defense to prosecution against that law. So in any matter regarding the carrying of a concealed firearm, the default is that it is illegal except in certain circumstances as defined by CHL, which make defenses to prosecution within narrowly defined parameters *. It this were not so, we would be a Constitutional Carry state.

* Those narrowly defined parameters permit you to carry almost anywhere.

[sking]

I was taught there's a difference between when a law does not apply and a defense to prosecution in that law. For example, according to my professor, the following is different than the CHL defense to prosecution in Sec. 46.035 if there's no 51% sign:

Code: Select all

Sec. 46.15.  NONAPPLICABILITY.
(a)  Sections 46.02 and 46.03 do not apply to:
(1)  peace officers or special investigators

[thetexan]

I preface this with this...if there is another section of code either in the CHL law or otherwise that disputes what Im about to say then notwithstanding.....

Using the logic given, then any law or statement of affirmative code can be assumed to be a 'defense to prosecution'. ie If I go the speed limit then it is a defense against prosecution that I was going too fast.

Or...anyone under the age of 21 cannot drink. It is a defense to prosecution if the actor is 21 or over.

Any codified law implies that there is a defense to prosecution to an allegation of breaking the law by simply having obeyed the law, or code.

Here we have a assertion of legal fact stating that Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06. In other words, the prohibition stated in (b)(4), (b)(5), (b)(6), and (c) does not exist for any actor not given effective notice under Section 30.06. Stated another way, the prohibition does and only exist for an actor given notice as per 30.06.

This is considerably different language from those paragraphs such as in paragraph (h)

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9. Here, there is a conspicuous inclusion of 'defense to prosecution' language giving a mitigating exception to an otherwise prosecutable violation of the code.

I guess. That is the question isnt it.

And.....if the correct application of 30.06 is required to create the prohibition in the first place then the paragraphs (b)(4), (b)(5), (b)(6), and (c) dont even need to be listed in the first place as they fall into the 'everywhere else' catagory already austensibly covered by 30.06.

So. This is the reason I concluded that it seems to be that there is no more prohibition to entering a nursing home (as it relates to 30.06) as there is to entering a gas station or Walmart. The test for these 'everywhere else' locations seems to be this...
1. Have I had verbal notification that I cannot carry
2. Have I received written notification of the prohibition with 30.06 specifications, or
3. Is there signage that meets 30.06 specifications.

That is my thought process. Does anyone disagree with that?

tex

[Wes]

That's part of the problem, most are not clear as they should because we seem to peice meal things together over time. That is also the reason they are trying to clear some of it up, or at least the locations of carry as mentioned. Another fun one is your speed limit example actually, as in texas the speed limit is the presumed limit, which means that the posted limit isn't always the limit. It can be more or less, a lovely ambiguity that leaves others to interpret what they think the law says. Like in this case, IMO anyways.

[The Annoyed Man]

I preface this with this...if there is another section of code either in the CHL law or otherwise that disputes what Im about to say then notwithstanding.....

Using the logic given, then any law or statement of affirmative code can be assumed to be a 'defense to prosecution'. ie If I go the speed limit then it is a defense against prosecution that I was going too fast.

Or...anyone under the age of 21 cannot drink. It is a defense to prosecution if the actor is 21 or over.

Any codified law implies that there is a defense to prosecution to an allegation of breaking the law by simply having obeyed the law, or code.

Here we have a assertion of legal fact stating that Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06. In other words, the prohibition stated in (b)(4), (b)(5), (b)(6), and (c) does not exist for any actor not given effective notice under Section 30.06. Stated another way, the prohibition does and only exist for an actor given notice as per 30.06.

This is considerably different language from those paragraphs such as in paragraph (h)

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9. Here, there is a conspicuous inclusion of 'defense to prosecution' language giving a mitigating exception to an otherwise prosecutable violation of the code.

I guess. That is the question isnt it.

And.....if the correct application of 30.06 is required to create the prohibition in the first place then the paragraphs (b)(4), (b)(5), (b)(6), and (c) dont even need to be listed in the first place as they fall into the 'everywhere else' catagory already austensibly covered by 30.06.

So. This is the reason I concluded that it seems to be that there is no more prohibition to entering a nursing home (as it relates to 30.06) as there is to entering a gas station or Walmart. The test for these 'everywhere else' locations seems to be this...
1. Have I had verbal notification that I cannot carry
2. Have I received written notification of the prohibition with 30.06 specifications, or
3. Is there signage that meets 30.06 specifications.

That is my thought process. Does anyone disagree with that?

tex

Addressing the part highlighted in red: Apples to oranges. You're taking my point out of context. I speak only in relation to CHL. It IS illegal to carry a concealed handgun without a CHL. There IS specific law forbidding you to do so. Your CHL doesn't void the law. It is a defense to prosecution. If your CHL gets confiscated for some reason, you will no longer have a defense to prosecution for carrying a concealed handgun, and if you are caught carrying one concealed, outside of your vehicle (MPA applies), you will likely be prosecuted for it.

With alcohol, there is no law forbidding anyone over 21 from drinking. You don't need a license to drink if you're over 21, and you can't get a license to drink if you're under 21. With alcohol, there is no law saying you CAN drink if you're over 21. The law doesn't establish whether it is legal or illegal for anyone over 21 to drink. It leaves it alone. If there is no law saying you can't do it, a thing is automatically legal, unlike with carrying a gun. There IS however a law saying you can't drink under 21 years of age.....that law is an exception. I don't know about Texas, but in California there are some defenses to prosecution for underage drinking......like in your own home, under your parents' supervision, having a glass of wine with dinner or a toast of champaign at a wedding under parental supervision.....stuff like that.

With driving, you can't legally drive under OR over the speed limit without a driver's license. That license means that you agree to be bound by the laws. There are no public highways in Texas (or almost anywhere else in the U.S. either) without a speed limit. You agree with the acceptance of your license to be bound by those limits. (In fact, you agree to not drive with too much alcohol in your system.) Furthermore, you can get a ticket for going too slow. Try driving 25 mph in the left lane of 1-35 between Waco and Austin some time.

I agree that the law is not as clear to the layperson as it should be. I'm just talking about what is.

As far as 30.06 goes, you have to look at timeline:

1. CHL law passes. Certain places listed as off limits to CHL.
2. 30.06 passes. Certain places still off limits to CHL.
3. Language for 46.035 (i) added, stating that "Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06"........meaning that hospitals/nursing homes, amusement parks, houses of worship, and meetins of government entitiels now require 30.06 to keep you out.
4. Today, it appears that (b)(4), (b)(5), (b)(6) and (i) may be struck from the language of 46.035. IF THAT HAPPENS, here is the net effect as you will experience the law: next to nothing. That's why I wrote previously "It's not so much a change in how you experience CHL as a license holder as a practical matter, as much as it is a change in how the law views CHL."

However, you are still left with the fact that your CHL provides you with a defense to prosecution for what is an otherwise illegal activity.

[MasterOfNone]

See here:
http://www.statutes.legis.state.tx.us/D ... m/PE.2.htm
This section defines "defense," "affirmative defense," and "exception," and it indicates that:

A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

However, it does not define "does not apply," though common language would indicate that it is the same as the code in question not existing.

[thetexan]

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.....
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:...

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a govern-mental entity.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.

is legally equivalent to the following.....

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.....
(b) Unless the actor was given effective notice under Section 30.06, a license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:...

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a govern-mental entity.


If you only write out those 4 items. The fact that those 4 items were listed among others where the exclusionary clause (i) dosen't apply requires a separate sentence specifying those items. The entire paragraph could have been writen better however it doesnt change the fact that the paragraph(i) is not written as a 'defense to prosecution' sentence but as a straight forward and clear 'if these places meet 30.06 you cant and if they dont meet 30.06 you can'.

Black and white specificity makes it clear when prosecution is not pursuable by the district attorney. (whether he does or not is always dependent on his understanding of the law of course). Defense to prosecution allows a prosecutor to charge an offense against an alegation and leaves it to the defendent to use whatever defenses to the prosecution the law allows. We are seeing that in the Zimmerman case. The event meets the definition of either manslaughter or 2nd degree murder. It is up to Zimmerman to present evidence of self-defense which is the primary defense to the prosecution which always esculpates on those 2 charges.

For the purposes of my original question I dont see a practical difference as to application. If it is a 'defense to prosecution' I can try to carry in a nursing home and claim, if I am charged, that my defense is that the nursing home did not properly post notification. If it is straight forward, I should not be charged as violating anything since there is no law against it (assuming it was not posted) because the law specifically states that it allows it.

I guess this is semantics. But there is a difference between two laws where one says 'the actor may, unless...' and 'a defense to prosecution is...'

tex